Neutral Citation Number: [2008] EWCA Crim 1816
No: 2007/3638/D2 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Friday, 25 July 2008
 
B e f o r e:
LORD JUSTICE HUGHES 
MR JUSTICE BODEY 
 
HIS HONOUR JUDGE PERT QC
(Sitting as a Judge of the CACD)  
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R E G I N A 

v 

PAUL MARSH
 
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Miss R Trowler appeared on behalf of the Appellant 
Mr Q Hawkins appeared on behalf of the Crown 
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J U D G M E N T 

1.	LORD JUSTICE HUGHES:  The appellant Marsh was convicted on 11th June 2007 of conspiracy to supply cocaine.  The trial had taken something like five or six weeks.  Three distinct grounds of appeal have been raised before us by economically framed and extremely helpful submissions on his behalf by Miss Trowler.  The first relates to the judge's refusal to admit hearsay evidence on behalf of Marsh relating to an alleged statement made in prison by a man called Rosier.  The second relates to a failure of disclosure by the Crown affecting the same man, Rosier.  The third ground complains of a comment made by counsel for the Crown in his closing speech upon the absence from the witness box of Marsh's wife.
2.	The Crown case was that a man called Thame, closely assisted by Marsh, had arranged the importation and sale of 50 kilograms of cocaine for onward transmission through a purchaser called Arber to unnamed subsequent purchasers.  The cocaine was brought into the country from the continent in a lorry by a long distance lorry driver called Coleman.  A handover was arranged at about 6 o'clock in the morning in a layby in Colnbrook on 3rd August 2006.  The handover was from the lorry driver Coleman to Arber's man called Swanson.  In the meantime Marsh had enlisted his brother‑in‑law, Church, to drive him about.  Significantly Marsh did not involve himself in the handover; he was to be found shepherding the goods and supervising from a safe distance away in his car, having passed the point of the handover some four times.  Similarly the purchaser (Arber) was not directly concerned in the handover; he too was lurking nearby in his car.
3.	There was a good deal of telephone analysis in the case, as well as surveillance evidence.  The telephone analysis showed a good deal of contact between Marsh and Thame, between Marsh and Arber, although none directly between Thame and Arber.  There was also much contact between Thame and Coleman, the driver.  Lastly, in the days before the delivery Marsh had made telephone calls to the continent and in the immediate run up to the handover Marsh had been in contact with Coleman.  The surveillance evidence included a sighting of Thame handing to Coleman a package, appropriately sized for money, shortly before Coleman left for the continent.  
4.	On his arrest Thame was apprehended doing his best to destroy various papers which demonstrated his connection with Coleman, his knowledge of Coleman's movements on the continent and his connection with Marsh.  On his arrest Marsh had handwritten notes describing Coleman's lorry and giving his telephone number and directions to the point of handover.  
5.	Church was in a different category to the other defendants.  He was a man with significant learning difficulties and it was perfectly clear that any role that he had had was peripheral, having been brought in very late on simply to drive Marsh around on the day in question.  Other than that defendant, none of the defendants elected to say anything at all when interviewed by the police.  
6.	However, faced with the evidence that there was, by the time of the trial Marsh's defence was this.  He admitted all the incontrovertible evidence, he admitted that he was taking part in a drug transaction of substance, but he asserted that he believed the drug to be cannabis.  If that was or might be true it afforded him a defence to the charge as framed, which was of conspiracy to supply cocaine, even though it would not have been a defence to a differently framed charge of possession with intent to supply, had the Crown elected to maintain such a count, which it did not.
7.	Marsh did not suggest that any of his co‑defendant conspirators had given him the impression that he was dealing with cannabis.  For that he blamed the man called Rosier.  Rosier was somebody he knew quite well.  His family home was closely neighbouring to that of Marsh's.  Rosier was by the time this contention was advanced by Marsh in custody awaiting trial on a charge of murder which, to anticipate for the sake of completeness, was subsequently proved against him.  
