Doyle & Ors, R v

No: 2016/00761/B5, 2016/00765/B5 & 2016/00877/B5 Neutral Citation Number: [2017] EWCA Crim 340 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 8 February 2017 B e f o r e: LADY JUSTICE RAFFERTY DBE MR JUSTICE DINGEMANS HIS HONOUR JUDGE BURBIDGE (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - R E G I N A v HUGH DOYLE CARL WOOD WILLIAM LINCOLN - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - Mr P Keleher QC appeared on behalf of Doyle Mr N Corsellis and Mr P Hill appeared on behalf of Wood Mr M Tomassi appeared on behalf of Lincoln The Crown did not appear and were not represented - - - - - - - - - - - - - - - - - - - - J U D G M E N T LADY JUSTICE RAFFERTY: This is a renewed application for leave to appeal conviction by Hugh Doyle (49), Carl Wood (59) and William Lincoln (61) after refusal by the single judge. Doyle, on 14th January 2016 in the Crown Court sitting at Woolwich, was convicted of concealing, converting or transferring criminal property (count 3 on the indictment) and on 9th March 2016 sentenced to 21 months' imprisonment suspended for 24. Wood, on 14th December 2015, in the same court, was convicted of a like conspiracy to commit burglary (count 1) and conspiracy to conceal, convert or transfer criminal property (count 2). On 9th March 2016 he was sentenced to six years' imprisonment concurrent. On 14th January 2016, in the same court, Lincoln was similarly convicted and on 9th March sentenced to seven years' imprisonment. There were co-accused Collins, Jones, Perkins and Reader who pleaded guilty to conspiracy to commit burglary and were sentenced to seven years (Collins, Jones, Perkins) and six years three months (Reader). The facts can be taken briefly. Between 2nd and 5th April 2015, a group including Collins, Jones, Perkins, Reader, "Man F" and "Basil" carried out a plan to steal from the basement vault of 88 Hatton Garden. A large amount of gold, bullion, jewellery, precious gems, cash and other valuables were stolen, its estimated value a little shy of £14 million. Considerable planning had been devoted to the burglary. Tools and machines were used to carry it out (count 1). Following it, a number agreed to conceal and then convert the items into money or to transfer them from one to another (count 2). Doyle was involved in concealing, converting or transferring in the Old Wheatsheaf Public House car park (count 3). At 8.20 in the evening of 2nd April 2015 a white van driven by Collins parked in Hatton Garden. Jones and "F" got out, walked to the block and then went back to the van. "Basil" went into 88 Hatton Garden through its front door. The van pulled up next to its fire escape. Jones, Perkins, Reader and "F" got out and unloaded bags, tools, bins and equipment which they then took in. Although they drilled through a concrete wall, they could not reach the safety deposit boxes, so at about 8 in the morning of 3rd April 2015 they drove home. Next evening, Collins, Jones, Perkins, "F" and "Basil" returned to 88 Hatton Garden. After discussion in the street, "F" left and shortly, Collins as the lookout, Jones Perkins and "Basil" gained access to 73 of the 999 deposit boxes in the vault. After the burglary, a number of the men were placed under surveillance and probes (covert listening devices) put in Collins' and Perkins' cars. Some proceeds of the burglary were said to have been given to Harbinson by Lincoln. On 18th May 2015, Collins told Doyle he was keen to transfer some proceeds car to car in the car park of the Old Wheatsheaf next to Doyle's work. Next morning, Doyle's wife and an employee having left, proceeds were so transferred in bags from Harbinson's to Collins' car. Later the day, arrested and interviewed, the applicants declined to answer any question. The Crown's case on Doyle was that he facilitated the transfer of criminal property by ensuring his business premises were empty when Collins came to move some proceeds. Its case in relation to Wood was that he was "F". Its case in relation to Lincoln was that he drove away the stolen items in a car and where conversations were recorded on the probes is "Bill". The Crown led surveillance evidence, cell site evidence, telephone contact, automatic number plate recognition and circumstantial evidence. It relied upon the applicants' silence in interview as setting up an adverse inference. It relied too on conversations recorded in the two probes in which "Hughie", "Carl" and "Bill" were mentioned. "Bill" as we have said is Lincoln, "Hughie" is Doyle, and "Carl" is Wood. Doyle's case was that Collins contacted him on 18th May 2015 to discuss using the loft space of Bill's business premises so as to store fireworks and so as to enable possible investment in the business. Collins wanted to look at the premises the next day and when he arrived, as it happened everyone was out. Doyle gave evidence. Wood's defence was alibi. He gave evidence. Lincoln's case was that he was not at the burglary, he was not a getaway driver, he was not involved in the planning and he had made no arrangements with others to dispose of property. Whilst he handled some bags containing the proceeds, he had