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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Jones & Ors, R. v [1996] EWCA Crim 58 (03 April 1996) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1996/58.html Cite as: [1996] EWCA Crim 58

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		3rd April 1996

LORD JUSTICE KENNEDY:

1. In September 1994 in the Crown Court at Swansea, after a trial lasting 10 weeks, the appellants, Jones and Williams, together with a co-accused, Tucker, were convicted of conspiracy fraudulently to evade the prohibition on the importation of cannabis (count 1). The appellant, Barham, and two others, Fry and Sanders, were convicted of being knowingly concerned in the evasion of the prohibition on the importation of cannabis (count 2). A man named Brown on another occasion pleaded guilty to a count in a separate indictment which was the equivalent of count 2. After reports had been obtained the appellants were sentenced as follows:-

Jones- seven years' imprisonment

Williams- five years' imprisonment

Barham- ten years' imprisonment, plus a confiscation order in the sum of £189,895 or 3 years' imprisonment in default.

They now appeal against conviction by leave of the single judge. Tucker was also given leave to appeal but subsequently abandoned his appeal.

2. Outline of prosecution case

(a) Count 1.

Stephen Llewellyn was a lorry driver, residing in South Wales doing, overseas haulage work. He was also a police informer. In January 1993 Williams, whilst on home leave from prison, left the country and went to Malaga in Spain. From there he wrote to Jones who lived in Wales, and it was the prosecution case that Jones then approached Llewellyn who he had known for many years. Jones introduced Llewellyn to Tucker, who in early April 1993 suggested that Llewellyn in his lorry bring back 100-200 kilos of cannabis from Spain, for which he would be paid £200 per kilo. At Tucker's house Llewellyn also met Dennedy and heard about Williams, who was at the Spanish end of the organisation. Eventually, in late May, Llewellyn and an undercover police

officer "Bob" went to Spain in Llewellyn's lorry. There, by arrangement, they met Jones and Williams with a view to loading drugs. But on 29th May 1993 Jones and Williams suddenly deserted them, probably because they suspected that Bob was a police officer.

(b) Count 2.

On 31st May 1993 Llewellyn in Spain tried to contact Jones by telephone. As a result he was contacted by Fry, and Fry and "Paul" went to see him. They said that Jones and Williams had ripped them off, and that the drugs had gone to ground. They urged Llewellyn to have no more to do with Jones and Williams, who they described as "farmers" and they said that they would try to get Llewellyn loaded with drugs. In fact no drugs were supplied to Llewellyn on that trip but he was told by Fry that he would be contacted after his return to the United Kingdom and he was. However, before that Llewellyn visited Jones in his caravan in Wales on 4th June 1993, and Jones then sought to explain why he and Williams had driven off. It was, he said, because Rose, who was buying bail, had informed the Spanish police. Llewellyn was cautioned by Jones to have nothing to do with those who had contacted him in Spain.

When Fry did contact Llewellyn he was again repeatedly derogatory about "the farmers" and their attempts at drugs importation, and apparently made it clear that if necessary Jones would now be frightened off.

It was the prosecution case that a new deal was then set up. Barham in London provided the money, which was carried to Spain by couriers, Neil Robertson, Rita Townsend and Michael Rush. When all was ready Fry instructed Llewellyn to go to Spain to collect the drugs. There, on 11th July 1993, Llewellyn was met by Fry and Bernard Rose who supervised the loading. On return to the United Kingdom Llewellyn's trailer was parked near a public house in Wales, and on 19th July 1993 the drugs were being transferred by Brown to the van by which they were to travel to London when the police intervened and made the first arrests.

3. The Appeal of Jones and Williams

Before the trial began it was submitted to the trial judge by counsel for Jones, Tucker and Williams that counts 1 and 2, although properly joined in the indictment, should be tried separately. No defendant featured in both counts, and it was said that it would be prejudicial, particularly to Jones and Williams, for the jury in considering count 1 to have heard evidence not admissible in relation to that count, but properly admissible in relation to count 2. Counsel for two other defendants, Sanders and Atkins, opposed the application, apparently on the basis that if Llewellyn, the critical prosecution witness, gave evidence in relation to both counts there was more chance of damaging his credibility. Counsel for Barham was neutral, and so we have been led to understand was the prosecution. The judge, seeking as he said to balance the interests of the prosecution and the defence, and the interests of the individual defendants, concluded that "the scales fall clearly in favour of a single trial".

