Case No: 2009/02482/C4 & 2009/02481/C4
Neutral Citation Number: [2011] EWCA Crim 345
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BOURNEMOUTH
HIS HONOUR JUDGE HARVEY CLARK QC

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 24/02/2011
Before :

LORD JUSTICE THOMAS
MR JUSTICE WILKIE
and
MRS JUSTICE MACUR DBE
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Between :

	Regina	Respondent	
	- and -		
	Alan Brian Austin
Ali Tavakolinia	Appellants	

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Miss R Fairbairn for the Appellant (Austin)
Mr S S Stevens for the Appellant (Tavakolinia)
Mr D Tait for the Respondent

Hearing date: 10 February 2011
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Judgment
Lord Justice Thomas: 
1.	In this appeal, the appellants challenge the ruling of the judge in the second trial of a conspiracy to import drugs allowing evidence to be admitted that a person acquitted by the direction of the judge in the first trial was a party to the conspiracy.
The conspiracy alleged
2.	The appellant Austin and the appellant Tavakolinia and others were charged in 2007 with a conspiracy to import cocaine from Spain into the United Kingdom.  The case was committed to the Crown Court on 6 December 2007 and the first trial began before His Honour Judge Beashel on 21 April 2008.  The conspirators were said to have arranged for a Vauxhall Corsa car to be driven to Madrid on eight separate occasions in 2006, taking the ferry route to Spain.  Cash was taken out in the car, exchanged for cocaine imported from South America in Madrid, the cocaine was put into the diesel tank (as this type of car was specially suitable for that purpose) and driven back to the United Kingdom.  The last of the eight trips was undertaken in December 2006.  On 11 December 2006 a woman called Brindle was stopped at Portsmouth on her return from Spain.  9.3 kg of cocaine at 45%/49% purity with a value of £800,000 were found in the diesel tank.  The fingerprints of another conspirator Hajebrahim were found on the packaging of the drugs.
3.	The roles of the conspirators were said by the Crown to be as follows:
i)	Hajebrahim: He was at the centre; he was an Iranian national resident in Brazil and a man of means.  His role was to import the cocaine from South America to Madrid.  He had gone to Madrid to facilitate each transaction.  He was extradited from Brazil towards the end of the first trial.  He was tried in the second trial, pleading guilty about three weeks into that trial.
ii)	Austin:  He was a friend of Hajebrahim and a man of means with property in Bournemouth and Brazil.  He played a major role in the conspiracy, organising the journeys to and from Madrid.  He made four trips himself to Madrid in the Vauxhall Corsa.  He lived in Honiton, Devon.
iii)	Everett.  He was a resident of Bournemouth in the used car business.  He was an associate of Austin and the point of contact for Austin to pass money through Abraham to Hajebrahim.
iv)	Abraham.  He also lived in Bournemouth; he was a nephew of Hajebrahim and the contact between Hajebrahim and others in the conspiracy.
v)	Tavakolinia.  He was a friend of Abraham, also living in Bournemouth.  He was also an Iranian.  He was a middleman and facilitator, heavily involved with the co-conspirators, particularly in April and August 2006 and later that year.  He played a key role in assisting Hajebrahim after the arrest of Brindle.
vi)	Fox.  He travelled to Madrid with Austin.
vii)	Brindle.  Her role has already been described.  She had made one other trip.
The first trial 
4.	It is only necessary to refer to one matter in relation to the prosecution case in the first trial which took place before His Honour Judge Beashel.  A lengthy schedule extending in the first trial to over 70 pages was put before the jury.  A large part of the schedule was agreed as it contained a record of text messages and other items, such as bank transfers and the timing of telephone calls, which were documented and could easily be checked by the parties.  However, part was not agreed.
The submission by Everett of no case to answer
5.	At the conclusion of the Crown’s case, a number of submissions were made of no case to answer.  All the tapes of the first trial have been lost by the Crown Court at Bournemouth.  Judge Beashel retired shortly after the conclusion of the first trial; his notebooks and records on his computer were destroyed.  In the result, counsel had to reconstruct from their notebooks the argument and rulings made by the judge which are important to this appeal.  This has been unsatisfactory; Her Majesty’s Court Service should re-examine the policies for safeguarding tapes and destroying the judge’s notebooks and other records immediately on a judge’s retirement.  
