Kray, R. v [1998] EWCA Crim 3211 (10 November 1998)

Neutral Citation Number: [1998] EWCA Crim 3211 Case No: 9704975 W3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 10th November 1998 B e f o r e : LORD JUSTICE PILL MR JUSTICE TURNER and THE JUDGE ADVOCATE GENERAL (His Honour Judge Rant QC) (acting as a judge of the CACD) ____________________ R E G I N A - v - CHARLES JAMES KRAY ____________________ Computer Aided Transcript of the Stenograph Notes of Smith Bernal Reporting Limited 180 Fleet Street, London EC4A 2HD Tel No: 0171 421 4040 Fax No: 0171 831 8838 (Official Shorthand Writers to the Court) ____________________ MR J GOLDBERG QC (9.11.98) & MR E VICKERS (10.11.98) appeared on behalf of the Applicant MR J KELSEY-FRY (9.11.98) appeared on behalf of the Crown ____________________ HTML VERSION OF JUDGMENT (AS APPROVED BY THE COURT) ____________________ Crown Copyright © LORD JUSTICE PILL : On 19th June 1997 Charles James Kray was convicted of two offences, offering to supply a Class A drug, cocaine, and supplying a Class A drug, cocaine. On 23rd June he was sentenced to 12 years' imprisonment on the first count and eight years' imprisonment concurrent on the second count. He seeks leave to appeal against his convictions. Two other defendants pleaded guilty on rearraignment on 15th April 1997. They were sentenced by his Honour Judge Carroll, who also conducted the trial of Kray. For offences of offering to supply a Class A drug, cocaine, and supplying a Class A drug, cocaine, Field was sentenced to nine years and six years' imprisonment respectively, the sentences to run concurrently. Gould pleaded guilty to three counts of supplying a Class A drug, cocaine, and was sentenced to a total of five years' imprisonment. The applicant Kray had been the target of an undercover police operation by police officers named "Jack", "Brian" and "Ken". In outline, the position was that in the course of several social meetings with them drugs had been mentioned by Kray, and Kray had indicated that he was able to supply large quantities of cocaine. He had introduced the officers to his co-accused who had eventually supplied the cocaine, and it was the prosecution case that Kray had been involved in the actual supply. The defence case was that Kray, whose name was well-known because of the activities of his brothers, traded on his name and was actually a law abiding elderly man of limited means who associated with well to do men. In the expectation of receiving drinks and loans and a high standard of living, he pretended to be able to obtain drugs when in fact he could not and did not. Jack gave evidence that he posed as a wealthy businessman with a criminal background. He first met Kray on 9th May 1996 when he attended the birthday party of Kray's friend Patsy Manning at the Wake Green Lodge hotel in Birmingham. At some of these meetings Jack and the other undercover officers wore or used taping devices. On other occasions they did not, and on some occasions when they were intended to be used the prosecution claimed that they had not operated so that the officers giving evidence relied upon a note that they had made subsequently. Jack asked Kray if he knew people in "The Dam" and said he had been visiting there regularly on business, but had been left a bit dry. Kray said that he had people who were sat on a ton and that he could put Jack's name on it if Jack wanted. They agreed to speak the next day. Jack approached Kray and said, "Last night when you said you had a ton laid down, is that your firm?" Kray replied "Yes", and, when Jack said he would be interested, they exchanged telephone numbers. Jack telephoned Kray on 16th May, suggesting a meeting and Kray agreed, saying, "We'll discuss everything when we get up". On the evening of 23rd May, by arrangement, when Kray arrived at the Selsdon Park Hotel Jack and Ken were waiting for him. In response to Jack's enquiry Kray said, "It's going to be a lot and it's going to be regular". There was a discussion about cannabis resin and cocaine. That night there was a social event - they went to a nightclub - and conversation was mostly in relation to Kray's brothers and to his son Gary who had recently died of cancer. On 29th May Jack phoned Kray's friend Patsy Manning about the charity night that Kray was organising at the Mermaid Theatre in London. Jack and Ken attended the charity night, and made a note of the conversations the following morning. Jack said that Kray had beckoned him over to a corridor and introduced him to the co-accused Field and Gould. Kray asked for Jack's help in sorting out a problem which he, Kray, had, and Jack offered any help he could give. After the show Field approached Jack alone. He said that he had heard that Jack was into "Charlie" and "puff" and asked what Jack was paying for a kilogram of Charlie. There was a discussion about figures, and Field said that he had 15 kilograms at 92 per cent purity and that Jack could check it if he was interested. Field and Jack exchanged mobile telephone numbers. Field said he would like to come up to Newcastle to sort out business. Before leaving, Jack asked Kray if Field was okay, and Kray replied that he was "100 per cent" very capable even by his, that is Kray's, standards. Kray invited Jack to his birthday party which was to be on 11th July. There was a discussion on 18th June about Field and Kray visiting Jack in Newcastle and Kray said, "I will have a chat to you when I see you. There are other things happening now as well you know. It ain't here just at the moment but it's happening". On 26th June Jack met Kray and Field at Newcastle Airport. During the journey to the hotel Field constantly looked to the rear for any vehicles that might be