After Llewellyn had given evidence in chief counsel for Jones, Tucker, Williams and Dennedy invited the judge to discharge the jury and order separate trials of the two counts, saying that the prejudice which they feared at the outset was now manifest. The judge considered the matter afresh but ruled against the application.

The sole ground of appeal argued before us by

Mr Merfyn Hughes, Q.C., on behalf of Jones and Williams was that the judge was wrong on both occasions, or at least on one of them, (certainly with hindsight) to decide as he did. Llewellyn was, it is said, the sole nexus. The nexus was slender, and the prejudice to the appellants occasioned by a joint trial was considerable. It is conceded that the judge in summing up gave clear directions, and when he came, for instance to deal with what Fry said to Llewellyn about Jones, he reminded the jury repeatedly that such evidence could not be evidence relevant to the case against Jones, but Mr Hughes submits that the weight of evidence and its gravity was such that in reality the directions were unlikely to be heeded. Mr Hughes took us through all of the evidence which he submits that the jury would not and should not have heard in considering count 1 on its own. We have already indicated the general nature of that evidence, but a graphic example comes from the oral testimony of Llewellyn as to a conversation between himself, Fry and Sanders in a Welsh restaurant on 7th July 1993 after the drugs, the subject matter of count 2, had reached Wales. Fry asked if the trailer was far enough from the farmer (meaning Jones) and enquired if he knew anything. Llewellyn's evidence continued:

"I said to Fry that Brian Jones had been to see my wife and threatened her about me and that he had people who had come round to his house and that if they came again he'd have to shoot them; that he knew that I was doing another load and that if I or they did not call them off he was going to blow the whistle on them. Fry said 'he's a fucking idiot and he'll be sorted'. Fry didn't want Jones to know that there was anything in it."

That evidence went beyond what had appeared in Llewellyn's witness statement, and was clearly capable of being prejudicial to Jones and it is the sort of evidence which, Mr Hughes submits, should have led the judge to order separate trials. Such an order would not have added significantly to the length of the proceedings, and would have made the jury's task easier.

Finally, Mr Hughes drew our attention to the question asked by the jury after they had convicted Jones and acquitted Dennedy and Atkins. The question was:

"If we have identified the person on the tape, can we use what he said against a third person? In particular, references to Kerry Tucker on the tapes of 17th and 19th May, pages and 18 and 24 in the bundle."

That question, Mr Hughes submits, shows that the jury had not fully understood the judge's directions because the rest of the evidence in the case shows that by 17th May 1993 Tucker had dropped out of the conspiracy which forms the subject matter of count 1. Although Mr Hughes makes no complaint about the way in which the judge dealt with the question, he submits that the misunderstanding which gave rise to it must have been in the minds of the jury when they convicted Jones.

As Mr Pitchford, Q.C., for the prosecution, pointed out, the prosecution has always accepted that much of what Fry said to Llewellyn about Jones was probably exaggerated, Fry having interests of his own to serve, and Mr Pitchford submits, in our view rightly, that the question which the judge had to consider on each occasion when dealing with the applications to sever was whether during the course of the trial and in his summing up he could deal with the inadmissible evidence in such a way as to give Jones and Williams a fair trial. He concluded that he could, and, as Mr Hughes concedes, what he said in his summing up in relation to this topic cannot be criticised. Mr Pitchford goes on to submit that not too much should be read into a jury question, which may amount to no more than a request by 1 or 2 jurors to be reminded of a particular direction, or a temporary failure to appreciate how it might apply in relation to some particular piece of evidence in relation to one accused. The fact that the jury on the day that they convicted Jones also acquitted Dennedy shows, Mr Pitchford submits, that they did understand the judge's directions because there was also evidence before them which was inadmissible against Dennedy. Jones was convicted, not because of any misunderstanding by the jury but because the evidence against him, including recorded evidence of what he had said to Llewellyn in a car on 17th and 19th May, was overwhelming. The position of Williams was almost as bad, because in the witness box he conceded that when he was with Jones in Spain, meeting Llewellyn, if Jones had a dishonest purpose to serve, he, Williams would have known.

Mr Hughes accepts that when dealing with the issue of severance the judge's rulings on each occasion were a model of clarity. The judge considered relevant matters and did not consider irrelevant ones. In those circumstances we find it difficult to see how it can be said that the conclusion at which he arrived is one with which we should interfere. We do not say that the judge could not properly have decided otherwise, but the conclusion that he reached had much to be said in favour of it. It involved certain risks. The judge did all that was required of him to ameliorate those risks, and we find nothing in the jury question or in the verdicts of the jury to suggest that he did not succeed. The appeals of Jones and Williams are therefore dismissed.