8.	Marsh's case was that it was Rosier who had got him to find a lorry driver, and to approach Thame for the purposes of doing that, and also Rosier who had persuaded him against his inclination to supervise the handover.  So far as his telephone calls to the continent were concerned, Marsh explained those as relating to a quite independent trade of his in smuggling cigarettes and strong beer ‑‑ illegal but not class A drugs.  Said Marsh, it was Rosier who had introduced him to Arber and that was the explanation for the telephone contact between Marsh and Arber.  That then was Marsh's defence.
9.	Thame admitted his connection with Coleman but he asserted that all that he had ever asked Coleman to do on this or any previous occasion was to bring in tobacco.  He accepted that he had been seen giving money to Coleman, but said that had been payment for tobacco smuggling.  If Coleman had brought in any cocaine, said Thame, he Thame had nothing to do with that.  Thame in his evidence supported Marsh to this extent.  He gave evidence that Marsh had asked him if he could find a suitable driver and that when he had done that Marsh had said to him that he needed a driver to bring in some cannabis for Gary Rosier.  
10.	Coleman (the driver) had earlier submitted a defence case statement in which he alleged coercion by Rosier.  That however was not his evidence at trial and he accepted that what was there said was untrue.  He partly aligned himself with Thame to the extent that he agreed that he had smuggled tobacco for Thame previously.  So far as this transaction was concerned he said that he had been asked to carry it out by Marsh, but he had been told that it was going to be cannabis.  He had it in mind to bring some tobacco as well but in the end there had not been room in the lorry so he brought the drugs.  He supported Marsh because he said in his evidence that he had been told over on the continent when handed the package of drugs to bring back that here were "three bags for Gary" ‑ that being of course a reference to Rosier.  
11.	Arber advanced a defence of duress.  He contended that he had been compelled to take the part that he had by a group of other men.  He did not assert that any of them were any of his co‑defendants.  It became clear that he too aligned himself with Marsh and the others because he suggested that the principal of these people was Rosier.  He asserted that the man whom he knew as Clampit (who was Rosier) was the user of a particular telephone with a number ending 770.  
12.	The only remaining defendant was a man called Swanson who had been Arber's runner.  He advanced a defence which did not affect Mr Rosier at all.  He contended that he had been told by Arber that he was a courier of legitimate property.  In his case this jury was unable to reach a verdict.
13.	All the defendants who advanced the contention that Rosier was in one or other manner critical to their defence were convicted.  
14.	The position of Rosier was accordingly the subject of considerable debate and evidence at the trial. The Crown made substantial admissions about Rosier.  He was a man in his mid‑forties.  He had convictions for violence, including a conviction for wounding with intent by shooting somebody else.  He also had a conviction in this country for importing into the United Kingdom a large amount of cannabis and a small amount of cocaine.  For that he had been sentenced to five years' imprisonment.  Since then he had been convicted in Belgium of participation in the possession of drugs and he had been sent to prison there also.  In addition to that, as we have already mentioned, he was currently awaiting trial on the charge of murder.
15.	Marsh gave evidence that Rosier had since his arrest uttered threats directed at his (Marsh's) family.  Marsh's wife had reported such a threat to the police.  According to her it had been a threat to burn down the house with herself and the children in it if Marsh named Rosier at his trial.  The Crown admitted that this report had been made to the police, although it contended that it was false and part of setting up what it contended was a bogus defence.  It was certainly the case that if such a threat had been made it had not deterred Mr Marsh from making Rosier the central plank of his defence.
16.	The telephone ending in 770 was one about which there was a good deal of evidence including from the defendant Arber.  The Crown also had available the records of its use.  By the time of the closing submissions and summing‑up, the Crown's position was that its user might be Rosier, although the admission was not made, but that to the extent that he might be there was no indication that Rosier was on the supply side of this transaction but rather that he appeared to be on the purchase side.  Whatever the position of the Crown may have been, the judge summed up the case to the jury largely chronologically on the basis of the sequence of telephone contacts.  In doing so he treated the telephone 770 as attributable to Rosier.  He was assisted in doing that by a schedule which had been prepared by Miss Trowler, no doubt a modification of the Crown's schedule, and which showed the interaction of the telephone attributable to Rosier with each of the various other relevant parties.  There is no doubt that as left to the jury the telephone was treated by the judge as being Rosier's and its use plainly demonstrated that Rosier was in regular contact with people on both sides of this transaction.