6.	Counsel for Everett submitted there was no case to answer on 12 June 2008.  It is clear that the submission was made on the basis both of a lack of evidence against him and that the case against him was a moving target and his role had never been specified.
7.	The Crown’s response was to say that there was substantial evidence against him and the question for the jury was solely whether he was a conspirator.  The Crown relied in particular on texts between Austin and Everett which were voluminous in number.  In the light of what happened later, it is important to note that one of these included a text at 23:42 on 25 April 2006 where Austin told Everett to give Abraham £25,000.  This instruction seemed to be linked to a payment made by Everett to Hajebrahim recorded in the schedule as an agreed payment recorded in bank records.  The Crown also relied on face to face meetings between Everett and Austin at a café in Honiton known as the Boston Tea Party Café and at a public house called the Baker’s Arms.  They met at the locations as they were midway between Honiton, Devon where Austin lived and Bournemouth where Everett lived.  Those meetings had been subject to surveillance.  The Crown also relied on other telephone calls between Everett and Austin and in particular telephone calls made by Austin to a public kiosk where Everett would be present by pre-arrangement.  The numbers of mobile telephones in the conspiracy included one ending in 158 attributed to Everett.
8.	The judge ruled that there was a case to answer.  According to counsel’s notes, he observed that the case was not as strong as it was when it had been opened.  The surveillance evidence was weak.  This was apparently because little had been overhead at the Boston Tea Party Café and at the Baker’s Arms one of the undercover police officers who had been listening to the conversation had put her notes into texts on a mobile telephone.  After she had put what she had recorded in the texts into a statement, the texts had then been deleted by the police officer on the instructions of a more senior officer.  This action of the police was unknown to the Crown until the trial.  The judge held that the evidence in the texts between Austin and Everett and the telephone calls, particularly those in May 2006, gave rise to a case to answer.  
The error in the schedule and the discharge of Everett
9.	The case then continued with evidence being given by the defendants.  During the course of that evidence on 23 June 2008 an error was found in the agreed part of the 70 page schedule.  As we have set out at paragraph 7, the schedule showed a payment of £25,000 to Hajebrahim shortly after the telephone conversation on 25 April 2006.  When the schedule had been produced, the computer programme used had allocated the date of that transaction wrongly in the schedule; it had in fact been some years before and not immediately after the telephone call.  No one had noticed the mistake; it was simply a technical error made in the agreed part of the schedule.
10.	Nonetheless counsel for Everett applied to the judge asking him to reconsider the submissions made at the close of the prosecution case.  Unfortunately we only have a note of those submissions for the reasons we have given; however the gravamen of the submissions seems to have been that the Crown kept on moving the goalposts. 
11.	Counsel for the Crown responded by submitting that it could show that sums over £25,000 had in fact been paid after the text; a short document setting out the details was produced; the payment was not to Hajebrahim, but to Abraham; it was the Crown’s case that the payment to Abraham was for Hajebrahim, as this was the way many payments had been made, The response of counsel for Everett was that the Crown was changing its case.
12.	We have two notes of the judge’s ruling made on 23 June 2008 – an agreed note and one produced by Miss Fairbairn, counsel for Austin, during the hearing before us.  They provided a broadly similar summary.  It is clear that the judge took the view that, although the Crown had been fair and open during the trial and there had been an error in relation to the payment of £25,000, it was a serious error.  He considered that the case had been substantially altered.  He accepted that a document produced by the Crown that day showed substantial moneys were paid into the account of Abraham, similar in amount to the sums paid into Hajebrahim’s account as shown in the schedule; that it was the Crown’s case that the money had been paid to Abraham for Hajebrahim’s account.  He took the view that the Crown could not change its case; Everett was entitled to know the case against him.  Everett was entitled to a fair trial.  He then went on to say he was satisfied that the case had altered and Everett had no case to answer.  A verdict of not guilty was formally entered.
