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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Rigot & Anor, R v [2000] EWCA Crim 18 (18th February, 2000) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2000/18.html Cite as: [2000] EWCA Crim 18

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RIGOT and CAROLE SLAUGHTER, R v. [2000] EWCA Crim 18 (18th February, 2000)

Case No: CAO9902892Y4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROYDON CROWN COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 18 February 2000

The main burden of Mr Aina's submissions on the confession was directed to the issue of severance, which we deal with below. In his oral submissions, though not we think in his grounds of appeal, he took a point on the judge's decision to admit the confession, without holding a voire dire to establish, as he put it, its reliability. The judge rejected submissions (not renewed before us) that there had been an abuse of process in respect of the letter. He decided on 30^th March 1999 that, edited of extraneous and immaterial matter, the letter could be adduced as an exception to the hearsay rule under the principle in R. v. Myers [1998] AC 124, whereas, if severance was ordered, "Mrs Slaughter would be deprived of this evidence, clearly relevant to her defence". The letter was, he added, "not inadmissible under s.76 of the Police and Criminal Evidence Act, whatever the arguments under s.78 may be".
18. Mr Aina conceded during the course of his submissions before us that the judge was right to say that there was no question here of s.76 of the Police and Criminal Evidence Act applying. There is no suggestion of any "oppression". Nothing was "said or done" by anyone which was likely to render it unreliable. He submitted however that the House of Lords had in R v. Myers left open the potential relevance of s.78 to the admission of any confession by a co-defendant.
19. Myers establishes that a defendant has the right to put a statement relevant to the defendant's defence and made voluntarily by a co-defendant to a witness to whom it was made, although it incriminated the co-defendant as its maker and had not been used by the Crown. The approach of their Lordships to the question whether there was any residual discretion to exclude a co-defendant's confession in circumstances outside s.76 was not perhaps entirely identical. Lord Slynn, with whose speech Lords Steyn and Hutton agreed, referred to the rule excluding confessions by a third party (on the ground that if they were admitted it would be too easy for fabricated confessions to produce unjustified acquittals) and went on:
"Accepting Lord Bridge's view in Reg. v. Blastland [1986] AC 41 that statements by third persons are not admissible there is a long line of authority showing that a defendant must be allowed to cross-examine a co-defendant as to a previous inconsistent confession so long as the material is relevant to the defendant's own defence. In my opinion a defendant should also be allowed to put a co-defendant's confession to witnesses to whom the confession was made so long as the confession is relevant to the defendant's defence and so long as it appears that the confession was not obtained in a manner which would have made it inadmissible at the instance of the Crown under s.76(2) of the [Police and Criminal Evidence] Act of 1984. There may be doubt as to whether the co-defendant will be called (so that it may not be possible to put the confession to the co-defendant directly) and not to allow the defendant to introduce it by way of cross-examination of prosecution witnesses could lead to great confusion."
Lord Hope, with whose speech Lord Mustill agreed, agreed at p.146B-C that the judge did not err in admitting the evidence. He went on:

"Indeed it would perhaps be more accurate to say that he had no discretion to do otherwise, as this was relevant evidence on which the co-defendant wished to rely as part of his case, and there were no grounds for taking the view that it was evidence on which no reasonable jury could rely because it was worthless evidence. I would not wish to be taken as being of the view that a request by a co-defendant to be allowed to bring out evidence of a confession which had been obtained in breach of the Code of Practice should be acceded to in all circumstances. But this is a point on which we did not hear argument, and it is not necessary to reach a view upon it in order to reach a decision in this case."
20. The speech of Lord Hope indicates at p.138G that the statements in R v. Myers were not relied upon by the Crown because they had been obtained in breach of the Code of Practice issued under the Police and Criminal Evidence Act 1984. There can therefore be no general rule that inadmissibility at the suit of the Crown precludes a co-defendant from cross-examining as to and adducing such statements. There may still be some scope for arguments about admissibility of confessions at the instance of a co-defendant in special circumstances where an attempt by the Crown to adduce the statement is open to objection under s.78. But the general rule at least is clearly that a judge has no discretion to refuse to admit such a confession at the instance of a co-defendant.
21. Mr Aina submits nevertheless that the judge in the present case ought to have investigated further the possibility that the confession might be inadmissible at the instance of the Crown under s.78 and that special circumstances might in effect exist for refusing Mrs Slaughter permission to use it. The judge ought to have held a voire dire, and, if he had concluded that the confession would have been inadmissible at the instance of the Crown under s.78, then either he could have refused to allow Mrs Slaughter to rely on it, or, if he could not have done this, he should have ordered separate trials of the appellant and Mrs Slaughter.