following, and there had been a conversation about police surveillance and tracking devices. At the hotel Jack introduced Kray and Field to Brian and Ken. That evening was spent watching television. The following morning there was further discussion between Jack and Field about police surveillance and phone taps. They were joined by Kray and Ken and all went to Jack's room where the window was closed and the sound of the television was turned up. The room had been bugged by the police, and subsequently recordings showed Field making offers to supply and Kray joining in the conversation. In the car on the journey back to the airport evidence was given that both Kray and Field reiterated their intention to supply five kilograms of cocaine on a regular basis, and that was the basis for Count 1 against Kray. There were telephone conversations during the following days during which problems were discussed. They discussed Kray's birthday party, and Kray said he was desperate for cash as his money was all tied up in the venture and he asked to borrow £500. Jack rang him back to confirm that he would lend him the money and Kray asked for it to be sent to his address in his girlfriend's name. The birthday party took place at the Wake Green Hotel in Birmingham on 11th July. Jack and Brian gave Kray an expensive cigarette lighter. In a later conversation with Kray they said they were still waiting. When they were making their farewells on the following morning Kray whispered to Jack that he would be in touch and that they were all going to be very rich. On the telephone on 20th July Kray said to Jack, "We are on the verge but not there". Arrangements were made for a meeting at the Selsdon Park Hotel and rooms were booked. Jack and Brian arrived at the hotel. They found Field and Gould, and Field told them that they were just waiting for the cocaine to arrive. Kray arrived shortly afterwards and said he was busy and not staying, but had popped in to check that everything was all right. He had stayed for 15 minutes. When they were all having dinner two men, Steve and Warren, arrived, one of whom was, in the opinion of those present, intoxicated by drugs or alcohol. Field was very cross about that and it emerged that the drugs could not be released to Warren because of the state he was in. Field told the undercover officers that the handover could not happen that night. A further meeting was arranged. Between meetings there was a conversation between Jack and Kray in which Kray made a reference to someone who might, by description, appear to be Warren. Jack again telephoned Kray, who said that he, Kray, was busy that night but that Field had the stuff and would be over to see him. However, no drugs were transferred on that occasion and Jack stalled the situation. He spoke to Kray, saying that he had heard there was a problem with credit, and Kray said that he had spoken to Gould and that Gould was saying there had been a problem with getting the drugs on credit. A further meeting was arranged for 31st July. Jack and Brian arrived at the Swallow Hotel and saw Gould and Field with a Jiffy bag. Jack asked to test the cocaine and Ken came in and took the bag with Gould. He sent a message that the cocaine was satisfactory. The money was passed over and there was talk about further deliveries. Very shortly afterwards Field and Gould were arrested. When cross-examined Jack agreed that it had been an expensive and elaborate operation. It had gone on for several months with Kray as its target. He denied that Kray was targeted because of his name. He denied that he had lured a vulnerable and poor old man, and he denied that he had played on Kray's vulnerability arising from Kray's son's death. He agreed that he had given Kray £500, an expensive lighter and had bought champagne, a flight to Newcastle and expensive hotel stays for him. He denied that he had entrapped Kray. He said that Kray had made the first offer to supply before Field and Gould had come into it. It had not been "bull" as far as he was concerned. The word "bull" was used at the trial to identify what Kray said was mere boasting without any substance or reality. He was challenged as to what had been said at many of the meetings. He denied he had made up the noted conversations when the tape recordings were not available. He was asked about a sexual relationship between Brian and Michelle Hamdouchi, who had been on occasions at the meetings. He denied that he had breached the instructions given to him as an investigating officer. He denied he had exceeded them and acted as an agent provocateur. Ken gave evidence broadly similar to that of Jack as to the occasions when he had been present. Both he and Ken denied that they had been drunk on occasions and thereby appeared to present an easy target for a sting by Kray. Brian, when cross-examined, denied that he had portrayed himself as the muscle man of the group. He agreed he had not told his superior officers about his relationship with Hamdouchi. He denied that his relationship with her had been sexual to the extent which was put to him. Detective Inspector Allen gave evidence that authorisation had been obtained for this operation at the highest level. Kray was arrested shortly after Field and Gould, and made no reply at interview. Kray gave evidence confirming that his only son Gary had died of cancer in March of 1996 and that he had been a very vulnerable man during the following months. He would be 71 on his next birthday. People had been kind to him knowing that he had little money. Friends including Patsy Manning had invited him to free breaks at the Wake Green Hotel in Birmingham. He had gone up to Patsy Manning's birthday party on 9th May and had been