4. The Appeal of Barham

Before us Mr Moses, Q.C., for the appellant, Barham, has put forward five grounds of appeal, the first three of which are closely related and are concerned with the nature of the evidence upon which the prosecution relied to show that his client was a party to the substantive offence charged in Count 2 of the indictment. The evidence fell into two categories:

(1) Circumstantial evidence:

(2) Evidence of recorded telephone conversations between other defendants and third parties which referred to Barham, and which, the prosecution submitted, was, in the circumstances, admissible evidence against him.

Mr Moses accepts that not only in a case of conspiracy, but also, as here, where a number of defendants are alleged to have committed a substantive offence, hearsay evidence of the kind to which we have just referred may be admissible, but he contends that before it can be admitted there must, to the satisfaction of the trial judge, be reasonable evidence or a prima facie case against - in this case Barham - of involvement in the common purpose, namely the fraudulent evasion of the prohibition on the importation of this consignment of 328 kilogrammes of cannabis resin. In the present case it was submitted to the trial judge that that threshold test, which he accepted and articulated, was not satisfied. He found that it was, and Mr Moses' first ground of appeal is that on the evidence before him he was not entitled to do so.

It is therefore necessary to look with some care at what we have already referred to as circumstantial evidence. Mr Moses' submission is that when examined it cannot be said to amount to reasonable evidence, or to give rise to a prima facie case, that Barham was involved in the drugs importation.

Count 2, it will be recalled, refers to an importation of cannabis resin which, according to Llewellyn, was loaded on to his lorry at Fuengirola in Spain on 12th July 1993 in the presence of Bernard Rose, Anthony John Fry, and "another English bloke", after which Llewellyn drove back to Calais where his vehicle was loaded for shipment on 15th July 1993. It was not a spur of the moment decision by Llewellyn to carry the drugs, nor was it Llewellyn's first contact with Fry. Fry had appeared when on 31st May 1993 Llewellyn, by telephone, tried to contact Jones after Jones and Williams had, on 29th May 1993, sped off leaving Llewellyn and his passenger in the lorry in Spain, thus bringing to an end the main history of events in relation to Count 1. Rose had been introduced to Llewellyn by Fry on the following day, and Llewellyn had been told that although he could not be provided with drugs on this occasion, he would be contacted on his return to the United Kingdom. He was contacted by Fry as promised, and Fry told him to telephone Rose on his next journey to Spain. He would then be "loaded". Llewellyn did as he was instructed on 12th June 1993 but was told that a load was not available at present. Plainly between 12th June 1993 and 12th July 1993 the position changed, and it was the prosecution case that it changed because, with the assistance of Barham and others, money was moved from the United Kingdom to Spain for the purchase of drugs.

Barham's wife was the licensee of the Prince Alfred public house, Islington, North London, and Barham had a mobile telephone. At 11.53 am on 16th June 1993 Barham telephoned Neil Robertson, the brother of Rita Townsend. Later that day she went to Heathrow Airport where she met Frederick Vidgen. He handed her a parcel. Thereafter customs examination of her luggage disclosed that she was carrying a large amount of sterling currency in £50 and £10 notes. She flew to Malaga. Vidgen was driven away from the Airport by Robertson, who then telephoned Spain.

On the following day, 17th June 1993, at 12.15 pm Barham met Robertson and Paul Cassidy in the car park of the King's Arms, Isleworth. At 1.23 pm Robertson and Vidgen checked in at Gatwick for a flight to Malaga, and on this occasion Robertson was carrying £2,000 in cash.

Rita Townsend returned to London on 18th June, and over the next three days there were three telephone calls from Robertson's house to Spain. During that same period Barham was visited at home by William Brown, who was later to be caught unloading drugs from the lorry in the United Kingdom. Fry was also in contact by telephone with Llewellyn. Those telephone conversations were recorded, but for the moment we say nothing about what was said.

On 21st June 1993 Rita Townsend made two telephone calls to Spain, the number she dialled being the one later dialled by Llewellyn in order to make contact with Bernard Rose.

On 22nd June 1993, at 10.34 am and 4.31 pm Rita Townsend made two telephone calls to the Prince Alfred public house, and at 2.05 pm Barham met Fry and Atkins in a cafe at Paddington Station. Barham received a call on his mobile telephone, during which he described himself as "Ted". On that day also Llewellyn was telephoned by both Fry and Bernard Rose. That evening Neil Robertson's car was seen to stop outside the Prince Alfred public house and a man and a woman, who could have been Rita Townsend, went in.