no knowledge of their contents. He gave evidence. The issue therefore for the jury as to Doyle was whether he had facilitated the transfer of the proceeds in the car park by ensuring no one was around. As to Wood, whether he were "F" or whether his alibi withstood scrutiny. As to Lincoln, whether he were part of the conspiracy and whether he knew the bags he gave Collins on 19th May 2015 held the proceeds of the burglary. Doyle submitted that there was no case to answer on counts 2 or 3 in the alternatives. The judge acknowledged that his participation was limited to making available a location with a degree of privacy for the transfer of some proceeds of the burglary. Whilst Doyle had no proprietary interest in the car park, it was a reasonable inference that the transfer would not have taken place without his agreement. A reasonable jury could draw the inference that Doyle was acting in support of the criminal enterprise reflected in count 2. Whether such inferences should be drawn was a matter for the jury. In ruling on the admissibility of the probe evidence, the judge recited the correct approach to resolving the questions that had arisen. Referring to R v Twist [2011] EWCA Crim 1143 the judge considered the framework created by hearsay provisions set out in the Criminal Justice Act 2003. He considered potential unfairness, either under the terms of section 78 of the Police and Criminal Evidence Act 1984 or section 114(1)(d) of the Criminal Justice Act 2003 of admitting the probe evidence absent the speakers not called as witnesses. He concluded that the decision had to be fact-specific and went through the 14 extracts in play, reaching a conclusion as to the admissibility of each in succession. As to the majority, he ruled that they were not hearsay but admissible in the interests of justice. For Doyle the Grounds of Appeal were that the judge fell into error in admitting the evidence of the probes which it is said were hearsay and not admissible as in furtherance of the common design. He was wrong to reject the submission as to count 3 that there was no case to answer at the conclusion of the case for the Crown and there was insufficient evidence of participation such that a jury could reject all conclusions consistent with innocence. For Wood, the ground is that the judge erred in admitting the antecedent record of erstwhile co-defendants in reliance upon the terms of section 100 of the Criminal Justice Act 2003 and for Lincoln, the judge erred in admitting the probe evidence and the warnings to the jury about how to treat it, whilst correct, were insufficient mechanism to deal with the probe evidence as a whole. Before we turn to the conclusion of the single judge in this renewed application, it is worth pausing to read into this brief judgment some direct quotations from Twist. The then Vice President of the Court of Appeal (Criminal Division) Hughes LJ suggested that when hearsay was in issue a correct approach for the court was to remember to distinguish between the speaker wishing the hearer to act upon his message, compared to the speaker wishing the hearer to act upon the basis that a matter in the message was as stated, in other words was true. Only the second triggered the hearsay rules. The court should approach matters thus. First, identify what fact or matter it is sought to prove. Second, ask whether there was a statement of that matter in the communication. If there is not, no question of hearsay arises, whatever other matters might be contained in the communication. Third, if the answer is "yes" ask whether it were one of the purposes, not necessarily only or dominant, of the maker of the communication that the recipient, or any other, should believe that matter or act upon it as true. If the answer to that is "yes" it is hearsay, if the answer is "no" it is not. The matter stated for the purposes of section 114(1) of the 2003 Act will usually be a fact but may also be an opinion. It was important, said the court, to remember that deciding whether a communication were or were not hearsay may not be the end of the question of admissibility. Even if communications are not relied on for their hearsay content as defined, that does not relieve the court of applying the usual test for admissibility. The fact it is sought to prove must be relevant. Further, it must be that that fact is a legitimate conclusion drawable from the evidence. Refusing leave, the single judge, as to Doyle and as to Lincoln said this: "Ground 1 1. The Judge ruled that the probe evidence was admissible for three separate reasons, namely that the parts of the probe evidence which were adduced were not hearsay; that they were statements made in pursuance of the conspiracy and that it was in the interests of justice that they should be adduced. While I consider that it may be arguable that the evidence was not admissible on the first two bases, it is not sensibly arguable that they were not admissible in the interests of justice. 