introduced to George Deano and Lisa. Deano had given him £50 to buy drinks with. There was no dispute about that payment. All three of them were spending very freely. Kray had no money and thought he could get some money out of George, Deano and Jack. It was in that context that Kray had said that he could get tons of puff. He was merely playing Jack along to try to borrow money from him. Kray gave evidence that if Jack had asked for gold bars he would have said he could get them. He was not being serious and Jack knew that he was not being serious. He was saying what he did with a view to borrowing money. He was never serious about supplying drugs. He introduced Jack to Field at the Mermaid Theatre. He asserted that the conversation there was just bull. He had never done business with Field. He had only met Gould a couple of weeks before the party at the Mermaid. He did know Steve and Warren, but did not know that they were into drugs. At the Newcastle hotel Jack had been treating everyone in the bar to drinks and had been really drunk and loud. Kray agreed that he and Field had offered to supply cocaine but it was only a pretence. Neither of them had any to supply and they had done it just to enable them to borrow money. He had not whispered at the hotel in Birmingham that they were all going to be rich. He had not known that Field and Gould were actually going to supply the cocaine. He knew nothing about the Swallow Hotel meetings of 26th and 31st July. Field and Gould were nothing to do with him, and if they had told him they were going to supply cocaine he would have told them not to. He had no part in the supply of drugs on 31st July. He was not, and never had been, a drug dealer. When cross-examined he said that he despised drugs and would not touch drug dealers with a bargepole. He denied that he had introduced Field to Jack for the purpose of drugs. Drugs had not been discussed in his presence at the Mermaid Threatre. He did not know that Field knew Steve and Warren. He had no idea that Steve and Warren would turn up at the Selsdon Park Hotel. He had only gone there that night for a drink. Field was going to tell Jack that there was no question of a drugs transaction and that it had all been bull. He reiterated that he had only intended to get a loan. He needed money badly then to pay his mortgage. When he left the Selsdon Park Hotel he realised that Field had not told Jack there were no drugs, but he expected Field to tell him after he had left. Kray called a number of witnesses. Patsy Manning gave evidence that he had known Kray for many years. Kray was a lovable gentleman. Manning had never known him to be violent or into drugs. He said he himself was always short of money but his friends were very generous. He had a friend known as Indian Joe Summers, who also knew Kray. When Kray's son had died he, Patsy, did not have enough money to attend the funeral and Indian Joe had offered him his chauffeur driven Jaguar to get to London. Summers did not employ his regular chauffeur that day but a man named George. Patsy introduced George to Kray, and George was very friendly. They exchanged telephone numbers. They were interested in the stories that Manning had to tell. They bought him a stereo system for his birthday and paid for a champagne party. They were spending plenty of money. Kray commented on this spending and they agreed that Jack, George and Deano must be villains. Manning said that he heard no mention of drugs from Kray or them. Michelle Hamdouchi gave evidence that she had become friendly with Brian and he went home with her on one occasion. She described a sexual relationship between herself and Brian. Staff at the Swallow Hotel gave evidence that Brian and Jack had been drinking until 5.00am and had said they were bodyguards for rich Arabs. A number of character witnesses were called who gave evidence of Kray being a charming old gentleman who traded on his brothers' name to gain access to high society drinks and meals. He had never turned to crime and was very involved in charitable works. He hated drugs. In recent years he had always been very short of money. Before the jury heard evidence, there was a voir dire. It lasted for ten days. The object was to exclude much of the police evidence and all the essential police evidence. It was submitted that Kray had been entrapped and under section 78 of the Police and Criminal Evidence Act it would not be fair to admit the evidence. At the voir dire the judge heard evidence from the three undercover officers, Jack, Ken and Brian, as well as from Kray, Patsy Manning and other defence witnesses. A reference was made to an exhibit, Exhibit 6, which is a document entitled "Instruction to undercover officers", and it was suggested that the undercover officers had exceeded their instructions and had entrapped Kray. It was submitted that in order to know fully the nature and extent of the investigation by the undercover officers, evidence as to events before 9th May should have been considered, including those at the funeral of Kray's son. Reference was made to the substantial gifts which were given to Kray including the gold lighter for his birthday in July and a football signed by the Newcastle United team intended to raise funds for a cancer charity. Expensive air tickets had been purchased for Kray and Field, and accommodation and entertainment at the Lynden Hall Hotel. Reference was made to the loan of £500 on 7th July by Jack and to the payment of £50 by Deano to Kray as early as 9th May at Patsy Manning's birthday party. Patsy Manning gave evidence that he was a well-known Birmingham character and known as a friend of Kray. He too obtained hand-outs because of his reputation from the good old