22. We leave until later the issue of severance. We do not accept the submission that the judge should have held a voire dire, to assess whether in the light of s.78 the Crown could have relied upon the confession, before he decided to allow Mrs Slaughter to do so. Firstly, there is no support in R v. Myers for any such procedure. Secondly, even assuming that there might be exceptional circumstances in which it might become appropriate, there was, we think, nothing in the circumstances of this case which could call for such a procedure. S.78 involves a court assessing whether "having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse impact on the fairness of the proceedings that the court ought not to admit it". We do not have the transcripts of any submissions which counsel made to the judge on this aspect. But there is no material before us which suggests as a matter of fact any basis on which s.78 could have been applicable as against the Crown. The confession was volunteered. The defendant's only explanation in evidence for making what he said was an untrue confession was that he was desperate to find a way out of prison. That he was desperate is clear from the letter. But it offers no basis upon which the judge would conceivably have ruled that the admission of the confession would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. It was pre-eminently a letter about the truthfulness of which it was for the jury to make up its mind, having heard all the evidence in the case. It follows that, even if a voire dire should (contrary to our view) have been held, we are confident that it would have made no difference whatever to the admission of the confession.
23. We therefore reject Mr Aina's submission that the confession letter should not have been admitted, or not have been admitted without first holding a voire dire.
24. The prior relationship with US Customs
Mr Aina next submits that the judge erred in allowing further details of the appellant's relationship with US Customs to be elicited during cross-examination of the appellant on behalf of Mrs Slaughter. The details were that the appellant had reported to Mr Gorezney that he was working for members of the Coastal Cartel in Puerto Ria since the early 1990s, that he had identified persons, vessels and vehicles used to transport cocaine and houses rented by the cartel to secure narcotics and currency, that he had reported that he had delivered cocaine to individuals for onward transportation to New York and New Jersey, and had stored cocaine and cash in Palman Delma and that he had provided information leading to the recovery of $1m worth of cocaine concealed in stereo equipment for export to JFK airport in 1994.
25. The judge refused to allow counsel for Mrs Slaughter to elicit this information from Mr Gorezney in chief. But, after Mr Gorezney had produced the appellant's letter, Mr Aina for the appellant asked Mr Gorezney to confirm in cross-examination that the appellant provided assistance to US Customs between April 1994 and November 1995 in ongoing investigations regarding the activities of drug rings in Puerto Rico and mainland USA and that at the time of his arrest US Customs were signing the appellant up as an official informant. Thereafter, when the appellant came to give evidence, the judge allowed him to be cross-examined on behalf of Mrs Slaughter to elicit the further details mentioned. So far as objection is taken to this course on the basis that the appellant had not "given evidence against" Mrs Slaughter, we have already rejected that submission. So far as objection is taken on the ground of relevance, Mr Aina conceded before us that the further details had, as he put it, some, albeit "marginal" relevance. We consider that, having sought to elicit a favourable picture from Mr Gorezney as to the nature of the appellant's drug-related activities, the appellant put himself at risk of having a fuller, and more representative, account of those activities adduced. Furthermore, the activities positively supported Mrs Slaughter's case that, whereas she had no contacts in the Caribbean or South American areas, the appellant had contacts and experience in both.
26. We therefore reject this ground of appeal also.
27. Previous trips

The ground of appeal relied upon here is that the judge erred in allowing the Crown in its opening address to rely on the fact that the appellant had booked and paid in cash for prior trips to St Lucia for other persons and to adduce evidence of that fact. It is said that the prior trips could only be relevant if the Crown could prove that they were drug-related, and that there was no evidence of this. The judge rejected the appellant's submissions on these points at trial on the basis that the prior bookings went with the booking in which Mrs Slaughter was involved to establish a pattern. In our judgment, this ruling was correct. The jury was entitled to conclude that, although a person may on any particular occasion make and pay in cash for a booking for another, particularly his partner, the prior bookings for a variety of persons, including in its inception the booking to which Mrs Slaughter succeeded, were evidence of an unusual pattern of behaviour which was capable of throwing light on the likely purpose of the booking used by Mrs Slaughter. We therefore reject this ground of appeal.
28. Severance
We now come to the area which featured most prominently throughout Mr Aina's submissions. It involves to some extent re-visiting some of the points which we have already considered.
