Practice and Procedure

R v PAUL LOWE & 8 ORS (2003)

PUBLISHED October 30, 2003

Whilst there were circumstances where parts of a defence statement, served under s.5(6) Criminal Procedure and Investigations Act 1996, would be put before a jury there was no basis to do so in the present case and the judge correctly directed the jury that inferences could be drawn from the defendant's failure to comment in interview.Appeals by three of the defendants against convictions for conspiracy to supply Class A controlled drugs imposed at Liverpool Crown Court in December 2000, and appeals against sentences by eight of the defendants, an application for leave to appeal conviction, by another defendant, was dismissed at an earlier judgment and appeals against conviction by two defendants were abandoned. One of the defendants pleaded guilty to possession of Class A and Class B controlled drugs with intent to supply. The defendants were sentenced in February and March 2001, one to 24 years', one to 21 years', four to 16 years' and two to 11 years' imprisonment. It was the prosecution's case that between June 1998 and February 2000, the defendants conspired together and with others to supply heroin and ecstasy. The conspiracy involved repeated importations of large quantities of drugs into the UK from Europe, the drugs then being distributed throughout the UK. The defendants were caught as a result of a large scale surveillance operation. The defendants appealed convictions on a variety of separate grounds one of which was that the judge had erred in refusing to allow before the jury a defence statement of one of the defendants served under s.5(6) Criminal Procedure and Investigations Act 1996. Where a judge was going to give an adverse inference direction under s.34 Criminal Justice and Public Order Act 1994 it had to be in the context of any defence statement otherwise a defendant would be placed in an impossible position. A jury was entitled to know all the circumstances before deciding whether to draw inferences and by refusing to admit the statement the jury were mislead as to why the defendant failed to comment in interview. The defendants appealed sentences on the grounds they were manifestly excessive.HELD: (1) There were cases where it may have been appropriate for a jury to know the date on which a defence statement was served, or to see parts of a defence statement in cross-examination when variation from it was alleged, or in re-examination to rebut a suggestion of recent invention. However, in the present case, the judge was right to conclude the statement was a previous consistent statement. There was no proper basis on which the extremely lengthy statement, served four and a half months after the defendant was originally questioned, should have gone before the jury. (2) There was no difference, in principle, between the defence statement and a defendant's proof. It was prepared after all the prosecution documentation was served and dealt in detail with much of the evidence, giving the defendant's response to the allegations made against him. It was pointed out in R v Roble (1997) (Unreported,CA,21/1/97), which was cited in R v Beckles (1998) EWCA Crim 1494, that the purpose of s.34 was to encourage speedy disclosure of a genuine defence and to permit adverse inferences to be drawn where a defence was fabricated later. (3) In interview the defendant did not give the same explanations as advanced at trial. As the judge had correctly directed the jury they were capable of drawing adverse inferences. (4) All the appeals against sentences were dismissed save for one defendant who was sentenced to 16 years' imprisonment for possession with intent to supply. In isolation it might have been difficult to criticise that sentence. However, it was too long in the context of the other defendants, given the defendant's level of involvement. The 16 years would be quashed and a sentence of 13 years would be substituted.Decision accordingly.

[2003] EWCA Crim 3182