days. Indian Joe Summers was a wealthy businessman and a friend of his and he described in the voir dire how the driver on that occasion, at the funeral of 21st March, had been George who had been substituted for Indian Joe's ordinary chauffeur. Manning had introduced George to Kray at the funeral and George had introduced to Patsy his brother, as he was described, Deano. George and Deano had entertained Patsy Manning lavishly and given him money and had frequently spoken of wanting to meet Charlie Kray. Eventually at his birthday party on 9th May the meeting occurred and they in turn introduced Lisa, allegedly a girlfriend of Deano, and the witness Jack, allegedly a business partner of Deano. The prosecution objected to the disclosure of documents on the grounds of public interest immunity. That was the subject of a number of ex parte hearings at which the judge heard counsel for the prosecution. It is clear that the judge himself considered the submissions of prosecuting counsel and himself considered the documents, the disclosure of which was being resisted. We have referred to the evidence of Manning at the voir dire because it formed the basis for the request of the defence that they should know more about the infiltration methods used and should know what was done at an earlier date than 9th May. They should know of the sequence of events by which the undercover officers were put in touch with Kray. They should know, counsel submitted, the status and role of the others whose names had been mentioned. Only with that information could a proper appraisal be made by the judge and a proper investigation be made on behalf of the defendant as to whether there had been entrapment and as to whether it was fair that the evidence should be included. It has been necessary to refer in some detail to the background events to make clear the basis of this application for leave to appeal and what is said in support of it. The first ground of appeal is that: "The learned judge misdirected himself in his rulings on public interest immunity and failed to disclose material to the defence which would permit Kray to put forward a tenable case in its best light [and without which he was unfairly hindered in that task]. Although the defence have best reason for unease concerning the roles of George, Deano Lisa and Indian Joe Summers in the infiltration, there may well be other matters of concern presently unknown there were also suppressed. We invite the Court of Appeal to agree with the judge's order generally." Before the Court heard submissions from Mr Goldberg QC on behalf of the applicant, each member of the Court had considered the documents, the disclosure of which was, upon the application of the prosecution to the trial judge, not disclosed to the defence. Counsel for the prosecution has been present at this hearing and Mr Kelsey-Fry, who appeared at the trial, was reminded that if matters arose during the appeal which involved the Court reconsidering the disclosure of documents or which made it appropriate that he should seek leave to make submissions ex parte to the court on the subject of disclosure and the appropriateness of non-disclosure he should so indicate. In the event Mr Kelsey-Fry has not made submissions and the Court has not found it appropriate to order the disclosure of further documents. The judge had ruled that all material relating to the method of Jack's infiltration was subject to public interest immunity. The second ground of appeal is that: "The learned judge wrongly refused to exclude the police evidence on voir dire on the grounds of entrapment falling foul of section 78." Mr Goldberg has submitted that the defence were disadvantaged in being deprived of the opportunity to investigate the methods of infiltration by the police before 9th May. Was the police operation more sinister than it appeared, Mr Goldberg asks rhetorically? There was certainly before the judge at the voir dire and later before the jury evidence of Kray's alleged vulnerability, the giving to him of substantial gifts and other benefits by undercover police officers. It is submitted that it would have been worse for the police if investigation of earlier events had been permitted by way of disclosure of documents and evidence as to the status and role of George, Deano, Lisa and Indian Joe Summers and whether they or any of them were police officers or police agents. Deano had admittedly given Kray £50. Had George himself installed Indian Joe's chauffeur. More information, it was submitted, would strengthen the case that the trap was carefully bated and amounted to an entrapment. Mr Goldberg's submission to the judge appears in the inter partes hearings. Before dealing with the general grounds of appeal to which we have referred, we mention a third ground which it is appropriate to deal with first. It is that: "The learned judge wrongly refused to compel the attendance at court of Indian Joe Summers as a defence witness." This is put as a particular of the more general allegations to which we have referred. What happened was that Summers declined to appear by way of witness summons and Mr Goldberg applied for a warrant. He relied upon the provisions of section 4(2) of the Criminal Proceedings (Attendance of Witnesses) Act 1965. He sought a warrant from the judge for the arrest of Summers as a means of securing his attendance and evidence at the trial. It is accepted that the judge has a discretion as to whether to issue a warrant in circumstances such as these, and the materiality of the proposed evidence of the potential witness is an important factor in considering whether the warrant should be issued. Mr Goldberg put it to the judge in this way (page 20 of transcript 