29. Mr Aina made submissions during the trial that there should be separate trials of the charges brought against the appellant and against Mrs Slaughter. His initial submissions were based on a skeleton dated 21^st March 1999 which referred to the prejudice which the appellant would suffer if Mrs Slaughter or the Crown was able to introduce (a) his prior conviction, (b) previous association with cocaine in respects not in fact introduced at the trial and (c) the previous trips. The judge rejected this submission by a ruling on 22^nd March 1999, in which he took account of the fact that counsel for Mrs Slaughter would want to introduce all matters he legitimately could against the appellant. At least one further express application was made at the end of March 1999, on the basis that the introduction of the appellant's letter into the trial required severance. This was rejected on 30^th March 1999. The judge rejected submissions (not renewed before us) that there had been an abuse of process in respect of the letter. He said that, edited of extraneous and immaterial matter, the letter could be adduced as an exception to the hearsay rule under the principle in R. v. Myers [1998] AC 124, whereas, if severance was ordered, "Mrs Slaughter would be deprived of this evidence, clearly relevant to her defence". The letter was, he added, "not inadmissible under s.76 of the Police and Criminal Evidence Act, whatever the arguments under s.78 may be". Conducting a balancing exercise he considered that the interests of justice required joint trial.
30. Mr Aina submits that the judge was wrong in these rulings and wrong not to order severance, if not at the outset, then as the trial progressed and its course became apparent. Mr Aina accepted at the outset of his submissions that normally co-accused persons should be tried together and that the fact that a "cut-throat" defence is being run, so that a defendant's bad character is placed before the jury, does not normally lead to severance. But he submitted that the facts here were quite exceptional. In particular, although the Crown's case was itself weak, the conduct of Mrs Slaughter's defence led to considerable prejudicial material going before the jury. He referred in particular to the letter produced by Mr Gorezney, the appellant's prior conviction and the further information about his drug-related activities adduced during Mr Gorezney's cross-examination.
31. In relation to the letter, Mr Aina submits that the judge treated the matter as effectively concluded by R. v. Myers [1998] AC 124, and failed to follow the approach of this court in the earlier case of R v. O'Boyle (1991) 92 Cr. App. R. 202, where the court, in the exercise of its discretion under s.5(3) of the Indictments Act 1915 to do so where desirable, ordered a separate trial.
32. In O'Boyle the Crown sought to adduce, but the judge under s.78 of the Police and Criminal Evidence Act refused to permit the adducing of confessions made by one defendant to the US DEA in circumstances where there had been no caution or information as to the defendant's rights and the defendant had been clearly reluctant to make the confession and was induced to do so by promises that everything said would be in confidence and would not be used in evidence and that the DEA might be able to help the defendant with the English police. A co-defendant indicated however that he would cross-examine and if necessary take steps to prove the confession as part of his defence. The court held that a separate trial should at that stage have been ordered. The statement was "obtained in circumstances which cast grave doubt on its voluntary nature and reliability", and the issue moreover was whether there should have been severance, because "Once it was before the jury, it would be a practical impossibility for them to ignore it". The disadvantage to the co-defendant in not being able to attack the defendant by use of s.1 Proviso (f)(iii) "was in the circumstances minimal" (p.206 foot). The court said of the case that
"this was a wholly exceptional, if not unique, case and the judge gave insufficient weight to the fact that separate trials would do little, if any, harm to co-defendant or prosecution, whilst a joint trial would almost guarantee that the appellant would be convicted whatever direction was given to the jury as to how they should approach the difficulty".
33. Mr Aina relies on that approach. As to the judge's conclusion in this case that Mrs Slaughter would be prejudiced through being "deprived of the evidence of [the confession], clearly relevant to her defence", Mr Aina submits that the judge erred because, in any separate trial, Mrs Slaughter could have adduced the confession under ss.24 and 25 of the Criminal Justice Act 1988. This does not appear to have been a point made at the trial, but whether that is so or not is not presently material.
34. S.24(1) makes potentially admissible statements in documents created or received as the holder of a paid office containing information supplied by the maker of the statement who had or may reasonably be supposed to have had personal knowledge of the matters dealt with. The Crown was ready to accept that these conditions were satisfied by the letter, by the receipt by Mr Gorezney (presumably in his capacity as a US DEA or US Customs officer) from the appellant of the letter. However, under s.24(4), if the letter was "prepared .... for the purposes (a) of pending or contemplated criminal proceedings", then it is not admissible, since it is also accepted that the further requirements of s.24(4) were not satisfied. Was this letter prepared for such purposes? In our judgment, it was not. S.24(4) was designed to require certain formalities to attach to statements designed for use in or for such proceedings. The letter was the exact opposite. It was written to try to bring the proceedings against the appellant to a stop, and the last thing that its writer contemplated was that it would be used in or for their purposes.