Early next morning Rita Townsend and Miss Gore flew from Gatwick to Malaga. Again Rita Townsend had a lot of sterling notes. She also had a brown envelope addressed to "Neal". Neil Robertson did not spell his name that way, but it was so spelt in Barham's address book.

At 2.19 pm that day Michael Rush left the Prince Alfred public house with a white plastic carrier bag. At 4.13 pm Barham and his wife and another couple arrived at Heathrow Airport to catch a flight to Malaga. At 4.19 pm he met Rush who was carrying a large quantity of cash and who travelled on the same flight to Malaga, but was seated 12 rows away from Barham.

Again there was telephone contact between Llewellyn and Fry and on 24th June they met at a

motorway service station in South Wales.

On 29th June, Barham and his party returned to London. On the following day Fry met Llewellyn again and on 1st July Fry flew from Bristol to Malaga.

On 7th July 1993 Llewellyn left in his lorry for Spain, where he established contact with Rose and Fry by telephoning the same Spanish number as Rita Townsend had telephoned on 21st June, 3rd and 5th July, with the result that, as we have said, the drugs were loaded on to his vehicle on 12th July. On 14th July Fry flew to Heathrow (not back to Bristol). He was met by Sanders, and at 7.55 pm he, with Michael Atkins and a third man, entered the Prince Albert public house. About 20 minutes later they were seen to be in earnest conversation with Barham and others.

On 17th July the lorry was at Llandissilio, Dyfed, and Llewellyn had been in contact by phone with Fry. On the same day in London Barham again met Neil Robertson, who had returned from Spain on 6th July. On 18th July Llewellyn met Sanders and Brown at the Ivy Bush Hotel, Carmarthen, where listening devices had been installed, the object being to transfer the drugs to Llewellyn's van, in which they were to travel to London.

At 2.00 am on 19th July Fry and Hobbs arrived, and later that day Brown and Sanders were arrested. Barham was not arrested until 20th February 1994.

As the trial judge said:

"One has to look at all the pieces of evidence as they affect the particular defendant taking into account not only the significance or insignificance, strength or weakness of each piece of evidence individually, but also their overall effect in terms of asking the question 'what reasonable inferences can or should be drawn?'"

Mr Moses does not dispute that approach, but he submits that if properly applied it should have led the judge to conclude that there was no reasonable evidence or prima facie case against Barham of involvement of this illegal importation. The evidence, he submits, shows no more than an association between Barham and on the one hand of those who carried money to Spain, and on the other hand those who were involved in transporting the drugs. It does not even show that the money which went to Spain was used to buy the drugs.

In our judgment the evidence which we have outlined did, as the prosecution contend, and as the judge found, amount to reasonable evidence or a prima facie case of Barham's involvement in the relevant illegal importation. Precisely because the picture does have to be examined as a whole, it is dangerous to try to highlight any particular part of it, but on the evidence admissible against Barham:

(1) Fry was clearly a key figure so far as this consignment was concerned. At first he had some difficulty in providing it, the likely cause for which was unavailability of funds:

(2) Fry was not only an associate of Barham, but he was also associating with Barham quite closely during the relevant period- at the Paddington cafe on the 27th June and again on the 14th July when he went to the Prince Alfred public house almost immediately on his return from loading the drugs in Spain.

(3) There was also what appeared to be a close association between Barham and the Prince Alfred public house and those who carried substantial sums of money to Malaga. On 17th June Barham met Robertson in a public house car park shortly before Robertson flew out to Spain. On 22nd June Robertson's car was at the Prince Alfred public house, and on the next day Robertson's sister (who had been telephoning a Spanish number later used to contact those who supplied the drugs) flew out not only with money but also with the envelope

for "Neal". On the same day Barham travelled to Malaga on the same plane as Rush, who had come from the Prince Alfred public house, and who had a lot of money with him.

(4) Even when it came to unloading and disposal of the drugs in Wales, it was an associate of Barham, namely Brown, who was involved.

Mr Pitchford submits, and we accept, that it was open to the jury to infer that Barham's role was a vital one, which he was at pains to conceal, orchestrating the movement of large amounts of money to Spain for the purchase of drugs, and at the same time, through Fry, ensuring that Llewellyn with his lorry would be available when required to move the drugs from Spain to the United Kingdom.