4): "I submit to you he is a very relevant witness and you ought to take his evidence into account on the issue of section 78, fairness, in your deciding. All this man Joe Summers does is to take the parcel one stage further back. Suppose we were before the jury, let me test it in this way; could anyone say I am not entitled to call this evidence in order to say to the jury, look how they that set this man up for a sting operation calculated to make this silly old fool, who is in need of a hand out and a tenner, fall for it and make matters worse for himself. Am I not entitled to show the something by which they have set him up, in my submission plainly I am if it is relevant for a jury, as it would be in due course. Is it not equally relevant for you on a section 78 application when you are asked to say the police operation has been unfair?" The judge ruled in this way: "I take the view there has to be some limit to material which is called in any criminal case and I am satisfied that the relevant material here is what took place between this defendant and the people he was dealing with." In our judgment, against the background in this case, the judge was entitled, in the exercise of his discretion, not to issue a warrant in relation to Summers. There was admittedly in this case an elaborate and sophisticated exercise in infiltration. Considerable evidence was called, including that of the undercover officers, and we have mentioned the gifts and other conduct which was involved. The first point to be made is that, as Mr Goldberg fairly accepted, it is not known what Summers would have said had he been called to give evidence. The highest that Mr Goldberg could put it is that he might conceivably get answers which were favourable to him in the sense of giving further information about the police infiltration and the methods adopted. However second and more important, even if he had obtained answers from Summers as to the role of George the chauffeur and Summers himself, there was not a real possibility that such information as to what had happened at that earlier stage would have affected the judge's view of the overall position under section 78 or the judge's view of the case. Materiality is an important factor, and in our judgment it is not a real possibility that anything that Summers might have said in evidence as to the earlier events would have affected the outcome of the ruling under section 78, the ruling on the voir dire or of the jury's conduct of the case. That applies, in our judgment, too, to the more general points raised in grounds of appeal (a) and (b). The judge was entitled to make the rulings which he did. At page 7D of transcript 4A, ruling on 8th May following the voir dire: "Dealing in turn with those items first, was the officer acting as an agent provocateur etc? On the facts before me, I come to the conclusion that I am not satisfied that Jack or Brian or Ken were acting as agent provocateur. I am satisfied that the defendant, although subject to a trick, was a victim of his own criminality and on that point and related to the next matter, what was the nature of any entrapment? I find as a fact that despite it being urged upon me the defendant was not unusually vulnerable. I also find as a fact because I have the advantage of being able to listen to a large number of tape recorded conversations, including phone calls as well as face the face conversations, that the dealings that the police officers had with the defendant were on equal terms despite what I have heard about his lack of funds and the amounts which were spent on the exercise by the officers in hospitality, drinks, gifts were by no means excessive or oppressive in the context of this case and the undercover operation. Fourthly, how active or passive was the officer's role in obtaining the evidence on the facts before me. I come to the conclusion once the officer in this case - Jack - mentioned drugs, thereafter there was no more than mere repetition of the same theme throughout and his actions I also find as a fault, (sic) fall far short of him being guilty of an offence of soliciting a drug deal." The judge went on to consider the nature of the evidence of the interviews, that which was recorded and that which was not recorded, and having done so he ruled at page 11: ".....that the whole of the prosecution case, as it was presented during the voir dire, that is taped and untaped, should go before the jury, subject of course to the negotiation and discussions....." as to the need to edit by agreement. The defence of Kray was that he was puffing or bulling. He was a vulnerable man who received gifts, and in the circumstances the defence ought to have been allowed to make further investigation into the background. He was admittedly involved in a number of meetings. His evidence was that he had no knowledge of the handover of the drugs or that it was in fact to occur. Making his ruling, both on the section 78 application and upon what should properly be disclosed to the defence in order that the defence should not be prejudiced in the presentation of its case, the judge was entitled to have regard to the admitted evidence of involvement at social meetings and to the nature of the defence put forward that words were said but that they were mere puffing. We have referred in some detail to the facts of the case. Against that background it is not, in our judgment, a real possibility that defence access to further material about the events before 9th May or further material about the status and roles of George, Deano, Lisa or Indian Joe would have influenced the judge's finding upon the voir dire or the jury's finding at the conclusion of the trial. Ground (c) requires separate