R v Coughlan (Joseph)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SHAW |
| Judgment Date | 13 July 1976 |
| Neutral Citation | [1976] EWCA Crim J0713-2 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 2365/R/75 |
| Date | 13 July 1976 |
[1976] EWCA Crim J0713-2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Shaw
Mr. Justice Thesiger
and
Mr. Justice Talbot
No. 2365/R/75
MR. L. J. BLOM-COOPER Q.C. and Mr. S.M. SOLLY appeared on behalf of the Appellant.
MR. E.M. HILL and MR. T.F.H. CASSELL appeared on behalf of the Crown.
The Appellant was tried together with a man named MacLochlain at the Central Criminal Court on an indictment which charged them with conspiring together to cause explosions. At the stage that the matter was left to the jury no other person known or unknown was alleged by the prosecution to have been concerned in that conspiracy. In the course of the trial, the Appellant went into the witness box and gave evidence on oath. MacLochlain did not do so but he made a statement from the dock. Both were convicted and both sought leave to appeal against conviction. MacLochlain has not pursued his application before, the full Court. The Appellant was given leave, having put forward a number of grounds, some of which were plainly questions of law on which he was entitled to be heard as of right. Mr. Blom-Cooper, Q.C. confined his argument in this Court to four of those grounds. At the conclusion of the argument the Court dismissed the appeal and stated that it would give its reasons later. This we now do.
It is necessary to begin with some reference to the facts on which the prosecution relied. They alleged that the Appellant and MacLochlain were members of an active service unit of the IRA, who had come to England in July, 1974 under false names. They had gone to stay in a house in North London occupied by a family named Gallagher which offered, or so it was thought, a safe harbourage. On the 9th July, Patrick Gallagher was arrested on a charge relating to stolen goods. A warrant was obtained by the police to search his house for stolen property. Members of the Bomb Squad and of Special Branch had their own reasons for wishing to investigate those premises. They accompanied the police officers who executed the search warrant and entered the house with them. We assume for the purpose of this judgment that Mr. Blom-Cooper was right when he contended that their entry was not authorised by the warrant and constituted a trespass. It served however to reinforce their suspicions of the activities of the occupiers. The Appellant and MacLochlain were taken by surprise and attempted to escape from the rear. Mrs. Gallagher who was present said they were her brothers. At the outset they did not themselves vouchsafe any information as to who they were. When they did each at first lied about his own and the other's identity. Documents which appeared to carry sinister implications were found on MacLochlain. They included three diagrams of bomb detonating circuits and a pass to a British Petroleum oil refinery at Rochester in Kent. In the possession of the Appellant was a letter headed with the name and address of Patsy Gallagher addressed to "Dear John". The text of the letter proved to be in MacLochlain's writing. Both accused lied about the circumstances of their meeting and of their association. Each made a succession of statements to the police both orally and in writing. According to one police officer, MacLochlain admitted in an interview that he and the Appellant had come to England "to select targets and get things going". Another officer gave evidence to the effect that when the Appellant was told what MacLochlain had said he agreed "that was about it". So also it was alleged that the Appellant agreed with the contents of some of MacLochlain's written statements and vice versa. Insofar as anything told to the police by MacLochlain appeared to connect the Appellant with a bombing conspiracy, he denied that he had agreed with it and he repudiated the police evidence as to any alleged admission on his part. In the witness box he gave an account of his acquaintanceship with his co-defendant which began in a prison in the Republic of Ireland. He told of his convictions in that country for possessing explosives, but he said that he had not possessed them for other than innocent purposes. He had gone to the Gallaghers as Patsy Gallagher had promised to find work for him and MacLochlain.
He agreed he had told deliberate lies to the police but said he had done so because he was afraid of them and just wanted to get away. He had hoped to settle down to a new life in England. As for the bomb diagrams, he denied all knowledge of them as he did of any other incriminating material. At the police station he was, so he said, in no condition to answer all the questions put to him and he could not give proper attention to what had been written down by police officers in the statements he signed.
From the dock, MacLochlain read a self-exculpatory statement. He too said that he had come to England "to begin a new life". His association with the Appellant in England was "purely because while in prison I had become a good friend of his and I regarded him as being a mature and very responsible person". He explained his possession of the bomb diagrams and the BP pass as being fortuitous, innocent and unconnected with any projected bombing expedition. He denied being a party to any conspiracy with the Appellant.
The first ground of appeal advanced by Mr. Blom-Cooper was that at the outset of the summing up the learned Judge misdirected the jury by telling them that in the circumstances of the trial the jury must acquit both accused or find them both guilty. The criticism of this direction was that the old rule or principle on which it was founded no longer obtained because it was discredited if not repudiated by the House of Lords in D.P.P. v. Shannon 1975 AC 717. Mr. Blom-Cooper went on to complain that by linking the Appellant's position inescapably with that of his co-defendant the Judge had deprived the Appellant of the chance of an acquittal in his case even though the evidence against MacLochlain appeared so strong that the jury might feel constrained to find him guilty. The first relevant passage in the summing up begins at 5D of the transcript. It reads: "Now it is essential in this case that the prosecution must prove that McLochlain and Coughlan agreed together. There is no evidence in this case that either of them agreed with anybody else and although the charge as read to you at the beginning of the case refers to 'persons unknown' you will eliminate 'persons unknown' from your considerations. That leads you to this position, that supposing you were to take the view that one of these men had the purpose in coming to England of causing explosions but that the other one did not have that purpose in coming to England, had not reached any agreement that that purpose should be carried out in England, then you would have to acquit both of them even though you thought one had a sinister object in coming over to this country, and, of course, the offence of conspiracy as charged here involves that you find both these men guilty of having reached that agreement to cause explosions. Mr. Blom-Cooper, as a matter of law, is wrong when he suggests to you that you could have a situation when 'A' agrees with 'B' but 'B' does not agree with 'A'. It is obvious, is it not, that if you are going to have an agreement you must have two people who agree. I think that what Mr. Blom-Cooper was endeavouring to point out to you was, in essence, what I have just said to you, that unless you are sure that both men were in this plot then you will acquit both men because you cannot have one man conspiring with himself and, as I have just said, there is no evidence that any other persons were involved in this matter."
A further reference to this topic is made at 8H, which reads: "Now keep very clearly before you that the question which is at the heart of -dais case is whether MacLochlain and Coughlan agreed together to cause explositions and were in England together for that purpose. If you think it may well be that they, or either of them, had come here to get away from police harassment in their own country and to start a new working life here, if you think it may well be that that was the purpose of the journey of both or of one of them to this country and not the purpose of causing explosions you will acquit."
Lastly at the conclusion of his summing, he said at 78G to 79B: "Returning to the question which is at the heart of the case, having considered all the evidence, taking it as a whole, and having considered the case of each defendant separately, are you satisfied so that you are sure that MacLochlain agreed with Coughlan and Coughlan agreed with MacLochlain to cause explosions in England and that they came to England for the purpose of causing explosions here? If you are satisfied so that you are sure about that in the case of both of them - and it must be in the case of both of them - your verdict would be guilty; if you are not satisfied so as to be sure, if you have any reasonable doubt as to both of these defendants or as to either of them, then you will acquit."
Until the decision in Shannon, the correctness of these directions in a joint trial of two alleged conspirators could hardly have been impugned. It accorded with what had come to be regarded as 'an established rule of practice' and the rule had the merit of protecting juries from the snares of metaphysical considerations such as those referred to in the speech of Lord Morris in Shannon. He said, at page 755 B to D of the report, "Though the 'rule', whether it be called a rule of law or of practice, came into existence with the historical background to which...
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