Neutral Citation Number: [2007] EWCA Crim 1651
Case No: 200606343C1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT KINGSTON UPON THAMES 
MR RECORDER PARKER 
T20057466
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11/07/2007
Before :

LORD JUSTICE PILL
MRS JUSTICE DOBBS 
and
MR JUSTICE LLOYD JONES 
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Between :

	Jason Everton Johnson	Appellant	
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	Regina 	Respondent	

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Brereton Horne (instructed by Cotisens Solicitors) for the Appellant
James Brown (instructed by Kingston Crown Prosecution Service) for the Respondent

Hearing date : 7 June 2007  
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Judgment

Lord Justice Pill : 
1.	On 21 November 2006, Jason Everton Johnson was convicted of two offences of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of controlled drugs, contrary to Section 170(2)(b) of the Customs & Excise Management Act 1978 (count 2 cocaine, count 3 cannabis).  On 12 January 2007, Johnson was sentenced to six years imprisonment on the cocaine count and one year imprisonment concurrent on the cannabis count.  A count (count 1) alleging conspiracy to contravene Section 170 of the Customs & Excise Management Act 1979 was ordered to remain on the file.  A co-accused Ms Aishah Alfaruqi was acquitted on both counts.  
2.	Johnson appeals against conviction by leave of the single judge.  
3.	It is necessary to consider the pre-conviction history of the litigation.  At a preliminary hearing on 25 January 2006, before His Honour Judge Nicholas Jones, both defendants pleaded not guilty on both counts.  On 8 June 2006, at the request of the appellant’s legal representatives, the case was again listed before the judge.  The appellant entered a guilty plea, on a written basis of plea, to the cocaine count.  The judge ordered that a pre-sentence report be obtained and the trial of the co-accused was fixed for 3 July.  
4.	On 3 July, before the same judge, application was made to vacate the guilty the plea and the application was granted.  We do not know what the judge’s reasoning was.  Two trials of the accused were subsequently aborted and the juries discharged, the first on 4 July 2006 and the second on 10 October 2006.  The trial which led to the conviction commenced, before Mr. Recorder Parker and a jury, on 13 November 2006.  
5.	On 23 September 2005, during a routine check, customs officers at East Midlands Airport found a parcel from Costa Rica containing cocaine weighing 273 grams at 100% purity and 28 grams of cannabis.  The parcel was addressed to the co-accused, Aishah Alfaruqi, at her work address.  
6.	On 26 September 2005, crime squad officers collected the parcel from the airport and, after removing the drugs, made it available for collection at the DHL depot which was close to where the appellant worked.  At about 7 pm, the co-accused attended the depot and, having presented her passport as identification, signed for and took control of the parcel.  
7.	The co-accused was arrested outside the depot.  She said that she had gone to the depot by bus.  Soon afterwards, police saw the appellant walking near the depot and entering the yard there.  He was questioned by plain clothes officers but, having discovered that he was an employee there, they allowed him to leave. 
8.	Premises with which the co-accused was linked were searched and the police discovered that she was the girl friend or ex girl friend of the appellant.  Police searched the address where he lived.  They found nothing relating to drugs but left a message for the appellant to contact them.  When he did so on the following day, he was arrested.  
9.	When interviewed in the presence of a solicitor, the appellant denied knowledge of the drugs saying that he had been asked by his co-accused to give her a lift to pick up the parcel, which was hers and not his.  He waited in the car while she went into the depot.  When she did not return, he had attempted to find her and at that stage was questioned by the undercover police officers.  When he was charged, he said: “I didn’t know any drugs were being imported.  If I did I would not have been involved”.  In her defence statement, the co-accused said that the appellant had instructed her to collect the parcel, which contained men’s clothing.  
10.	It was not in issue that one or other, or possibly both, of the defendants committed the offences.  
11.	The co-accused, who was of good character, said in evidence that she had known the appellant for many years and had remained on good terms with him even after their relationship broke up in early 2005.  The appellant had asked her to collect the parcel.  He told her that he could not put his name on it because he worked at DHL and needed a passport which he did not have.  He did not want his current girlfriend to collect it.  When asked about the contents, he told the co-accused that it would contain branded men’s clothing from Italy for a business he was starting.  They had made several attempts to collect the parcel, the appellant waiting outside the premises on each occasion.  
12.	On 26 September 2005, when the co-accused collected the parcel, she had been expecting something bigger containing clothes.  She told the police, untruthfully, that she had arrived by bus because she was not meant to be in the appellant’s company while a complaint of assault on her by him was being investigated.  She had no idea that the parcel contained drugs and would not have collected it had she known.  The appellant was her first love and she was doing him a favour.  