The consequences in relation the evidence against Austin and Tavakolina in that trial
13.	A request was immediately made by counsel on behalf of Austin that the Crown should spell out the evidence on which it would no longer rely in view of the judge’s ruling that Everett should be discharged.  It appears, although we were not provided with the document, that some proposals were put on behalf of Austin.  The Crown responded in a document dated 24 June 2008  where the Crown made clear that in the continuing trial:
i)	Telephone calls between Everett and Austin would no longer form part of the Crown’s case.
ii)	The surveillance at the Boston Tea Party Café and at the Baker’s Arms would no longer be relied on.
iii)	The use of the telephone number ending in 158 would no longer form part of the case.
iv)	The Crown would rely on a number of texts between 25 April 2006 and 6 August 2006 between Everett and Austin.
v)	Apart from what was set out in the texts, the financial transactions between Everett and Austin would no longer form part of the case.
The discharge of the jury in the first trial
14.	The trial then continued; Austin and Abraham gave evidence.  When Tavakolinia was giving evidence on 15 July 2008 and being cross-examined by the Crown he said that he had been told by Everett that the 158 telephone belonged to Everett.  The jury had hitherto heard some evidence that the owner of the 158 telephone had been party to the conspiracy.
15.	Submissions were made that afternoon and on the following day as to the effect of that answer during cross-examination.  A number of submission were made that the jury should be discharged.  During the course of the submissions the judge told counsel that he had not made up his mind as to what should happen, bearing in mind the trial had hitherto lasted 56 days.  He asked the Crown if a re-trial would be a whole lot shorter.  The Crown replied by referring to the case of R v Mitchell [1964] Crim. L.R. 297 and that that might mean legal argument.  
16.	Unfortunately, as we do not have a transcript, it is not possible to tell what in detail was said, but we accept the submission of counsel for the Crown that there must have been reference to the principles in Mitchell.  The decision is one of 12 cases listed in the 2008 edition of Archbold under the name Mitchell and it is referred to in paragraph 3-60a of the 2008 edition of Archbold for the following proposition:
“Where a person has been acquitted at an earlier trial on an appeal, that acquittal binds the Crown against the individual only and the Crown may at a subsequent trial of co-conspirators assert that the acquitted person was a party to the agreement.”
The paragraph also referred to a ruling of Field J in Gibbins to which we refer at paragraph  32 below.
17.	Prior to the final submissions being made by counsel on behalf of Austin and others and before the judge made his ruling, all the parties must therefore have been aware of the significance of the Crown’s reliance on Mitchell; that at any subsequent re-trial the Crown would assert that it was entitled to allege that Everett was party to the conspiracy and rely on the evidence, including that to which we have referred at paragraph 13 above on which the Crown could not rely if the trial before Judge Beashel had continued.  No submission was made to the judge that the case could continue in those circumstances.  The judge then gave a ruling setting out his reasons why he accepted the submissions that the jury had to be discharged and a re-trial ordered.
The second trial 
18.	In the re-trial which, as Judge Beashel had retired, was heard by His Honour Judge Harvey Clark QC, the indictment alleged that those before the court who now included Hajebrahim, Austin and Tavakolinia, had conspired with Everett.  In support of that allegation the Crown wished to adduce evidence of:
i)	Surveillance at the Baker’s Arms and the Boston Tea Party café.
ii)	Evidence in relation to telephone calls between Everett and Austin, where Everett used the telephone kiosk.
iii)	Telephone calls relating to the 158 number used by Everett.
iv)	The text messages to which we have earlier referred and which were included in the new version of the schedule.
The judge ruled that on the basis of the decision in Mitchell and s.5 of the Criminal Law Act 1977, the Crown were entitled to rely on that evidence.  
19.	The re-trial commenced on 15 January 2009; the judge began his summing up on 1 April 2009.  As we have set out Hajebrahim pleaded guilty during the course of the trial.  Austin, Abraham, Tavakolinia and Brindle were convicted; the jury could not agree on Fox.  The Crown did not seek a further trial.  