The second ground of appeal advanced by Mr Moses relates to the second category of evidence upon which the prosecution relied in presenting its case against Barham, namely the references to him made by others in recorded telephone conversations to which he was not a party. There were conversations between Fry and Llewellyn, and also conversations recorded at the Ivy Bush Hotel on 19th July 1993. Mr Moses accepts that although in general what is said by two criminals about a third is not admissible evidence against the one who was not there, the evidence is admissible if all three are engaged in a conspiracy or in a joint enterprise, and what was said was said in furtherance of their conspiracy or joint enterprise. So evidence of what was said by way of instruction to take some further step necessary for the commission of the offence would be admissible, whereas simply imparting information as to what had already been done would not. To support this submission Mr Moses drew our attention to the old case of Blake & Tye (1844) 6 QB 126. Mr Moses also drew our attention to the judgment of Dixon C.J. In Tripodi v R (1961) 104 CLR 1 where he said at page 7:

"From the nature of the case it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible under this principle against his companions in the common enterprise. Usually the question of admissibility will relate to directions, instructions or arrangements or to utterances accompanying acts."

That passage was cited with approval by Glidewell L.J. When giving the judgment of this Court in R v Gray and others (1995) 2 Cr.App.R. 100, and in the present case the trial judge accepted that it represents the law. Indeed Mr Pitchford has not sought to persuade us otherwise. His submission is that the parts of the evidence upon which the prosecution relied, and to which Mr Moses objects, were more than narrative statements or accounts of events that had already taken place. They were capable of being regarded as words spoken in pursuit of, and for the purpose of advancing the common enterprise.

It was the prosecution case that for the drugs importation which was the subject-matter of count 2, Fry was the organiser on the ground - in Wales and in Spain - and Barham was the financier in overall command. Llewellyn was the vital driver, whose vehicle was to carry the goods. To advance the joint enterprise Barham and Fry needed to co-ordinate the movement of money to Spain, the purchase of the drugs, the availability of transport to bring the drugs from Spain, and finally, the movement of the drugs from Wales to London.

Mr Pitchford submits that the recorded conversations relied upon were all part of the co-ordination. It is, therefore, he submits, of no consequence whether at any particular point in a recorded conversation a speaker is referring to something that has already occurred, or making some comment, rather than uttering a command because those taking part in the conversations had to discuss recent events in order to arrive at an agreed course of action. As is pointed out in the current 8th edition of Cross and Tapper on Evidence at page 654 "in many cases out-of-court assertions and actions of conspirators [or joint offenders] may be admissible as circumstantial evidence of a conspiracy [or joint offence] quite independently of reliance upon any admissions, express or implied, and so arguably outside the operation of the hearsay rule". The words in brackets are ours, but the proposition is one which Mr Pitchford adopted, and in our judgment he was right to do so.

With that rather lengthy introduction as to the law we turn to look at the five pieces of recorded conversation relied upon by the Crown which, Mr Moses submits, the trial judge should have ruled inadmissible.

(i) on Saturday 19th June 1993, in a recorded telephone conversation between Fry and Llewellyn, the latter, who was being kept idle on "stand-by", was pressing for money and Fry explained that he was going to London on Monday to "draw off them". He also explained that he, Fry, would keep in constant touch with Bernard Rose, and Llewellyn could do the same

and "probably we can meet up on our way down" - in fact they did later meet in Madrid. Mr Moses submits that Llewellyn's money problems were not part of the offence charged in count 2, but these passages, as it seems to us are really part of the res gestae. They record what was happening in the early stages of the operation which constituted the offence. In our judgment that evidence is plainly admissible.

(ii) In fact Fry's meeting in London took place on the following Tuesday, and he then telephoned Llewellyn saying he was still in London and "I couldn't have a meeting till, I just had a meeting now 2 o'clock right." He was also able to advise Llewellyn that he had spoken to Rose. Apparently the drugs were not yet available in Spain, so Fry suggested that Llewellyn fill in with a legitimate trip. Llewellyn's reply indicated that there was very little work available, so Fry suggested he hold off and they meet next day. Here again, as it seems to us, we are looking not at a narrative of past events, but at the relevant offence in operation, and the evidence must therefore be admissible. It is the misfortune of both Barham and Fry that there is other evidence as to what they were both doing at 2.00 pm on Tuesday 22nd June 1993 because they were seen together in the cafe at Paddington.