2. The probe evidence was adduced to show that names which could have related to the Defendants in the trial were being used in conversations by men who had taken part in the burglary and that the context demonstrated that the people who could have been the defendants in the trial played a part in the burglary. While it is not arguable that the use of the names was hearsay because of the principles established in the case of Twist, it may be arguable that some of the statements of opinion and fact which the jury may have used to establish the part played in the conspiracy by the people named were hearsay. 3. It is not arguable that the Judge was wrong to treat the joint enterprise as extending to the successful realisation of the proceeds of the burglary; it may be arguable that not all of the probe evidence on which the jury could have relied was admissible as being statements made in pursuance of the joint enterprise. 4. If the arguments set out in paras 3 and 4 are pursued, the Appellants need to identify with clarity which parts of the probe evidence come outside the principles in Twist and were not statements made in pursuance of the joint enterprise." We digress from the remarks of the single judge there to explain that that gauntlet was picked up this morning by Mr Tomassi for Bill Lincoln and he took us to six examples in the transcript of the probe which he submitted underlined the strength of his ground of appeal. There were more examples but his point was either made or not made by reference to the first six. Returning to the conclusion of the single judge: "5. It is not arguable that the Judge was wrong to admit the probe evidence in the interests of justice. He considered all the relevant matters set out in s.114(2) of the CJA 2003. The conclusions he reached in relation to those matters are within the range of conclusions that he was entitled to draw on the evidence. It is not arguable that the prosecution did not have a good reason for not calling the speakers on the probe. 6. The circumstances in which the probe evidence was made and the nature of the conversations mean that it is not sensibly arguable that the contents were concocted, however dishonest the speakers may have been. 7. The Judge correctly directed the jury how they should approach the probe evidence. 8. It is not arguable that the admission of the probe evidence rendered the verdicts unsafe." As to ground 2, for Doyle: "1. It is not arguable that the Judge was wrong to refuse the submission of no case to answer on counts 2 and 3. This ground of appeal only relates to the submission on count 3 as the jury acquitted you on count 2. 2. The evidence was that a transfer of stolen property took place on a car park which you used on 19th May. While you had no proprietary interest in the car park you could provide information as to the suitability of it for the transfer and to take steps to ensure that people who worked for you were not present at the time of the transfer so far as you could. 3. There was a meeting between you and Collins on the day before the transfer and you were recording saying that you would get rid of your employee suggesting that you did not want the conversation overheard. The jury could properly infer from that that you knew that your conversation was going to refer to criminal conduct. 4. Even without the evidence from the probe the jury could properly infer from the fact of the meeting on the l8th followed by the transfer on the 19th that your conversation on the 18th did relate to the transfer taking place on the 19th. 5. The jury were entitled to infer that the fact that you and Dave were absent from your office at the time of the handover was not a coincidence and that you knew that transferring of criminal property was to take place." As to Wood, the judge said: "It is not arguable that the admission of the previous convictions of the other conspirators who had pleaded guilty renders the verdicts of guilty in your case unsafe. It is not arguable that the Judge was wrong to admit the evidence of previous convictions under s.100(1)(a) particularly in the light of the fact that one of the Defendants in your trial supported its admission." We interpose there, the submissions of Mr Corsellis this morning for Wood points out that in play was not section 100(1)(a) but section 100(1)(b). Whether or not the transcribed views of the single judge were a typographical error is not the point. The submission he makes is that even if it were pertinent that one of the defendants in the dock sought to support the admission, that properly advanced would have been by that defendant's application himself to adduce the relevant bad character. Returning to the words of the single judge: "11. The prosecution were entitled to adduce as part of their case that those who pleaded guilty were experienced criminals who were involved in the careful planning of a very serious and audacious crime. It was relevant to the issue of the reason for the contact between you and Jones who had pleaded guilty. 