13.	The appellant’s evidence was that the co-accused had asked him to drop her off at the depot so that she could pick up a package.  There had been no prior discussion about it and they had not previously been to the depot.  He was accustomed to doing her favours.  He had left the co-accused behind at the depot because of the length of time she had taken and he thought she might have found another way home.  The package was nothing to do with him.  
14.	Both defendants were cross-examined.  Evidence was given of an allegation of common assault made by the co-accused against the appellant following an argument on 1 September 2005.  By 5 October, she had withdrawn the allegation.  Evidence was also given that the appellant had pleaded guilty, following an initial denial, on an earlier occasion to a charge of possessing cocaine.  He said that he had pleaded guilty because of advice from the duty solicitor though, in fact, he did not know that cocaine was present.  He did not associate with people involved in cocaine.  
15.	As to the plea of guilty to the present counts on 8 June 2006, he said that he had not been in the right frame of mind.  He thought he was guilty in the sense that he had driven the co-accused to the depot.  The pre-sentence report accurately confirmed what he had told the probation officer but it was a story he had made up because he thought it sounded better.  The story in the basis of plea was also made up.  He denied that he had used his co-accused to distance himself from the parcel.  
16.	The first ground of appeal is that the Recorder ought not to have admitted in evidence the appellant’s previous guilty plea and written basis of plea, as confessions under Section 76(A) of the Police & Criminal Act 1984 (“the 1984 Act”) or as previous inconsistent statements.  The basis of plea, written out by counsel then appearing and signed by the appellant, stated: 
“
 1 	I Jason Johnson plead guilty of my own free will and volition to being knowingly concerned as per count 2 on the indictment.  
 2 	My role was only that of a delivery man.  I was asked to pick up and deliver a package which I agreed to.  I knew what I was doing was wrong.  However, I did not know the gravity and seriousness of what I was getting involved in. 
 3 	I have received full advice from my legal team”.
17.	On behalf of the appellant, Mr. Horne, who did not appear at the June and July 2006 hearings, submits that the earlier plea and basis of plea should not have been admitted in evidence.  Judge Nicholas Jones would not have vacated the guilty plea lightly and the recorder should not have embarked upon a voire dire to consider the correctness of the judge’s decision thereby acting, in effect, in an appellant capacity.  The admission of the plea and basis of plea were severely prejudicial to the appellant.  Once admitted as an inconsistent statement, it was admissible as evidence of any matter stated in it, by virtue of section 119 of the Criminal Justice Act 2003 (“the 2003 Act”).  A judge having agreed to vacate a guilty plea, it was unfair to allow it in evidence.  
18.	The issue was essentially between defendants, the prosecution taking no part in submissions at the trial.  The Recorder initially excluded the evidence on the basis that the fairness test under Section 78 of the 1984 Act should be applied.  On a renewed application, he had regard to Section 76A of the 1984 Act (inserted by Section 128(1) of the 2003 Act), which provides, in so far as is material: 
“(1)	In any proceedings a confession made by an accused person may be given in evidence for another person charged in the same proceedings (a co-accused) in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
(2)	If, in any proceedings where a co-accused proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained - 
(a)	by oppression of the person who made it; or 
(b)	in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, 
the court shall not allow the confession to be given in evidence for the co-accused except in so far as it is proved to the court on the balance of probabilities that the confession (notwithstanding that it may be true) was not so obtained.     
(3)	Before allowing a confession made by an accused person to be given in evidence for a co-accused in any proceedings, the court may of its own motion require the fact that the confession was not obtained as mentioned in subsection (2) above to be proved in the proceedings on the balance of probabilities.”
In our judgment the basis of plea clearly was a “confession” within the meaning of the Section.
19.	The Recorder was also referred to the decision of the House of Lords in R v Myers [1998] A.C. 124.  It was held that a defendant in a joint trial should be allowed to put voluntary statements made by the other defendant, even though incriminating the maker and not used by the prosecution, to witnesses to whom those statements were made provided that such statements were relevant to the defendant’s defence, since he had an unquestionable right to lead evidence relevant to his defence and the trial judge had no discretion, as between co-defendants, to exclude it.  