17.	With that background we come to the three grounds of appeal.  The first relates to the question of hearsay.  Marsh applied to have admitted the evidence of a convict called Bennett.  Bennett had made a witness statement on the first day of the trial.  In it he said he had been in prison in HMP Belmarsh at the same time as Rosier in September 2006, which would be about a month or two after the arrest of the defendants in the present transaction.  Bennett said that he had known Rosier vaguely as an acquaintance for many years.  He asserted that they confided in each other.  Said Bennett, Rosier told him that he (Rosier) had a conscience about having set up a neighbour by giving him money to collect what he told him was cannabis, whereas in fact it was cocaine.  According to Bennett he had asked for the name in case he knew the man.  He was told "Paul Marsh" but it meant nothing to him.  Then, said Bennett, two months or so after that Marsh arrived in Belmarsh.  Bennett did not know Marsh at all.  Nevertheless, the time came when Marsh, in telling Bennett why he was in prison, was overcome by distress and broke down.  That, said Bennett, led him to ask his name and, said Bennett, when told he remembered the conversation with Rosier.  
18.	Bennett was a career criminal, largely small‑time and largely a repetitive drug‑related thief.  He had however a sentence of either 10 or 12 years in 1991 for three offences of robbery and associated firearms offences, which was an entirely different proposition.  In addition to that he had recently been convicted of murder, having chased and stabbed a man on the grounds that the man had had some kind of altercation with Bennett's girlfriend in the course of a drug deal.  Accordingly Bennett was at all material times serving a life sentence in any event.  
19.	The application to admit Bennett's evidence was made under section 114(1)(d) of the Criminal Justice Act 2003.  In a reasoned judgment the judge refused to admit the evidence.  The judge accepted that, for this purpose making the assumption that the statement of Rosier was true (see section 114(2)(a)) it would in that event have plain probative value; indeed it would be central to the issue raised by Marsh's defence.  The judge referred in passing to the absence of contemporaneity and to what seemed possibly to be the rather unusual circumstances of the impulsive Rosier confession which was alleged.  However, the ground on which the judge declined to admit the evidence was the great difficulty in assessing it (see section 114(2)(h) and, accordingly (i)).  The judge rightly directed his attention not to any difficulties in challenging Bennett, but to the difficulty in assessing the veracity of what Rosier was alleged to have said on the assumption that he was shown by Bennett to have said it.  That is the right approach.  There would have been no shortage of scope for challenge to Bennett and in any event the unsatisfactory nature of a witness who is to be called provides normally no grounds for refusing to admit his evidence.  The special difficulties of hearsay relate to the difficulties of assessing the accuracy of the reported statement not of the reporter's statement.  
20.	The judge encapsulated his decision in the following succinct passage: 
"Looking at it in the round, a professional judge, sitting without a jury and without rules of evidence, would almost certainly have said, in his judgment in the case, that the evidence on its own would have been, or has been, of little, perhaps no probative value at all because he would have had no tool for proper evaluation of it.  Given that appraisal, my role as a gate keeper under section 114 bids me to decline to admit this evidence.  It is not in the interests of justice for such low grade material to be put before the jury but then only with the strongest health warning attached." 
The question for us is whether that was appealably wrong.  This was an exercise of the judge's judgment.  This court will interfere if he has arrived at it on the basis of wrong principle or has reached a conclusion outwith the available bracket to him and thus unreasonable in the Wednesbury sense; otherwise it should not.  