12. While I am not convinced that the evidence of convictions adds significant weight to the suggestion that those involved in the conspiracy would only recruit people they could trust, it is relevant to the issue of your relationship with Jones and what you knew about him. 13. Even if the Judge was arguably wrong to admit the convictions, it is not arguable that it could render your conviction unsafe. A jury would be bound to infer from the nature of the crime that those who committed it were experienced criminals whether or not they had been caught in the past." We add simply that Mr Corsellis also addressed us on the unusual fact of the admission, in the bad character section of evidence, of the sentences imposed on those affected. We say simply that that is not precluded by anything to which we were taken and whilst it is less usual than usual, even if it were not something that any member of this court would have permitted it is far from fatal to the safety of the conviction. We have listened with great attention to the skill with which counsel for each applicant has advanced his arguments today. We make plain that as requested we have considered the provisions of section 121 of the Criminal Justice Act 2003, that is whether multiple hearsay were in play. We have reviewed, as Mr Tomassi has invited us to do, the particularised extracts from the probe which he argues answer the gauntlet thrown down by the single judge. We have, as has been made clear, considered the points that Mr Corsellis advanced about the dangers created by the admission not just of the bad character but also of the detail of the sentence. Nothing we have heard persuades us that the single judge fell into error in any of his conclusions. We are certainly unpersuaded that he fell into error in deciding that whether or not two prior grounds may be arguable, the case passed the interests of justice test. Consequently, grateful as we are to all parties, this renewed application is rejected. Mr Keleher, your lay client retained his liberty, did he not? MR KELEHER: Yes, my Lady. LADY JUSTICE RAFFERTY: Mr Corsellis, yours did not and Mr Tomassi, William Lincoln did not, did they, six years and seven years. Is there any reason why we should not deduct time? MR TOMASSI: Yes, my Lady. The single judge in making his determination made it clear that there should not be any deduction of time. LADY JUSTICE RAFFERTY: Can you show us the rubric that says positively "I suggest that time should not be deducted"? MR TOMASSI: Yes, it comes -- my Lady I am so sorry but because the internet appears not to work in this building... LADY JUSTICE RAFFERTY: Yes, I am very sorry you are having to endure that Mr Tomassi. MR TOMASSI: Not at all. I noticed it in two places, most recently on the digital system where the reviewing lawyer specifically draws your attention to it. LADY JUSTICE RAFFERTY: Yes, now the reviewing lawyer in the Court of Appeal Summary writes: "The single judge opined that the full court should not consider deduction." MR TOMASSI: Yes. LADY JUSTICE RAFFERTY: I cannot find, and I have asked my Lords if they can find, any area where that is recorded in the conclusion of the single judge, as opposed to the single judge did not tick the box, which is where I thought you might be going to help me. MR TOMASSI: The single judge did not tick the box. LADY JUSTICE RAFFERTY: That is different from a positive averment. MR TOMASSI: With that I agree. There was a little bit of extra encouragement perhaps from what you have read. Does that pass muster? My Lady, it has come from somewhere. LADY JUSTICE RAFFERTY: Well I am not sure it is made out. Even if the judge did not tick the box, it does not stop the court deducting. Why should we not? MR THOMAS: My Lady, I would submit that the arguments that have been presented are credible, although ultimately unsuccessful. May I go a stage further? Reading the views of the single judge, certainly in the case of Mr Keleher's client and certainly in the case of Mr Lincoln, I know not in the case of Mr Corsellis' client, do they not at least offer a glimmer of hope because what it is said in paragraph 4 is if you are to pursue this you could perhaps help the court by delineating those parts and that is what we tried to do. LADY JUSTICE RAFFERTY: Mr Corsellis? MR CORSELLIS: My Lady, as with Mr Lincoln's case the box highlighting a reservation about a merit of pursuance is not ticked. Careful consideration was obviously given to taking the step of inviting your Lordships to consider the papers as obviously you have. We did not pursue the voluminous ground on Twist but on the ground that we did advance we respectfully submit that there are good reasons why forensically an argument could have been and has been deployed, we hope with a degree of persuasion and appropriate analysis, both under the question of the analysis under 100A, but also a concession as to whether or not the conviction added significant weight in terms of the circle of trust issue. As I say, this was considered professionally by myself and Mr Hill. Obviously I take the responsibility for the decision, together with my client, but I would respectfully submit that this has been a submission to you that has not been wholly without merit. I appreciate it has failed, but in my respectful submission it should not be one which could culminate in loss of time for Mr Wood. LADY JUSTICE RAFFERTY: Thank you. We will not deduct in either case.