(iii) On the following day, 23rd June, Llewellyn explained that he had turned down a job involving a trip to Germany and Fry explained the situation in relation to the proposed illegal importation. "The other fella's gone back down now to where Bernie is". It was the prosecution case that Barham was "the other fella", and, as we have already said, he flew from Heathrow to Malaga that day. Fry did not name him but he referred to him as "the one I was with yesterday". Fry and Barham had been seen together on the 22nd at Paddington. To Llewellyn, Fry said "he's organising things down there. So soon as its organised he'll be in touch." He also suggested a meeting at noon on the following day and Llewellyn agreed. Mr Moses submits this is part narrative, part future arrangements, but there is nothing which advances the course of the common enterprise. In our view this is the enterprise in operation with the field organiser reassuring the driver and bringing him up to date. That is why the evidence is admissible.

(iv) On 18th July 1993 the lorry with the drugs had reached Wales, and Brown in room 92 at the Ivy Bush Hotel, Carmarthen, spoke on the telephone to Sanders, who the prosecution say was his superior in London. He reported the presence of the drugs and continued

"... He's got to get the van taxed tomorrow so to have that .... It's the same old Alf Kamikaze thing here again, its Mickey Mouse, but however he's looking to get that taxed then he has to go and uplift the tiles (i.e. The drugs) and transfer them.... That's why I'm phoning you, you see, what you think's the best thing....."

There was other evidence indicating that "Alf" could be Barham and Mr Moses submits that the passage quoted is no more than a comment on Alf's habitual inefficiency. But that, as it seems to us, is not right. It is Brown telling Sanders the current position, with a comment to suggest that it might have been expected, and then Brown is seeking Sander's advice. It is as we have said in relation to other extracts, the enterprise in operation, and, as Mr Pitchford submitted, the comment was incidental.

(v) The final extract which we have to consider under ground 2 is from a conversation between Fry and Brown recorded on 19th July at the hotel. It concerned the proposed removal of the drugs to London by van and how check points might be avoided. Brown reported

what "Ted" (the appellant Barham) had arranged. His nephew was to go ahead on a motor cycle as a scout with a radio, Brown was to drive the van, and Fry offered to follow, but Brown rejected that so Fry said he would take the driver (Llewellyn) up "so he can get away today and he can go off with Ted". Mr Moses submits this was just an exchange of proposals and neither they nor the reference to Ted was an intrinsic part of the illegal activity. Mr Pitchford submits, and we accept, that here again it is possible to see the offence in operation in its final stages - and we can see Barham's part in it. Brown, as his agent, drives the van, preceded by Barham's nephew on his motor cycle. Meanwhile Llewellyn is taken by Fry to meet Barham. This is relevant contemporaneous evidence, not to be excluded. It is true that on each of the five occasions Barham was not present, so he was not in a position to challenge what was said, but in reality that was no handicap because the conversations were not about him they were and are contemporary evidence of the progress of the offence charged.

We turn now to Mr Moses' third ground of appeal, in which he is critical of the directions given by the trial judge in relation to those five pieces of tape- recorded evidence to which we have just referred. Mr Moses submits that even if the trial judge was entitled to find that the circumstantial evidence was sufficient to amount to reasonable evidence or a prima facie case against Barham, so as to render the recorded evidence admissible, the jury should have been told in terms not to act on the latter evidence alone, because although apparently compelling it was hearsay, and therefore subject to all the disadvantages of evidence of that kind, including in particular the restriction on the defendant's opportunity to probe the evidence by cross- examination because he was not present at the material time. Having given that warning Mr Moses submits that the judge should have gone on to identify for the jury the circumstantial evidence upon which the prosecution relied, so that they could give effect to the warning which they had been given. To support his contentions in relation to this ground of appeal Mr Moses invited our attention to cases decided in Canada, New Zealand and Australia as well as in this country. He accepted that we are unlikely to derive much assistance from the Canadian authorities, because the Canadian approach is extremely complex, and that approach, together with the two New Zealand cases of Humphries (1982) 1 NZLR 353 and Buckton (1985) 2 NZLR 257 was considered and approved by the High Court of Australia in Ahern v R (1988) ALR 162, so it is to that decision that we now turn. At page 168 in the judgment of the court approval is expressed of the test adopted in Tripodi, and the judgment continues:

"Where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was also a participant."