35. Accordingly, we approach the matter on the basis that s.24(1) could in terms apply. S.24(1) is a mechanism for adducing in hearsay documentary form information which could have been adduced in the witness box by the person referred to in the sub-section as having personal knowledge of such information. The exclusion of confessions by a third party has been explained not merely by the practical risk of fabricated statements, but also by the consideration that "it is for the legislature, not the judiciary, to create new exceptions to the hearsay rule": see R v. Blastland [1986] AC 41. It is nonetheless difficult to think that s.24(1) was conceived or passed with any conception that it would impact on the general rule, mentioned by Lord Slynn in the passage cited above, that a confession by a third person is not admissible.
36. Assuming however that it does so impact, does this undermine the judge's decision declining to sever? In our judgment, it does not. A confession in writing adduced in circumstances where the appellant would no doubt already have made it clear that he categorically denied the truth of what was said (and might even have denied making it at all) is self-evidently a far less potent and helpful weapon than a confession adduced in the course of a joint trial in which there was every likelihood (as proved to be the case) that the confession could be put to the appellant, that his direct oral evidence could be obtained upon it and that the jury could see him give and assess his explanation for it. The very rationale of the exclusion at common law of a confession by a third party is the risk of fabrication. That risk is in no way diminished by satisfaction of the conditions for application of s.24.The rationale for the admission of a co-defendant's confession is the presence of both defendants as parties to the proceedings: see e.g. the citation in R v. Myers at p.135H from the Lord Justice-Clerk's opinion in Perrie v. H.M. Advocate 1991 J.C. 27.
37. Mr Aina argued that the judge ought to have held a voire dire in order to determine whether the confession woud have been admissible at the instance of the Crown, because only then could he properly assess whether there was prejudice to the appellant in having a joint trial at which Mrs Slaughter would be able to adduce it. For reaons we have already given, we do not consider that there was any basis for suggesting that the confession would not have been admissible at the instance of the Crown, or would have been excluded under s.78. This point therefore fails.
38. We consider as a result that the judge was right not to order severance in the light of the admission into the trial of the confession.
39. Mr Aina next submitted that, if (as we have held) s.1 Proviso (f)(iii) allowed cross-examination of the appellant on this conviction, this, at least in conjunction with the confession letter, the past activities adduced in cross-examination of the appellant and the appellant's past trips, led to a danger that the appellant would be convicted for his past activities, rather than because of evidence bearing on the particular importation. The combination of these factors, if nothing else, necessitated, he said, severance.

40. We do not accept this submission. The confession itself would, as indicated, have been admissible at the instance of the Crown. The conviction was admitted because the appellant was tried with Mrs Slaughter and gave evidence against her within s.1 Proviso (f)(iii) of the 1898 Act. Prejudice arising to a defendant from the admission of his character in this way is a factor to be taken into account in deciding whether to sever. But the prejudice here was in our judgment insufficient to outweigh either the general presumption in favour of a joint trial on joint charges like the present, or the specific prejudice which would have flowed on severance from the loss of opportunity on Mrs Slaughter's part to have the confession statement adduced in proceedings to which the appellant was party and in which he was likely to give evidence (as he did). Cross-examination of the appellant about his past drug-connected activities as an informant took place in response to cross-examination on the appellant's behalf of Mr Gorezney to elicit a partial account of these activities; such activities were also relevant to the issue what (if any) relevant contacts the appellant had in the Caribbean or South American area. The past trips were material evidence, admissible and admitted at the instance of the Crown, to demonstrate a relevant pattern which threw doubt on the appellant's account.
41. The result is that we also reject Mr Aina's submission that severance should have been ordered because of the cumulative effect of these matters. In so far as they were prejudicial, they were properly admissible as such.
42. The Summing Up
Finally, Mr Aina raises a number of points on the judge's summing up. We take first a point raised on the character direction given. The judge directed the jury in terms to which no criticism can be directed that the appellant's prior conviction went only to credibility and not propensity. He then pointed out that the only reason they had heard of the appellant's conviction was that he had given evidence against Mrs Slaughter, and repeated that his prior conviction went only to his credibility, that is whether they believed him or not. Mr Aina submitted that the judge should further have directed the jury that the only issue of credibility to which the conviction went was whether they accepted Mrs Slaughter's account as to her role, in other words that they should wholly ignore the conviction and any adverse impact they might think it to have on credibility when considering the Crown's case against the appellant. He did not support this proposition with any authority, and we know of none. We cannot accept it. Credibility cannot be parcelled up, in the manner suggested.
