Neutral Citation Number: [2014] EWCA Crim 2928
Case No: 201301355/B4
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 
 
Date: Tuesday, 22nd July 2014
 
B e f o r e:
PRESIDENT OF THE QUEEN'S BENCH DIVSISION 
(SIR BRIAN LEVESON) 

MR JUSTICE GLOBE 

SIR RODERICK EVANS
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R E G I N A

v 

JAMES LEE
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Mr A Trollope QC & Mr A Frymann appeared on behalf of the Applicant 
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J U D G M E N T  (Approved) 
1.	PRESIDENT OF THE QUEEN'S BENCH DIVISION:  As long ago as 13th March 2007, in the Crown Court at Inner London before His Honour Judge Issard‑Davies and a jury, this applicant was convicted by a majority of conspiracy to supply Class A drugs namely cocaine, contrary section 1(1) of the Criminal Law Act 1977.  He was subsequently sentenced to 22 years' imprisonment less time spent on remand.  He now seeks, out of time, to appeal against conviction, having been refused leave so to do by the single judge.
2.	At this stage, the applicant is represented by Mr Andrew Trollope QC and Mr Andrew Frymann, in place of Mr Bernard Richmond QC and Miss Hay who represented him at trial.
3.	One of the points taken by Mr Trollope concerns the admissibility of intercept evidence.  That consists of telephone calls between the applicant and others.  The judge, summing‑up the case to the subject jury said this: 
"I have to tell you members of the jury, you probably know as a result of English law had those telephone calls been intercepted in England the law would have prevented their evidential use in court.  That law is the subject of some controversy at the moment but they were not.  They were intercepted in Holland and so you have them in evidence and they are none the worse for that."
In providing that direction the judge was clearly affected by the decisions of R v Aujla [1998] 2 Cr App R 16, affirmed in R v P [2002] 1 AC 146.  
4.	Mr Trollope in his skeleton submissions argues that the evidence of the intercepted telephone conversations should not have been admitted.  He relies in that regard on the Regulation of Investigatory Powers Act 2000 which he contends makes it clear.
5.	In that regard the CPS responding to the notice of appeal said in relation to evidence:  
"It consists of recorded telephone conversations that were taped by the Dutch police in Holland.  The evidence consists of conversations between James Lee and his Dutch contact about the importation of a large consignment of cocaine.  The recordings were fully available to the defence who accepted they were conversations between James Lee and Dutchman. The defence attempted to argue the conversations were not about cocaine." 
6.	Mr Trollope seeks to argue that the summary provided by the judge was clearly mistaken and that the intercepts, whether or not recorded in Holland, must have involved an invasion of the telecommunication system in this country.  If that is right, they necessarily required, on his submission, appropriate authority pursuant to the Regulatory Investigatory Powers Act which as a consequence would render them inadmissible.
7.	There is not the slightest evidence put before this court to justify that conclusion.  Mr Trollope has referred to statements which he has seen from the prosecution case, which have not been provided to the court or, as I understand it, included within the material that was served upon the Crown as part of the fundamental allegation being made in this regard.  Furthermore, no attempt has been made to contact leading counsel who conducted the defence to ascertain whether the understanding of the fact is accurate and the circumstances in which this evidence came to be admitted without argument.  This court simply cannot proceed on the premise of Mr Trollope's instructions.
8.	In Doherty & McGregor [1997] 2 Cr App R 218, it was made clear that it was perfectly proper for counsel newly instructed to speak to former counsel as a matter of courtesy before grounds were lodged but counsel were provided with a discretion in the matter.  More recently the position has been taken further in a series of decisions of this court, and in particular in R v Davis and Thabangu [2013] EWCA Crim 2424, R v Achogbuo [2014] EWCA Crim 567 and R v McCook [2014] EWCA Crim 734.  Thus these decisions make it clear that fresh lawyers recently appointed must take steps to ensure that they are fully appraised of all that occurred while the case was in the hands of previous lawyers in so far as that is relevant to the new proceedings.  
9.	Where an allegation of actual implicit incompetence is made, enquiries should be made of those prior lawyers, said to have acted improperly, and it is equally important that other objective independent evidence should be sought to substantiate the allegations made.  These principles apply not only where there is an allegation of previous lawyers have erred or failed in some way but also in any case where it is essential to ensure the facts are correct: see McCook in paragraph 11.
10.	In our judgment, this case is nowhere near ready to be determined on the basis of the allegation which Mr Trollope seeks to advance or the ground of appeal upon which he now seeks leave.  In our judgment, it is critical that further enquiries are made as to the circumstances in which this evidence came to be placed before the court without contention and, if it is alleged to be the case, how it was that the judge was allowed to err in his summing‑up in the way in which we have described.  In the same way, the details of this further allegation should be provided to the Crown Prosecution Service in order so they can provide far further chapter and verse as to the basis for its contention in the respondent's notice.  
11.	Given the proposition that we advanced in argument, Mr Trollope sought to adjourn the application for leave to appeal.  We have granted that application.  We will adjourn the hearing of this application to a further occasion, after the various steps to which we have referred have been taken.  We invite the Crown to be represented at the renewed application.  We can take the case no further at present.  We reserve the case to a constitution that consists of me and Globe J. Sir Roderick being a part time judge may not be able to return on the next occasion.