R v Ataou
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE FRENCH,LORD JUSTICE WOOLF |
| Judgment Date | 17 December 1987 |
| Judgment citation (vLex) | [1987] EWCA Crim J1217-7 |
| Docket Number | No. 7439/F3/86 |
| Court | Court of Appeal (Criminal Division) |
| Date | 17 December 1987 |
[1987] EWCA Crim J1217-7
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Woolf
Mr. Justice Waterhouse
and
Mr. Justice French
No. 7439/F3/86
MR. E. RAW appeared as Counsel on behalf of the Appellant.
MR. M. SHERBOURNE appeared as Counsel on behalf of the Crown.
On 13th November, 1986 in the Crown Court at Southwark the appellant was found guilty of conspiracy to supply a controlled drug (count 1) and of supplying a controlled drug (count 9). He was sentenced to five years' imprisonment on each count to run concurrently. On count 1, conspiracy, he was charged jointly with two others, Harvey and Christodoulou, both of whom pleaded guilty to that count, so that on it the appellant stood trial alone. He was also sentenced to 12 months' imprisonment for breach of a suspended sentence which his convictions constituted. He now appeals against conviction on a point of law.
The point taken on appeal arises out of the following facts. As we have stated, Harvey pleaded guilty to count 1 of the indictment. He pleaded not guilty to two other counts and these were allowed to lie on the file marked in the usual way. Harvey then elected to give evidence for the prosecution. While he was in the witness-box it was sought on behalf of the appellant to cross-examine Harvey on a previous and allegedly inconsistent statement made to his, Harvey's, solicitor. Harvey claimed privilege successfully. The question is whether that claim to privilege should have suceeded.
The facts are shortly as follows, so far as the prosecution were concerned. In January, 1986 Harvey, who was a registered heroin addict, became acquainted with Christodoulou, and the latter supplied Harvey with heroin on a daily basis, a quantity being for his own use and a quantity for Harvey to sell. At the beginning of April, 1986 Christodoulou introduced Harvey to the appellant and told him to arrange for the time being to obtain supplies of heroin from the appellant. Accordingly, Harvey arranged to receive from the appellant a quantity of heroin, for which he paid £80 in part-payment, and thereafter every night for a week the appellant supplied Harvey with heroin.
After that period Christodoulou resumed as Harvey's supplier. On 27th May, 1986 Christodoulou and the appellant visited Harvey at his flat. Harvey was asked if he wanted further supplies. Harvey said that he had "run out" and handed over the sum of £150. Christodoulou said: "Let's go back and get some more at which all three men got into a car and left. During this visit it appeared to Harvey, so he said, that Christodoulou was in charge.
I interpose to say that the evidence as to all the foregoing conversations and dealings was given by Harvey, but that evidence was supported to a limited extent at least by evidence of police observations of the activities of the three persons concerned.
The car was stopped by a police officer, who told the three men that they had been observed and that the supply of heroin was suspected. The appellant admitted visiting Harvey's flat, but did not admit dealing in drugs, and is alleged to have said: "I know he is a dealer but I don't have nothing to do with him …." In the hearing of the appellant Christodoulou admitted having helped Harvey to "get gear" but denied being a dealer. Asked to comment on what had just been said, the appellant said: "Nothing to say, is there. He said it all." This was denied by the appellant when he gave evidence.
The appellant was later interviewed at the police station. He admitted having met Christodoulou that day in a betting-shop and having gone with him to visit Harvey, but he said that during the course of the visit he had remained downstairs while Harvey and Christodoulou were talking upstairs. He told the police that Christodoulou was going out to get heroin for Harvey, who had given him some cash. Asked what part he had played, the appellant said that he was not going to "stitch" himself up, but stressed that he had got nothing from the deals between Christodoulou and Harvey. He admitted having supplied Harvey twice on his own account, and gave as his reason for driving round with Christodoulou: "It's better if there's a couple of us and we know the same dealers."
The defence case was that the appellant's visit to Harvey's home had been quite innocent, and that he had stayed downstairs while Harvey and Christodoulou were talking upstairs. He said that he had got into the car with the other two men because they were going to give him a lift to Finsbury Park, where he proposed to visit his "granny". He denied having said anything incriminating when stopped by the police, and as to the interview at the police station his case was that it was pure invention by the police officers; that one officer would solemnly ask a question, the other would solemnly answer it, and they would then write it down, so that, according to him, the whole of the interview was a charade. He also alleged that he had been assaulted by one of the officers, who had hit him on the hand and had attempted to strangle him. In essence, he was saying that at no time had he conspired to supply heroin or supplied heroin as alleged in count 9.
Enough has been said to show that Harvey was an important witness for the prosecution and that the Crown case would have been substantially weakened had he been discredited.
The refusal to permit the appellant to cross-examine Harvey arose in the following way. During the course of Harvey's evidence a representative of the appellant's solicitors who were instructing Mr. Raw was looking through his file. He found an attendance note prepared by a Miss Miller, who had formerly been employed by the firm. The attendance note recorded that Miss Miller had interviewed Harvey for the purpose of obtaining his instructions, and that in the course of the interview Harvey had said words to the effect that the appellant was not involved with any dealings concerning heroin.
It became apparent before the trial that Harvey's case involved a conflict of interest between himself and the other two accused. He was invited, no doubt by his former solicitors, Miss Miller's employers, to instruct fresh solicitors, and he did so; so that by the time of the trial Christodoulou and the appellant were represented by Harvey's original solicitors and Harvey had fresh solicitors for the trial.
The statement that the appellant was not involved in any dealings concerning heroin was of course contrary to the evidence that Harvey had just given. The solicitor's representative told Mr. Raw what he had found. It was not contested, nor in our judgment could it properly have been contested, that in so informing Mr. Raw the representative acted in complete disregard of the firm's duty of confidentiality to their former client, Harvey. Mr. Raw's duty, on the other hand, was to his client, the appellant, and to no-one else.
It was therefore with complete propriety that Mr. Raw informed the judge that he would seek to cross-examine Harvey concerning what he had said to Miss Miller, so far as it was favourable to the appellant. The judge asked the jury to withdraw and heard argument in their absence.
While we have not the benefit of a transcript of that which occurred in the absence of the jury, it is agreed that the judge heard argument and ruled that such cross-examination was impermissible without the consent of Harvey, who refused to waive the alleged privilege. However, we have a transcript of the learned judge's ruling. He said:
"In this case there is a submission that an answer made by the witness Harvey to a lady who was then employed by his solicitor should be admissible despite the principle set out at paragraph 17-2 of Archbold Criminal Pleading and Practice which I read as follows: 'For the perfect administration of justice and for the protection of the confidence which exists between a solicitor and his client, it has been established as a principle of public policy that those confidential communications shall not be subject to production.'"
After reviewing Mr. Raw's submission in favour of admissibility on the basis that the inconsistent statement was relevant to Harvey's credit, the learned judge continued:
"The central issue in the submission, as it seems to me, is whether the confidence and confidentiality which is covered by that rule springs from the relationship of "solicitor and client, or springs from the case itself which is under discussion, namely the case of the defendant as opposed to the case of Harvey. I have come to the conclusion and rule that the protection springs from the relationship between solicitor and client and not only from the relationship which springs from solicitor and client coupled with the case. I can see great difficulties if it were otherwise or if the matter was to be pursued beyond the initial questions as it undoubtedly would be. In those circumstances I rule that the question may not be asked of the witness."
It is common ground that the question to which the learned judge was referring was to the following effect: "Did you have an interview with your solicitors on (the relevant date)?"
The consequence of the ruling was that the appellant lost the opportunity of having his...
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