consideration. It is that: "The learned judge wrongly placed pressure on the co-defendant Field which had the effect of depriving the defence of his evidence." Field was plainly a potential witness at the voir dire. He had made a written statement before he had pleaded guilty and that statement had, shortly before he pleaded guilty, been disclosed to Kray's solicitors - that was on 15th April. It was later that day that Field pleaded guilty. It is reasonable to assume that the statement was given to his own solicitors by Field at a time when he, Field, believed that he could well be giving evidence at the voir dire. In that statement he said that Deano had handed him the drugs subject to the count in the indictment. The prosecution accept that if there was evidence that it was Deano who handed Field the drugs which were supplied, the defence were entitled to know whether Deano was a police officer or agent. When Field was, in the event, called at the voir dire he declined to answer questions and the contents of his statement were not therefore in evidence at the voir dire nor was there any enquiry as to the truthfulness of what he had put in his statement. Mr Goldberg's submission is that Field was deterred from giving evidence by comments made by the judge which would have come to the attention of Field via his legal advisors. The comments, it is submitted, were to the effect that Field's sentence might be influenced by the evidence which he gave at the voir dire. It is fundamental, Mr Goldberg submits, that a judge must not deter a co-defendant who has pleaded guilty from giving evidence at the trial of a defendant who has pleaded not guilty. One further factor needs to be mentioned, and that is that before Field pleaded guilty his counsel had sought to address the judge in chambers with a view to obtaining an indication from the judge as to what sentence the judge had in mind upon a finding of guilt against Field. Kray's counsel was also present in chambers when the following indication was given by the judge, page 6H of the transcript of 15th April: "Acting on the facts in the papers before me, I would have thought the sentence that I would have in mind at this point - I must emphasise because, of course, as you know, things do change during a trial - either way a sentence upon conviction by a jury at this point today that I would say would be in the range of 14 years." It is common ground that, in the course of subsequent submissions by Mr Goldberg to the judge, the judge made it clear that in no circumstances would he have exceeded the figure mentioned in the indication which he gave. It is also common ground that Mr Goldberg did invite the judge to sentence Field before the trial took place, a course which the judge declined to adopt. There were prolonged and protracted submissions on behalf of the applicant by Mr Goldberg. No doubt Mr Goldberg was entitled to know the judge's position in relation to Mr Field and his giving evidence at the voir dire. At volume 1, 17th April 1997, page 5E, the judge said: "..... Mr Field having pleaded guilty no doubt would not want to put himself in a position of losing any credit than might normally be extended to someone pleading guilty." The judge referred to the appropriateness of Field obtaining legal advice, and it is accepted by Mr Goldberg that it was appropriate for the judge to encourage the giving of legal advice to Field. What is complained about is the suggestion which it is said the judge made that the eventual sentence upon Field would turn upon the evidence which he gave at the voir dire. At submissions on 21st April 1997 Mr Goldberg, in volume 2, said at page 3B: ".....my present intention is to force Mr Field into the box by way of witness summons and to see what happens, bearing in mind, as you know, that I do have a two page proof and it was given to me quite voluntarily at an early stage of the case." The judge made these statements at page 5E: "I am thinking out loud as to whether he [that is Field] might feel he is going to lose some credit for a plea of guilty, and indeed an early plea of guilty, by going into the witness box and giving certain evidence which I might well reject out of hand." At page 8B to F: "I think I am entitled to take the view that if he were to give evidence, which I came to the conclusion as a tribunal of fact was a pack of lies from beginning to end, I think I would be entitled to say that does result in him losing some credit for what would otherwise have been an unequivocal plea of guilty accepting his guilt. Now, I do not think I am in breach of any principle if I say that I cannot possibly close my eyes and ears to what Mr Field may say, albeit only a witness in someone else's defence, I just do not think that is a proper exercise of my discretion. That means that I must, after someone has pleaded guilty, ignore everything that he does thereafter even if I think it is wholly wrong and an attempt to pervert the course of justice, that sort of thing." At page 10D, Mr Goldberg having stated that the judge's remarks were calculated to convey the impression that if he gives evidence favourable to Mr Kray it will count against him on sentence, the judge replied: "That is much too wide an interpretation of my remarks, Mr Goldberg. I do not know what he will say. I do not know whether he will say something which is favourable to the Crown or favourable to Mr Kray. All I am saying is if he says a certain piece of evidence which is clearly untrue and calculated to misled then am I not entitled to take it into account when assessing what credit I give for his earlier plea of guilty?" At page 11B, Mr Goldberg having commented that Field should not be given the impression