The words "participation" and "participant" need to be emphasised, such evidence being admissible to prove the conspiracy itself. We have, of course, already looked at the reasonable evidence threshold test in relation to Mr Moses' first ground of appeal. Still on page 168 the judgment of the court continues:

"The question remains whether the trial judge or the jury should ultimately determine the existence or otherwise of reasonable independent evidence of the participation of an alleged conspirator as a ground for the use against him of evidence of the acts and declarations of other conspirators which took place in his absence. Obviously the matter must be one for the determination of the trial judge in the first instance ..... But controversy exists over whether, even after the evidence has been admitted, the jury should be instructed that it is for them to determine whether there is reasonable independent evidence of participation and that if there is not, they ought not to use the evidence of the acts and declarations of the other conspirators for the purpose of deciding that issue."

The court considered how the problem had been addressed in other jurisdictions, including England, where it was suggested that little attention had been given to it. At page 171 the court concluded:

"The preferable view is that the trial judge alone should determine the sufficiency of the independent evidence. The question is initially one of the admissibility of evidence of acts and declarations occurring outside the presence of an individual accused and for that reason a question for the trial judge. If he determines that the evidence of the acts and declarations of others is admissible to prove the participation of the accused, it is anomalous that the members of the jury should, in effect, be required to determine the same question for themselves. To require them to do so necessitates a direction which is of unacceptable complexity."

The court then considered the order in which the evidence might be led and continued:

"It may be argued that there is a danger in not leaving the question of admissibility to the jury in that the jury may see the independent evidence of participation as unconvincing and yet act upon the acts and declarations of others outside the presence of the accused. Any such danger may, however, be avoided by an appropriate direction from the trial judge. It will be proper for him to tell the jury any shortcomings in the evidence of the acts and declarations of the others including, if it is the fact, the absence of any opportunity to cross-examine the actor or maker of the statement in question and the absence of corroborative evidence. Where it is appropriate, it will not be difficult to instruct a jury that it should not conclude that an accused is guilty merely upon the say so of another nor will that be an instruction which it is difficult to follow."

It is that last passage to which Mr Moses asks us particularly to have regard.

Mr Pitchford does not dispute the approach adopted by the High Court of Australia in Ahern, but he submits that the question of admissibility is always a question for the judge. If reasonable or prima facie evidence of participation leads a judge to admit hearsay evidence, and the prima facie evidence is later undermined, the judge should reverse his ruling and, if necessary, discharge the jury or invite a submission of no case to answer. But the simple fact that there is a challenge to the prima facie evidence will not lead to that result, and so long as the whole of the evidence remains before the jury it is entitled and indeed bound to have regard to it. The task of the jury must be to decide on the whole of the evidence whether the prosecution case is proved to the requisite criminal standard of proof. It will, of course, be appropriate to warn the jury about the dangers of hearsay evidence, the strength and nature of the warning being tailored to the facts of the case, but it will not help the jury to try to segregate the evidence into circumstantial and hearsay evidence of participation, nor, Mr Pitchford submits, when the jury has to consider all of the evidence is it necessary to warn the jury not to find participation on the basis of hearsay evidence alone. Mr Pitchford submitted that his approach was in line with the decision of this Court in Walters (1979) 69 Cr.App.R. 115 where Lord Widgery C.J. At page 121 expressly approved this direction to the jury by the trial judge:

"'Let me just explain to you these various points. First of all, what the conspirator said or did, in furtherance of the common object, or common agreement, is evidence against all the rest of the conspirators. That is to say, you can consider those acts and declarations, as I have said, things said. You can consider those against them all, either before you have decided that there is an overall conspiracy- and in order to decide that point- or after you have decided there is an overall conspiracy- if you do so find- and when considering whether any particular defendant is within that conspiracy; provided that you do consider both of those aspects and you do find there is a conspiracy in the end.'"

That passage was cited with apparent approval by Lord Lane C.J. In Donat (1985) 82 Cr.App.R. 173 at 180. Those authorities are helpful, but unlike Mr Pitchford we do not regard them as providing a complete answer to the case which Mr Moses has advanced.

We turn now to the directions actually given by the trial judge. The relevant passage begins at

page 27C of Volume I of the transcript of the summing up, and extends to page 33. The trial judge began by setting out the general rule that what is said by one defendant in the absence of another is not evidence against the defendant who is not there. He then indicated the exception which applies in cases of conspiracy or where two or more persons are alleged to have been acting in concert, that exception being

that: "...where two or more persons are engaged in a common purpose the acts and statements of one of them in pursuance of that common purpose showing the involvement of a defendant or defendants in the commission of the offence may be admissible in evidence against an absent party to the same enterprise." The judge then identified the pieces of evidence to which the prosecution contended that the exception applied (including those which we have considered) after which he gave this warning:

"Members of the jury, before such statements made by one party in the absence of another can be used as evidence against that other absent party, or can affect that other absent party certain conditions have to be satisfied. Firstly, you must be sure in the light of all the evidence (not solely the evidence of the statement itself but the other evidence in the case too) that at the time of the statement in question the common purpose, whether that that alleged in count 1 or alleged in count 2 -- that that common purpose did exist and also that the speaker and the absent party referred to shared that common purpose."