21.	For Marsh, Miss Trowler makes a number of specific targeted criticisms of parts of the judge's ruling.  She submits first that he was wrong to advert to the circumstances of the asserted statement being unusual.  That however was clearly a passing comment.  Secondly, she asserts that he was wrong to refer to lack of contemporaneity.  We agree that contemporaneity of Rosier's assertion to the events of which Rosier was speaking, if he did, was not in this case relevant in the sense that it might be relevant where a witness is speaking of events about which the memory may play one false.  What Rosier spoke about, if indeed he did, would not be in that category.  If he had lied to Marsh he would no doubt remember.  There was some potential significance in the absence of contemporaneity, but only to this extent.  A hearsay statement such as Rosier's made spontaneously, with no real opportunity for consideration or invention, would clearly carry more weight than one which may be made dishonestly with a view to assisting Marsh.  It seems to us that that is what the judge will have had in mind given the manner in which he was concentrating on the assessment of Rosier's assertion.  But this too was in the end a passing reference by the judge.
22.	Thirdly, Miss Trowler says that the judge was wrong to make reference to Bennett having nothing to lose by perjury.  Although the principal focus in a hearsay case needs to be the reliability of the assertion rather than that of the reporter, the reporter's reliability is a relevant factor.  It is specifically referred to in section 114(2)(f), no doubt because, as this case plainly illustrates, there may well arise a double possible unreliability.  What Miss Trowler says is that in so far as Bennett's reliability fell to be considered under section 114(2)(f), whilst he may have had nothing to fear from a prosecution for perjury, given the life sentence he was already serving, it does not follow that he had nothing to fear from Rosier if Rosier had a reputation for violence.  That however, as it seems to us, is quite neutral.  If Rosier might be vengeful that might be as great an inducement as any to remain silent whether his evidence was truthful or not.  Moreover, there is simply a total absence of any material by which anybody can assess who had the greater influence over Bennett, Rosier or Marsh, or their various associates, particularly in the rather particular circumstances of a prison population.
23.	Next, and importantly, Miss Trowler submits that the judge should have directed himself that what Rosier had said was likely to be true because it was a confession contrary to interest.  She reminds us of what this court said in R v Y [2008] EWCA Crim 10, at paragraph 58, namely.
"Absent inducement, mental instability or perhaps an incentive to protect someone else, it can no doubt normally be said that a person is unlikely to it."  
However, this was a case in which the very issue was whether if Rosier had said what he had done he had said it because it was a confession contrary to interest or because, being himself in prison facing at least the real possibility of incarceration for life and not being prosecuted for the present offence, he wanted to help his neighbour and co‑conspirator Marsh.  On any view, Marsh had Rosier were co‑conspirators in this transaction.  This is not a case in which it can possibly be assumed that the assertion of Rosier which was in question was one made without motive to assist Marsh.  That is the very question which would have arisen had the evidence been admitted.
24.	We agree with the judge that there was enormous difficulty in evaluating the truthfulness of Rosier's statement if Bennett's evidence of its making should be accepted.  We accept that the test applied to an application by a defendant defending himself on a serious charge may quite properly be less exacting than that which could be applied to an application made be the Crown.  Quite often that may well be the case.  But the interests of justice which are the governing feature of section 114(1)(d) are not wholly synonymous with the interests of the defendant.  They mean the public interest in arriving at the right conclusion in the case, including of course the acquittal of anyone about whose guilt there is proper doubt.  We are influenced in this case by the amount of other evidence available to Marsh of the involvement of Rosier.  We have largely summarised it already:  The evidence of himself, Coleman, Thame, Arber and of the schedule of telephone evidence as summed up by the judge.
25.	Next, we draw attention to a feature which did not receive much attention in the court below, namely that nobody had made any attempt to call Rosier or even to see what his current stance was.  Miss Trowler submits that it would have been pointless.  She draws attention to the way such considerations were put in a passage in the Law Commission's Report No 245 of 1997 in relation to hearsay at paragraph 4.11: 
"It will normally be impossible for a defendant to adduce the oral evidence of a person who has confessed because that person could rely on the privilege against self‑incrimination."  