that if he gives evidence favourable to the defence and if the judge rejects that evidence it can result in extra years of incarceration, the judge said: "No, that is not right, it can result in loss of credit for an unequivocal plea of guilty, a slight difference there." At page 12D the judge said: "I think that it is wrong to send out a signal to a witness, a potential witness, that come what may he is going to get what I can only describe as favourable treatment. He must realise that within the range of sentence that I indicated I have a residual discretion as to what sentence ---- MR GOLDBERG: ---- as against him if you do not like the colour of his evidence, that cannot be right. JUDGE CARROLL: No, it is not a question of exercising discretion against him, it is exercising my discretion in deciding what the proper sentence will be in all the circumstances that obtain at the time of passing that sentence." At page 16G the judge said: "One cannot be issuing carte blanche to convicted defendants who then want to give evidence in the case. I cannot possibly divorce myself from what I hear a convicted defendant say, albeit as a witness for a defendant on trial, but strictly speaking in his own case, his own mitigation." At page 18F he said: "..... I have not made up my mind what the final sentence will be, I can only do that when I look at all the mitigating features and the aggravating features." It will be clear from the extracts to which we have referred that the submissions went on for a very considerable time. Mr Goldberg fairly accepted in the course of his submissions yesterday that some of his remarks, which the Court regarded as unfortunate, were made in the heat of battle. Further, his suggestion, that late in the submissions, that the judge was interrupting him was, in our judgment, an unfair one having regard to the considerable patience which the judge was showing in listening to and considering the submissions. Mr Goldberg relies on the recent case of Lawless (1998) 2 Cr. App. R.(S.) 176. We have it in transcript, a decision of this Court, Swinton Thomas LJ giving the judgment of the Court on 12th December 1997. That was a case where the Recorder had heard a defendant in the trial of a co-defendant who had pleaded not guilty but had himself pleaded guilty. The judge took what appeared to the court, and to this Court, to be an extreme position. The judge found that the evidence given by the co-defendant who pleaded guilty was "lying evidence on behalf of your friend". The judge said: "..... I am not going to accede to the usual course of giving credit for a guilty plea. It seems to me that you had the opportunity to earn that credit and you threw it away." Plainly that was an extreme position which this Court deplored in its judgment. Swinton Thomas LJ stated: "Unwittingly the Recorder was in truth sentencing this appellant for something in respect of which he had not been convicted, namely telling lies in the witness box. Needles to say a co-defendant is not to be encouraged to go into the witness box and tell a pack of lies. However, it is also important that a co-defendant should not be inhibited from giving evidence on the basis that if that evidence should be disbelieved he will lose the credit which otherwise he would get for his plea." Mr Goldberg submits that the remarks of the learned judge in the present case fall foul of that statement of principle by Swinton Thomas LJ. We are in no doubt that it is right, in a situation such as the present where a defendant has pleaded guilty, for the judge to keep a discretion. He should keep a discretion as to the sentence which is appropriate when all the evidence in the trial has been heard. That is so whether or not an indication is given, but it will be clear that the judge, in giving the indication which in this case he did give, kept open that discretion by referring to the events of the forthcoming trial. It is also clear from the exchanges in the course of the interlocutory application that the judge sought to keep open that discretion. One reason for it is that the evidence given by the defendant who has pleaded guilty in the trial may throw light on the overall circumstances of the case which involves both himself and the defendants who have pleaded not guilty. That light may work to the advantage of the defendant who has pleaded guilty or the disadvantage. The judge must, however, sentence on the basis of the evidence as a whole including that given at the trial, not on assumptions which may be proved by events to be false. It would not, in our judgment, be right to give an assurance to a defendant when he has pleaded guilty that whatever he said at the trial the sentence would stay the same. It would not be right for the judge to give the impression when giving an indication to a defendant pleading guilty that the judge will ignore subsequent events and what emerges at the trial. One result of that could be that a defendant who has pleaded guilty on receipt of such an assurance might then, in the course of evidence, place all the blame upon himself without disadvantage to him but to the great advantage of a defendant who had pleaded not guilty. That would not be in the interests of justice. The Court should bear that in mind when considering the submissions of Mr Goldberg. Secondly, what the judge said must be seen against the background of advice which Field would have been given in any event. Mr Goldberg accepted and vigorously asserted that defendants in the position of having pleaded guilty, would very commonly, if not almost invariably, be given advice by their counsel as to the dangers in which they would be placing themselves if they chose to give evidence. Those dangers are