The judge went on to say that the words spoken must be uttered in furtherance of the common purpose "of what is being done now and what is going to be done", and if it is to be used against an absent party it must on all the evidence be clear who is being referred to. The judge then turned to the impact of the circumstantial evidence.

In our judgment that direction cannot be faulted in the way that Mr Moses contends. He concedes that when the judge gave his warning he came near to what he should have said, but in our judgment that concession does not go far enough. In this case once the trial judge had decided to admit the tape recorded conversations nothing happened to cause him to review that decision. Almost all of that admitted evidence is concerned with the operation of the joint offence rather than Barham's participation in it. It becomes compelling evidence of his participation only when what Fry said to Llewellyn about his 2 o'clock meeting in London is considered alongside the eye witness evidence of the investigating officer who was observing the men who met in the Paddington cafe. Similarly when Fry said to Llewellyn that the "other fella" who he had been with on the previous day had "gone back down to where Bernie is" that only became evidence of Barham's participation when considered alongside the evidence of others not only as to the meeting at Paddington, but also as to Barham's trip to Malaga. After the drugs reached Wales there are the references in the recorded conversations to "Alf" and "Ted" which, on the basis of other evidence, the jury was invited to find were references to Barham. So, in the circumstances, there was no danger here of the jury sweeping aside the circumstantial evidence which led the judge to admit the recordings, and using the recorded evidence as primary evidence of the participation of Barham in the joint offence alleged. If that danger had existed we accept that it would have been appropriate for the trial judge to give the sort of warning contended for by Mr Moses and to which the final passage which we have cited from the decision of the High Court of Australia in Ahern refers. We note that the High Court itself did not suggest that any particular form of warning should be given. What it advocated was "where it is appropriate" an instruction to the jury not to conclude that an accused is guilty only upon the say so of another. In our judgment the direction given here was appropriate, and the particular form of instruction contended for would not have been. We therefore reject Mr Moses' third ground of appeal.

The fourth ground of appeal advanced by Mr Moses relates to what happened after the jury had retired to consider their verdict on 13th September 1994. On that day verdicts were returned in relation to three co- accused. Jones was convicted, and Dennedy and Atkins were acquitted. On the following day two co-accused, Fry and Sanders, were convicted, and on 15th September the trial judge gave a majority direction. Tucker and Williams were then convicted. Before those last two verdicts were returned the trial judge had indicated his intention to give a direction along the lines suggested by this Court in the case of Watson (1988) QB 690. Mr Moses accepts that the judge was entitled to decide when he did that such a direction would be appropriate, but he submits that the judge could have changed his mind and indeed should have done so when two further verdicts were returned, because those verdicts made it clear that the jury were still doing what they had been charged to do. By giving the Watson direction the judge in the circumstances simply subjected the jury to unnecessary pressure, and he should not have done so. We disagree. In our judgment the judge was fully entitled to decide that, despite the additional verdicts, the direction might assist, and we reject Mr Moses' fourth ground of appeal.

Mr Moses' fifth ground of appeal we can deal with very briefly. As a result of proceedings on another indictment Fry was in due course alleged by the prosecution to have benefited from drug trafficking to the extent of £400,000, and complaint is made of the fact that for the purposes of this trial that information was not made available to those who represented Barham. The suggestion, as we understand it, is that had the information been available it might have helped to explain how the drugs to which count 2 refers were paid for. However, it was not until April 1995 (seven months after verdicts had been returned in this case) that the prosecution alleged that Fry had benefited in respect of the other matter to the extent of £400,000. Such an allegation made many months later does not even start to prove that Fry in fact had any substantial funds available in Spain or elsewhere in the period covered by count 2 of this indictment; still less does it show that the prosecution were aware of and should have disclosed that fact. In our view there is no substance in the fifth ground of appeal, and so the appeal of Barham is also dismissed.

Before parting with this appeal we must pay tribute to the trial judge. As Mr Merfyn Hughes said, his rulings were models of clarity, and so was his summing up.