That certainly would have been the position as at 1997.  It is by no means clear that it is since the passage of the Criminal Justice Act 2003.  First, it is now open to a party to call a witness and to put to him his previous inconsistent statement, provided of course that the witness gives evidence which is inconsistent with it, and, by section 119 of the 2003 Act the previous inconsistent statement is some evidence of its truth.  More significantly in this case nobody knows what Rosier's reaction might be.  If it be the case that the confession was indeed induced by a sense of guilt, it is not necessarily the case that he would fail to substantiate it in evidence, particularly if he was facing imprisonment on a much more serious charge of which he has since been convicted at the time.  We certainly accept that there was a very real possibility that what he might do would be to come to court and rely on his privilege against self‑incrimination about which he would certainly have to be warned by the trial judge.  But even that would enable the jury to see him and to take such a stance would not have been without assistance to Marsh.  Under the new rules it seems to us that it will increasingly be the case, although every case must depend entirely on its special circumstances, that there ought to be pause before admitting hearsay evidence when the maker of a statement is available to be seen by the jury and at the very least his current stance in relation to the assertion which it is sought to prove can be discovered.  As this court observed in O'Hare [2006] EWCA Crim. 512, the purpose of section 114(1)(d) is not to set aside section 116.  
26.	It may be that some judges faced with this application would have decided on balance that the evidence could be admitted, but it seems to us that it is perfectly clear that the conclusion that it should not be admitted was well within the range of proper decisions.  To admit it, at least without there being any attempt to call Rosier, would have presented the jury with a near impossible task in assessing the value of Rosier's assertion.  It seems to us, some of whom have the experience ourselves of being the fact‑finders on the basis of evidence without the assistance of a jury, that the judge's reference to the reaction of a professional judge based with this evidence were he the fact‑finder is an acute one.  Additionally, we take the view that the absence of this evidence does not in any event render the conviction unsafe given two factors: the other evidence about Rosier (to which we have already referred and which was clearly rejected by the jury) and secondly, the very clear warning or direction which the judge would admittedly have had to give about the extreme caution needed before relying on second‑hand evidence of this kind of what Rosier had said.  
27.	We turn to the second ground which also relates to Rosier, namely disclosure.  There was a good deal of disclosure about Rosier, as we have already said.  In the course of the preparation of the appeal Miss Trowler had learned incidentally that there might be an additional piece of evidence.  Accordingly we held a disclosure enquiry within the last fortnight and there was indeed.  Disclosure has now been made, according to our direction, that in June of 2006, which was about two months before the present offence, Rosier had been observed meeting and in conversation with a man called Carolan.  It had been observed because Carolan was under surveillance and was later proved to have been engaged in cocaine dealing on a substantial scale, a scale not dissimilar to that involved in the present case.  
28.	That information had been known to counsel for the Crown at the time of the trial.  He had bona fide formed the view that it added nothing to the information about Rosier already disclosed and thus he had neither disclosed it nor raised with the judge various public interest considerations relating to then ongoing enquiries.  We took the view that it ought to be disclosed.  We were of the view that even if there had at the time of trial been public interest considerations, whilst that might have meant some redaction in the material it would still have been possible to reveal that there was reason to think that Rosier had had contact (unspecified) with a man engaged or suspected of being engaged in large scale cocaine dealing.  The possible relevance of that, as it seemed to us, was that it might assist the defence of Marsh to know that within two months of the present offence there had been this contact.  The test on disclosure is whether the material might assist the defendant.  It is not whether its absence would render the conviction unsafe.  
29.	Now we do need to address the second question which is whether its absence renders the conviction unsafe.  We are quite satisfied that it does not.  First it went nowhere.  The meeting was in a public cafe, nothing changed hands, there is no evidence about what the conversation was about and the two men did not, so far as was known, have any further contact with each other or indeed any previous.  Secondly, if it was, despite these limitations, capable of suggesting an interest in Rosier in drug dealing including cocaine, that added precious little to what was already known about him.  It may be that his previous conviction in relation to cocaine had been for a much smaller amount, but he was a proven drug smaller on a large scale and on any view he was a co‑conspirator in the present conspiracy.  In addition to that, there was the history of violence.  