20.	The Recorder decided to conduct a voire dire to investigate the circumstances in which the guilty plea and the written basis of plea were tendered.  Both were clearly relevant to matters in issue in the case.  The Recorder heard evidence from the appellant and considered the transcript of the proceedings before Judge Nicholas Jones.  
21.	The issue at the trial must be treated as an issue as to the admissibility of evidence.  In ruling that the evidence was admissible, the Recorder clearly had in mind the provisions of Section 76A(2) of the 1984 Act.  He stated that he had come to a clear conclusion that the plea and basis of plea were not on the balance of probabilities obtained by anything said or done which was likely in the circumstances existing at the time to render unreliable the plea and basis of plea.  The confession was admissible at the request of the co-accused under S76A(1).  The judge was not required to exercise any residual discretion he had to exclude the evidence in the interests of a fair trial.  The ruling was given after the appellant had decided to give evidence.      
22.	We understand the frustration of a defendant who is permitted to vacate a guilty plea but not then permitted to enjoy the fruits of vacation by way of a trial unencumbered by the earlier plea.  On the evidence, however, the issue at this trial was essentially between the two defendants and the decision in Myers, and Section 76A of the 1989 Act, are designed to ensure a fair trial in that situation.  Moreover, once Myers and Section 76A had been brought to the attention of the Recorder, he was entitled, in the interests of a fair trial, to reconsider his earlier ruling and to take the course he did.  His earlier ruling had been made upon a misapprehension of the law, which counsel had not corrected at the time, and the Recorder was obliged to keep the issue of fairness as between defendants under review.  
23.	The directions given to the jury in the summing up, as to how to approach the evidence admitted, are not criticised.     
24.	The other grounds can be dealt with more briefly.  It is submitted (ground 2) that the appellant’s inconsistent statement to the probation officer, in the pre-sentence report, admissible under section 119 of the 2003 Act, should have been excluded on general grounds of fairness and by virtue of the general discretion to exclude evidence provided in Section 126 of the Act.  The appellant gave a detailed account of events to the probation officer which was quite inconsistent with that given by him at the trial.  We see no merit in this ground having regard to the inconsistency and the more general matters already considered.    
25.	As to character (ground 3), the Recorder admitted evidence of the appellant’s other conviction for possession of cocaine, made upon a guilty plea following an initial denial.  It was a single conviction, but a recent one, and one involving cocaine.  When directing the jury, the judge said that it may be relevant to the truthfulness of his evidence (the initial denial) and to “show that he had been involved in drugs”, potentially an important point when each of the defendants was seeking to place responsibility on the other in relation to the drugs.    
26.	In our judgment, the Recorder, upon a consideration of Section 101, and following, of the 2003 Act, was entitled to admit the evidence though, had the initial denial stood alone, we are very doubtful whether it would have been enough to demonstrate a propensity to be untruthful.  The evidence had substantial probative value in relation to an important matter in issue between the defendants (Section 101(1)(e)).  The judge’s slip in referring to the conviction as being for possession of cannabis and not of cocaine cannot have misled the jury or prejudiced the appellant.  
27.	It is further submitted (ground 4) that the Recorder ought not to have permitted the co-accused to give evidence of the allegation of common assault by the appellant made by her following an argument between them on 1 September 2005, that is before the current offences, and withdrawn on 5 October 2005, that is after the date of the offences.  It is submitted that it did not meet the requirements of Section 101, and following, of the 2003 Act.  In our judgment, it was admissible as important explanatory evidence in that, in a case depending on credibility, it gave an explanation, depending on what the jury made of it, for the co-accused to lie to the police that she had arrived at the depot by bus.  It was made clear to the jury that the allegation of assault had not been pursued and that it had no bearing on his truthfulness.  Its admission did not adversely affect the overall fairness of the trial.  
28.	The final ground of appeal (ground 5) is that the Recorder, when summarising the evidence of the police officer who had conducted the interviews, stated that “he confirmed that her solicitor had told her she was entitled to remain silent”.  The submission is that the police officer was not in a position to confirm what had passed between the co-accused and her solicitor.  There was no evidence that he had been involved.  All he could confirm was what she had said.  We see no real possibility that the jury would have been misled by the terminology or influenced by it adversely to the appellant.  
29.	In the course of his summing up, the judge put the cases for both defendants and did so in a balanced way.  The trial was conducted fairly and in accordance with law.  The grounds of appeal cast no doubt upon the safety of these verdicts against the appellant and the appeal is dismissed.