20.	On 1 May 2009 the judge passed sentence in the case.  Hajebrahim was sentenced to 22 years imprisonment, Austin was also sentenced to 22 years imprisonment, Abraham to 12 years, Tavakolinia to 11 years and Brindle to five years, all less time on remand.  Confiscation proceedings were begun against them for very significant sums of money and are in progress.
The grant of leave by the Full Court
21.	Applications were made for leave to appeal against conviction by Austin and Tavakolinia on various grounds.  Applications were also made by them and other defendants for permission to appeal against sentence.  These were refused.  A renewed application by Austin and Tavakolinia was made.  The Full Court granted leave on the ground in which it was contended the judge in the second trial was wrong in his ruling allowing the evidence in relation to Everett to be adduced.
The appeal against conviction
22.	A few days prior to the hearing of the appeal, Austin dispensed with the services of the more senior of the two counsel who had represented him at trial.  The more junior counsel, Miss Fairbairn, represented him on the hearing.  As she had not had an opportunity of taking detailed instructions and as Austin was keen to ensure that certain matters about which he had a recollection or in respect of which he thought submissions should be made were put before the court, we allowed time during the course of the day on several occasions for Miss Fairbairn to speak with Mr Austin and obtain his instructions.  We are extremely grateful to her for the clarity and concise way in which she put the submissions Counsel for Tavakolinia, who had not represented him at trial, essentially followed the submissions made by Miss Fairbairn.  
23.	It was the argument of Miss Fairbairn that the decision in Mitchell did not permit a person who had been acquitted on the direction of a judge either to be named as a conspirator in the subsequent indictment or for it to be alleged in any way that he was a conspirator.  There were three principal bases of that submission.  First, in the circumstances in which we have set out, it would have been unfair to allow the Crown to allege Everett to be a conspirator in the second trial.  Secondly, the Crown should not be permitted to impugn the judge directed acquittal of Everett; the position was different to that in Mitchell as Judge Beashel had found there was no case to answer.  Third, it was a breach of Everett’s rights under the ECHR to allege in the indictment in the second trial that he was a co-conspirator, as he had been acquitted.  
The general principle
24.	In Mitchell the prosecution led evidence in a second trial about the role of a person who had previously been convicted in other proceedings of the same conspiracy to dope racehorses, but his conviction had been quashed by this court.  This court held that a conspirator who had been acquitted could not be tried again, but that did not necessarily prevent evidence being given about the part he played on the trial of other conspirators.  Otherwise the shield given to an acquitted man would become the shelter of other persons not concerned with his trial.  Although the case is briefly reported in the Criminal Law Review, we have been able to consider the transcript of the judgment recorded as R v Dyer, Lowry & Field; we shall continue to refer to the case as Mitchell as this is the way it is reported and referred to in the text books.  The issue was one of many in the appeal and the court’s judgment on the issue is set out in less than a single page, dismissing what the court described as an “ingenious argument” and relying on elementary principles in so doing.  
25.	In the comment on the report, Professor Sir John Smith QC pointed to the fact that this was a case where it was the Court of Appeal who had quashed the conviction of one of the co-conspirators (S) on the basis that he had not had a fair trial.
“It would obviously be grossly unsatisfactory if such a decision were to be conclusive, or even prima facie evidence as against third parties that he did not take part in the conspiracy.
Even if it had been found in the earlier trial, however, that S. was not guilty, it would not be right to regard that fact as settled for the purpose of the present trial.  A second jury may be satisfied beyond reasonable doubt by evidence that the first jury found unconvincing; evidence may be admissible in the second case which was not admissible in the first, fresh evidence may have come to light, and so on.”
26.	The general principle so clearly spelt out by Professor Sir John Smith is plainly correct.  The acquittal in a previous trial, whether by reason of a verdict of the jury or on the direction of the judge, is a bar to re-trying that defendant, save in the narrow circumstances permitted by Part 10 of the Criminal Justice Act 2003.  However that acquittal cannot in a subsequent trial of other conspirators be a general bar to the Crown alleging that person was a party to the conspiracy.  There can be many reasons why a defendant is acquitted and why the evidence in the second trial may be different.  However, the question in the subsequent trial where such an issue arises is whether it is unfair to the other conspirators or improper for the Crown to be able to assert that an acquitted person was a party to a conspiracy.  As a matter of principle there can be no general bar for the reason so clearly expressed by Professor Sir John Smith. 