43. The proposition also seems to rest on an assumption that the Crown could not itself, under s.1 Proviso (f)(iii) and subject to the judge's discretion, have cross-examined with reference to the conviction, once the appellant gave evidence against Mrs Slaughter. That assumption does not presently appear to us well-founded: see Archbold paragraph 8.212 and the authorities there cited, including Murdoch v. Taylor [1965] AC 574, 593B-C per Lord Donovan, with whose speech Lord Reid (so far as material), Lord Evershed and Lord Pearce agreed. That passage in Lord Donovan's speech was expressly referred by Lord Slynn in R v. Myers at p.134E-F. This point therefore fails.
44. In respect of the confession letter, Mr Aina further submitted that the judge should have directed the jury that they must not use the letter in any way as evidence in support of the Crown case. He founded this submission on passages in Lord Slynn's speech in R v. Myers, at pp.135D-F and 137E-G, which in turn cite Reg. v. Rowson [1986] 1 QB 174 (see per Goff L.J. as he was at p.182A-B), Lui Mei Lin v. The Queen [1989] AC 288 and Reg. v. O'Boyle (1990) 92 Cr. App. R. 202 (see per Lord Lane at p. 206 foot).
45. All these cases cited in R v. Myers were concerned with involuntary or other statements which would not have been admissible at the instance of the Crown. In some of the cases, even the making of the statement was also in issue. The position and issue in Reg. v. O'Boyle have been summarised earlier in this judgment. In R v. Rowson the judge had ruled the statement inadmissible for breach of the Judges' Rules, and Goff L.J. said simply that the judge should briefly explain the situatioin to the jury and "discourage" them from placing weight on it in considering the Crown case against the defendant who made the statement. In Lui Mei Lin the judge had ruled that the statement had not been made voluntarily but as a result of inducements, and was inadmissible at the instance of the Crown. Lord Roskill's references to R. v. Rowson and to the need to warn the jury not to use the statement in any way as evidence to support the Crown case were in that context. We point out that Lord Roskill in giving the advice of the Privy Council was also careful to say with reference to what had been said in R v. Rowson that:
"Their Lordships doubt if it is possible to state general principles which should be uniformly applied in every case where the question arises."
46. In R v. Myers too, as it appears from the speech of Lord Hope at p.138G, the statements were not sought to be relied upon by the Crown because they had been obtained in breach of the Code of Practice issued under the Police and Criminal Evidence Act 1984.
47. R v. Myers clearly cannot stand for any general rule that, whenever a co-defendant introduces into a trial by cross-examination or otherwise material which the Crown has not sought to adduce, the judge must tell the jury to ignore any evidence given in that regard when considering the Crown case. The basic rule as stated in Murdoch v. Taylor at p.583 per Lord Morris is that
"If an accused person becomes a witness his sworn testimony, if admissible, becomes a part of the evidence in the case. What he says in cross-examination is just as much a part of that evidence as what he says in examination in chief."
48. In every trial involving co-defendants, there may be much evidence that only comes to light at the instance of one or other defendant, without the judge having to give any special warning in that regard. Evidence may also be adduced at the instance of one defendant which would be of no relevance as part of the Crown case. The need for any warning exists most clearly in situations like those in the cases just considered. That is cases where there is a difference between the position of the Crown and the co-defendant, which makes matter available for use by the latter which would have been material to the Crown case, but which would, if the Crown had sought to rely upon it, have been excluded, particularly on grounds relating to its involuntariness or under s.78. For reasons which we have already indicated, the present is not such a case. Without seeking to define the circumstances in which a warning may or may not be appropriate, there was in our judgment no need for the judge to give any special warning to the jury in the present case.
49. Mr Aina's last point on the summing up was a somewhat similar point, raised in the different context of the evidence adduced about the appellant's prior activities. It is said that here again the judge should have told the jury to ignore the evidence when considering the Crown's case. Again, it seems to us that the evidence would have been admissible had the Crown adduced it. It was, as we have stated already, adduced by Mrs Slaughter by cross-examination in response to the appellant's cross-examination of Mr Gorezney, which sought positively to put before the jury a favourable picture of the appellant's activities. It also went to the question whether the appellant had contacts in the relevant geographical area. His case was that he had none, and that he could not therefore have made arrangements for Mrs Slaughter, or arrangements for the loading into the suitcases of the drugs, as - on her evidence, which the Crown's case in this respect no doubt endorsed - he had done. Again therefore we do not consider that any special warning was required.
50. Conclusion
Standing back from the individual points, Mr Aina asked us to conclude that cumulatively their impact was such as to make the appellant's trial unfair and as he put it, at the least to raise a sufficient "lurking doubt" to make the conviction unsafe. Having considered the points individually and collectively and having also considered the whole of the summing up and the other material before us, we consider that the appellant's trial was fair, and we are left in no doubt about the safety of the jury's verdict. This appeal therefore fails.