30.	Miss Trowler was able to make to the jury at the conclusion of an effective speech on behalf of Marsh the point that Rosier is the only other person who has been mentioned who has convictions for class A drugs; he had been convicted of drugs offences on the continent (which is what all this was about), not only on the continent but quite close to where Coleman had come from in the present case.  She was also of course able to refer to his history of violence.  Whatever the stance of the Crown may have been, the judge treated Rosier as a user of telephone 770 and summed up accordingly.  The question which mattered in the case was not whether Rosier was involved; it was whether, being involved, he had duped his neighbour Marsh.  The fresh information had no real bearing to that.
31.	Lastly, the comment on the wife's absence.  The evidence of Marsh that Rosier had threatened his family was disputed by the Crown.  Since the threats were said to have been made while he (Marsh) was in custody on remand, he was strictly speaking able to give very little firsthand evidence about it ‑‑ he certainly was able to and no doubt did give evidence of it by way of his reaction to it.  Mrs Marsh, who could have given evidence about it since she reported it to the police, was at court throughout the trial.  She was not called to give evidence.  In his closing speech to the jury counsel for the Crown referred to her absence.  He invited them to conclude that she had not been called to verify the threats because the threats were not true.  Indeed, he went on to suggest that there might have been other perils for Marsh in calling his wife because she might not have been sufficiently consistent with his evidence on other topics.  That was unwittingly, we accept, in contravention of the provisions of section 80A of the Police and Criminal Evidence Act 1984: "The failure of a spouse (or now civil partner) of a person charged in any proceedings to give evidence in the proceedings shall not be made the subject of any comment by the prosecution."  
32.	The existence of that provision was overlooked by everybody.  It may be that it is not particularly present to the minds of many people in criminal trials.  Counsel for Marsh responded vigorously in her closing speech, saying with some force that given the kind of man that Rosier was Mrs Marsh could hardly be criticised for not being prepared to give evidence incriminating him in public.  It is the fact that section 80A is the successor to a rule which came into existence at a time when there was a complete embargo upon any comment upon the absence of the defendant from the witness box.  However that may be, the rule has been reenacted in the form in which it currently has as a result of the Youth Justice and Criminal Evidence Act 1999, enacted some years after the provisions of the Criminal Justice and Public Order Act 1994 had changed the rule in relation to the defendant.  So there is no doubt that the rule remains the same.  
33.	Because the point was entirely overlooked not only by counsel for the Crown but also understandably by counsel for Marsh, whilst she made a trenchant response she did not invite the judge to direct the jury that the Crown should not have made the comment it did.  The judge himself did not advert to the point, no doubt because it was not present to his mind either.  Nor did he make any comment himself, as of course he was entitled to.  Whilst that is true, it by no means follows that if he had been confronted by being reminded about section 80A with the need to tell the jury that counsel for the Crown ought not to have made the comment he did, he would not have felt himself obliged to explain to the jury that whilst they should not guess, if satisfied that the only explanation for the absence of Mrs Marsh was that her evidence would not support her husband they were entitled so to reason.  On any view, whatever he said about it would have drawn attention to the point.  The point was likely to have been seen as significant by the jury and he would have had to deal with it.  It seems to us that he would have been effectively bound to deal with it in approximately the way we have indicated.  
34.	In those circumstances, whilst we accept that there may still be cases where now, as in 1985 in the case of Naudeer 80 Cr.App.R 9, an unjustified comment of this kind may render a conviction unsafe, we are quite satisfied that it does not do so here.  This comment was countered by a robust response and had there been any further treatment of it by the judge it would have had to have been accompanied by a direction such as we have indicated.  
35.	In all those circumstances, persuasively as these three separate grounds have been argued for Marsh, we are satisfied that this conviction is safe and this appeal must accordingly be dismissed.