The benefit gained in the first trial
27.	As we understand Miss Fairbairn’s submissions, she did not contest that principle.  However, she submitted that it was unfair in all the circumstances.  Her first submission was that Austin had, in the course of the first trial, obtained the advantage of being able to continue to defend his case without the evidence that Everett was a co-conspirator.  Prior to the decision of the judge to discharge the jury and order a re-trial, it was clear that counsel for Austin knew of the Crown’s stance in relation to Mitchell.  However, this did not matter.  Given what had happened in the trial, it was impossible for Austin’s counsel  to have contended that the first trial continue in the light of the events to which we have referred.
28.	We cannot accept that first submission.  After a trial of some 56 days we were somewhat concerned to see that there had been a general willingness amongst the parties to abandon it when, in answer to a question made by the Crown in cross-examination, a matter had been put before the jury which should not have been.  In a trial of that length, even taking into account the problems that had occurred, we do not see why the judge would not have acceded to a submission that the trial should have continued and the judge would simply have told the jury to ignore the answer to the question.  It seems to us that that was a submission that could have been made, but was not.  As that submission was not made and as Austin and his legal team as well as Tavakolinia and his legal team were on notice that the Crown would in reliance on Mitchell seek to adduce evidence at a re-trial in relation to Everett’s participation in the conspiracy, we cannot see that any unfairness arises.
The judge directed acquittal
29.	However, assuming that our view on that is not correct, we turn to the second submission that Miss Fairbairn made.  She submitted that the judge had found in fact that there was not sufficient evidence in the first trial against Everett and therefore it was improper for the Crown to assert that Everett was a conspirator in the circumstances where a judge had found that there was no evidence.
30.	Nor can we accept this second submission.  Looking at the evidence in the case as a whole, the submissions made and the judge’s ruling on 23 June 2008, we cannot conclude that the judge directed an acquittal on the basis there was no evidence against Everett.  It seems to us that, as the Crown was prepared to prove that significant sums of money had been paid following the text on 25 April 2006 and thereby to correct the error that had occurred in the schedule without anyone’s fault, there was plain evidence that supported Everett’s participation in the conspiracy, but the judge took the view that it was not fair in the circumstances.  This was not, in our view, a case where there was no evidence against Everett; there was plainly significant and substantial evidence against him.
Fairness in the second trial and Everett’s rights under the ECHR
31.	But even if we were to assume that that view we have taken of the case was wrong and Judge Beashel had concluded that there was insufficient evidence against Everett, we consider that, in the circumstances of this case, there was nothing unfair in proceeding in the way that Judge Harvey Clark QC did.  It was for him to assess whether there was material which it was proper to put before the jury for the purpose of proving the conspiracy against Austin and others that Everett was also a party to the conspiracy.  He was entitled to asses the evidence and decide that there was sufficient evidence for this case to be advanced; there is no basis for this court to interfere with that decision as there was, in our view, ample evidence to show that Everett was a party to the conspiracy.
32.	The position may well have been different, for example, if at the first trial the Crown had accepted that there was no evidence against Everett and nothing new had emerged.  However, that was not this case.  
33.	As to the rights of Everett under the ECHR, Miss Fairbairn contended that there was a breach of his Article 6(2) rights; she relied on the ruling of Field J at the Crown Court at Southwark on 21 July 2004; this is referred to in Archbold as we have mentioned.  We would make two observations.  First, we cannot agree with the observation of Field J at paragraph 25 that Mitchell was authority only for the proposition that the prosecution could give in evidence the acts of the acquitted person and must do so without alleging he was party to the conspiracy.  It is clear from the decision in Mitchell, the statement of principle by Professor Sir John Smith and from general principles that Field J’s observations cannot be correct; the single sentence in the judgment of the court given by Finnemore J in Mitchell relied on by Field J, in our view, referred to the fact that the person acquitted in that case could not be indicted again as he had been acquitted; the court said nothing that contradicts the clear statement of principle set out by Professor Sir John Smith in his comment on the case. We agree with the view of the editors of Archbold in this respect (see 2011 edition at paragraph 33-66).  Secondly, as to the human rights of the acquitted person, this case is quite different to the decision in Gibbins.  In that case the Crown had invited the court to acquit those that the Crown subsequently alleged were parties to the conspiracy.  The circumstances are quite different to the present case where the Crown had throughout striven to maintain that Everett was guilty.  Furthermore, it seems to us this court should not be concerned with Everett’s human rights under Article 6(2) in the circumstances of this case.  In our view any rights Everett may have cannot be invoked by Mr Austin and Mr Tavakolinia to prevent them being tried for criminal activity involving Everett as there is no abuse of process or unfairness in the circumstances we have described.  Everett was not a party to the second trial and the Crown were not seeking to question the fact he had been acquitted in the first trial. 