obvious. The judge's comments can, in our judgment, no more than have echoed what Field's counsel would have told him in any event. Thirdly, the remarks as a whole do not offend against the danger and mischief identified in Lawless . They indicate the judge's concern to retain a discretion which is essential to the proper administration of justice. Mr Goldberg's best point, in our view, is that amongst the many statements which the judge made, he did specifically refer on two occasions to lies by the defendant who has pleaded guilty when giving evidence. We will not repeat the two references involved. Read as a whole, however, in our judgment the comments of the judge cannot properly be seen as improperly inhibiting Field from giving evidence at the voir dire. Moreover, the Court in Lawless was not saying that lies told by the defendant who has pleaded guilty in such a situation can never be relevant and the judge in this case was not saying that any lies told by the defendant giving evidence would necessarily affect the sentence to which he would be subjected. In ruling that it is not arguable that an appeal could be allowed on this ground, the Court is not encouraging judges to enter into the type of prolonged and somewhat ill-natured discussion which took place between the judge and Mr Goldberg on this occasion. The final ground of appeal is: "The learned judge wrongly misdirected the jury in denying Kray a defence to Count 1 in law." Count 1 was a charge of offering to supply a controlled drug under section 4(3)(a) of the Misuse of Drugs Act 1971. When giving his directions of law the judge said this at page 5 of the summing-up: "It is entirely a matter of fact for you to decide but you may have little difficulty - it is a matter for you - concluding that the defendant did in fact offer to supply that substance. Indeed the defendant himself has admitted making such an offer but for his own reasons. As a matter of law - I direct you - even if when the defendant made that offer to supply that cocaine he did not have the intention to supply the cocaine or indeed anything, it is still an offer to supply and I say to you this even though that is a matter of law you may think it is a matter of common sense. The Crown of course go on to say, it was not a bogus offer because if you look at what was being offered and what in fact in due course happened, it was clearly not a bogus offer at the time. What do the defence say about Count 1, bearing in mind as I have already directed you, it is for the prosecution to prove guilt not for the defendant to prove anything. The defence say it was an offer, a bogus one, but one which the defendant intended would be believed by Jack and Ken. As I have said already even if it were a sham offer that was made that would not afford a defence in law." The applicant's evidence on this question appears, amongst other places, at page 73F: "..... I was never being serious regarding the offer to supply drugs, I swear on my son's grave. I am swearing it now." And at page 73B: ".....if he had asked me for gold bars during that conversation I would have said yes... I was saying hundreds but I was not being serious. He knew I was bulling because they had surveillance on me....." The prosecution argued that the offence was complete when the offer was made. Mr Goldberg's submission is that there is a difference between an offer which the offeree believes to be genuine and an offer which the offeree knows to be a sham. The submission is that there is no offer within the meaning of section 4(3) of the Act unless the offeree believes the offer to be a genuine offer. It was therefore a misdirection of law to say that, upon the applicant's own statement that he had made an offer, a conviction should follow. In the ordinary sense of the word "offer", an offer was made in the circumstances of this case. Secondly, it was not made as an isolated and random event. It must be seen in the context of the evidence of Kray's presence at meetings and his participation in events which we have described and which, to some extent, he admitted. We would not exclude the possibility that what might be described as an offer could be made in circumstances which made it so obviously a charade or a joke that it could not properly be regarded as an offer in any real sense. That, however, in our judgment, is far from the situation in this case and against the background which we have described. Behaving as he admittedly did, Kray cannot, in our judgment, arguably say that the offer was not an offer within the meaning of section 4(3) whatever the state of the mind of the officers. The defence face a further obstacle upon this ground of appeal. Kray was found guilty on the count alleging actual supply as well as that alleging an offer. It follows that the jury plainly concluded that there was a supply in which Kray was criminally involved. They rejected the defence that Kray's conduct was throughout bulling and a sham. Mr Goldberg nevertheless submitted that it was conceivable that upon a different legal direction a jury might have concluded that Kray was bulling at the time of the offer to supply on 27th June - that is Count 1 - but was no longer bulling at the time of the supply on 31st July in Count 3. This Court is concerned with the safety of verdicts. On the facts of this case we regard that suggestion of Mr Goldberg as a fanciful suggestion. In our judgment there is no arguable ground of appeal on this ground or, for the reasons given, on any of the other grounds of appeal. It is for those reasons that this Court stated yesterday that it was refusing the application for leave to appeal against conviction. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII