Practice and Procedure


PUBLISHED December 16, 2003

Whilst the judge's direction to the jury regarding the defendant's failure to mention a co-defendant in interview could have been expressed more clearly, any shortcomings were insufficient to render the conviction unsafe.The appellant ('W') appealed against conviction for possession of cannabis resin with intent to supply and, in the alternative, against his sentence of four years' imprisonment. W had been observed picking up two men ('L' and 'O'), in his vehicle. W, L and O had driven to an address where O alighted from W's vehicle and returned five minutes later carrying two plastic bags, which he placed in the back of W's vehicle before W and L drove away. W and L were subsequently stopped by the police who discovered two plastic bags containing 15 kilograms of cannabis resin. W and L were arrested. L was found to have a piece of paper in his possession which seemed to make reference to controlled drugs together with sums of money. The plastic bags carried the fingerprints of L and O. Neither W nor L responded to questions put to them in interview. O was arrested several months later and also refused to answer questions. Prior to the trial, permission was sought to withhold certain material from the defence on public interest immunity grounds. The judge refused an application that independent counsel should be instructed by the court to represent the interests of the defence, applying R v C [2003] EWCA Crim 2847. At trial, W and O had each run a "cut throat" defence whereby they each alleged that they had met for the purpose of buying and selling theatre tickets and that it had been the other's idea to visit the address where the bags were collected from. W stated that he had been too shocked to answer questions in interview and that although he had not mentioned O by name in his defence statement, it was obvious to whom he was referring. L had not given evidence. O received a sentence of 30 months' imprisonment for supplying the cannabis and L received a sentence of 18 months' imprisonment for the same offence as W. W contended that: (i) the judge should have acceded to the application to appoint independent counsel to look to the appellant's interest during the public interest immunity hearing; (ii) the judge had misdirected the jury in suggesting that a finding of guilt against any one of the three defendants might be evidence of the guilt of the others; (iii) the judge had misdirected the jury with regard to W's failure to mention in interview that he had been set up by O; and (iv)(a) the sentence imposed was disparate when compared to that of L who had been convicted of the same offence; (b) on authority, the sentence of four years' imprisonment was too long even following trialHELD: (1) This was not one of the exceptional cases referred to in R v C (supra) and the judge's refusal of the application for independent counsel to be appointed was appropriate. (2) The judge had not suggested that O's guilt could provide any kind of support for the case against W. He had given a clear direction to consider the case against each defendant and each count separately and his observations could not be criticised as they were simply statements of the obvious. (3) The direction given to the jury on W's failure to mention O in interview could have been expressed more clearly; however, any shortcomings were insufficient to render the conviction unsafe. (4)(i) The lesser sentence imposed on L was fully justified; the judge was entitled to take the view that of the three, W was the senior partner; (ii) The sentence of four years' imprisonment for such a quantity of a class B drug was longer than was necessary and would be substituted for one of three years' imprisonment.Appeal allowed in part.

[2003] EWCA Crim 3820