34.	We therefore conclude, on this third submission of Miss Fairbairn, that Judge Harvey Clark QC was correct in holding that the Crown could advance the case that Everett was a conspirator and rely on the evidence to which we have referred.
The safety of the conviction
35.	In considering the safety of the conviction, we have considered the other evidence in the case.  There was, in our judgement, quite apart from the evidence in relation to Everett and his participation in the conspiracy, evidence of Mr Austin’s participation in this criminal conspiracy on which the jury were safely entitled to convict him.  It is, in our view, a matter of striking significance that a man of Mr Austin’s physical size and not inconsiderable financial means made four trips to Madrid in a Vauxhall Corsa.  It is difficult to see why he would go to Madrid in such a car in that way unless it was for a purpose connected with the conspiracy.  Furthermore his close associations with Mr Hajebrahim whose fingerprints were on the package of drugs and who had pleaded guilty to the conspiracy were significant factors.  We consider that Mr Austin and his co-conspirators were fortunate that the judge ruled that the fact of Mr Hajebrahim’s plea was kept from the jury and that they were told not to speculate about why he was no longer there.  But accepting that ruling, and looking at the evidence in relation to Mr Hajebrahim being in Madrid at the time that Mr Austin visited and the other evidence in the case, we are satisfied that even without the evidence in relation to Everett, this was an entirely safe conviction.
36.	For those reasons, therefore, despite the way in which the argument has been so clearly articulated by Miss Fairbairn, we dismiss this single ground of appeal on which leave was given.
Appeal against sentence
37.	The Full Court referred the renewed applications for leave to appeal against sentence to us.
38.	The judge placed Hajebrahim at the centre of the conspiracy.  His renewed application for permission to appeal against his sentence was refused by this court on 26 May 2010 [2010] EWCA Crim 1359.
39.	The judge took the view that Austin’s involvement in the conspiracy was marginally less than that of Hajebrahim.  He made an adjustment to reflect the guilty plea of Hajebrahim in imposing the sentence of 22 years.
40.	Miss Fairbairn accepted that a long sentence was inevitable, but contended that the sentence imposed was too long for this conspiracy and Austin’s role in it.  He had served the state in the armed forces and in the fire service.  We cannot accept these submissions.  In the light of the authorities, the sentence was amply merited.  This was a cynical and well organised conspiracy carried out by wealthy men for gain.  A sentence of 22 years imprisonment cannot be faulted; we refuse leave to appeal.  
41.	The judge described Tavakolinia’s role in the conspiracy as less clear cut.  He referred to the fact the prosecution had described his role as a go-between, facilitator or middleman and there was significant involvement with his co-conspirators from August 2005 onwards, in particular in April 2006 and August 2006.  He played a key role in assisting Hajebrahim after the arrest of Brindle.  The judge placed his role somewhat lower than that of Abraham but as a go-between significantly more than that of a mere courier.
42.	Mr Stevens contended that the judge had not correctly expressed his role; it was little more than Brindle’s and significantly less than Abraham’s; his sentence should have been much shorter.  In our judgement, the judge was amply justified, having heard all the evidence in the case, in reaching his conclusion as to the role of Tavakolinia.  In the circumstances, therefore, we see no arguable ground on which he could persuade the court that the sentence was manifestly excessive or wrong in principle.  We therefore refuse leave to appeal against sentence.