R v Hoare (Kevin); R v Pierce (Graham)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Auld |
| Judgment Date | 02 April 2004 |
| Neutral Citation | [2004] EWCA Crim 784 |
| Date | 02 April 2004 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case Nos: 2003/02271-C3 |
[2004] EWCA Crim 784
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEWES
HIS HONOUR JUDGE ANTHONY
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Auld
Mr Justice Forbes And
His Honour Judge Tilling
Case Nos: 2003/02271-C3
2003/02499-C3
Miss Christine Laing (instructed by CPS Sussex) for the Prosecution
Michael Oliver (instructed by Kaim Todner) for the appellant, Hoare
Christopher Bertham (instructed by Amphlett Lissimore) for the appellant, Pierce
On 10 th March 2004 this Court dismissed the appeals of Kevin Hoare and Graham Pierce against their convictions and sentences on 19 th March 2003 before His Honour Judge Anthony and a jury in the Crown Court at Lewes, in the case of Hoare, of producing a class B drug, amphetamine, and in the case of Hoare and Pierce, of conspiring together to supply such a drug. The Court now gives its reasons for dismissing those appeals.
The Judge sentenced Hoare to a total of 12 years imprisonment, made up of concurrent sentences of 12 and 10 years, for the production offence and the conspiracy to supply respectively, and Pierce to 10 years for the conspiracy to supply.
Both men appealed against conviction by leave of the single Judge, and both renewed their applications for leave to appeal against sentence following refusals by the single Judge. On 10 th March 2004 the Court refused those applications and gave its reasons for doing so.
The facts
The case concerned the large-scale manufacture of amphetamine sulphate by Hoare over a four year period from 1998 to 2002 and the supply of it by Hoare and Pierce over a two year period from 2000 to 2002.
The prosecution case and evidence on the production offence alleged against Hoare were, in summary, as follows. He lived in a large and secluded farm – part of which was a former oast house – in Hurst Green in Sussex. He controlled a company called Dixon Scientific Wilkinson Ltd. in Beckenham in Kent. The company manufactured glass-ware and other equipment for scientific and technical use, and also bought chemicals for selling on to others. Over the four years covered by the production charge, he purchased vast quantities of various chemicals allegedly for use in that business. The prosecution case was that he and others, not including Pierce, used a makeshift laboratory in a barn at the farm to produce amphetamine sulphate from the chemicals that he had bought ostensibly for his company. We should interpolate that those others were jointly charged with Hoare for their knowing involvement in the production of the amphetamine and prosecuted in the same trial, but were acquitted of any such involvement.
The amount of chemicals found by the police in the barn after the arrest of Hoare and Pierce in July 2002 was sufficient to produce about 33 kilograms of high grade amphetamine sulphate, which, cut to typical street purity of between 5 and 10%, would have produced between 330 to 660 kilograms for sale on the street. The police also found there over 800 grams of pure amphetamine. There was also evidence that, over the four year production period charged, the chemicals purchased by Hoare and delivered to the barn indicated a yield of about 300 kilograms of high grade amphetamine sulphate, which, when cut to street level purity, would have produced between 2 and 6 tonnes of amphetamine. At street level prices, such a vast quantity would have produced over the period a figure of up to £20m.
For six weeks from the end of May 2002 to the arrests of Hoare and Pierce on 18 th July officers of the National Crime Squad kept them and the others involved in the operation in the barn under close surveillance. It was clear from that surveillance that Hoare was involved in the manufacture of some substance in the barn, using the chemicals he was purchasing ostensibly for the legitimate purposes of his company. One of his major suppliers of chemicals was a firm called R & L Slaughter in Upminster, Essex. There was also evidence of a good deal of coming and going by Pierce, indicating his close involvement with Hoare in the distribution of the finished product and of deliveries by Hoare of boxes to Pierce's home in Streatham.
The whole dishonest venture came to an end on 18 th July 2002 when the watching officers saw Hoare drive in a van to Pierce's house in Streatham, where Pierce greeted him. Hoare took a box from the van, and followed Pierce into the house with it. Within a minute or so the two men returned to the van, this time with some empty boxes, which Hoare put in the van. Hoare then drove off, followed by some of the watching officers.
Some officers remained behind for the purpose of executing a search warrant at Pierce's house, which they did very shortly after Hoare had left. They found the box that Hoare had just brought, and in it enough amphetamine, when cut to street purity, to yield between 10 and 21 kilograms, with a potential street value of between £65,000 and £200,000. On arrest, or just before arrest, Pierce said to them that it was obvious from their arrival five minutes after the box had been delivered that it was "a fit-up". (Pierce was to say in evidence at trial that he wrongly jumped to the conclusion at the time that Hoare must have been working for the police.) Subsequently, the police found traces of amphetamine in Pierce's car.
In the meantime the other officers had stopped Hoare as he was driving along Streatham High Street and had arrested and cautioned him. They took him to Streatham police station. On arrival there, they found the four empty boxes in the van, which when later examined, showed traces of amphetamine. At the police station Hoare volunteered to one of the officers:
. "As you go towards the house, the oast is on the right and there is an agricultural barn straight ahead. Everything you want is in there …, the boys [a reference to his sons] don't know anything. If it's locked the key is under a large rock."
Later that day the police took both men back to Sussex, and, on the following day at Eastbourne police station, officers interviewed, or attempted to interview, each of them under caution and in the presence of a solicitor. In the case of Hoare, his solicitor said at the start of the interview that, as it was not clear what evidence the police had to suggest he had committed an offence, the caution they had administered to him might mislead. He implied that he had advised him not to answer any questions. In the case of Pierce, his solicitor said at the start of the interview that he considered too long a period had elapsed following Pierce's arrest without charge. He maintained that Pierce's continued detention and the proposed interview were, therefore, unlawful, and he had therefore advised him not answer any questions. Each appellant declined to answer any question, save that Pierce said he did not know what had been in the box that Hoare had delivered to him just before his arrest, and he believed he was being held unlawfully because he had been detained too long without charge.
The trial
The main issue at trial was, not so much what the two appellants had been observed doing, but whether they knew or believed that the end product of the manufacture was amphetamine or, as Hoare was to maintain for the first time at trial, a chemical for use in cancer research.
At trial, in addition to the considerable evidence of police observations of the activities of Hoare in connection with the ordering of chemicals and the production of the drug and of Hoare and Pierce in its supply, the prosecution sought to put evidence before the jury of the no-comment interviews. Mr Christopher Bertham, counsel for Pierce, objected to the jury hearing evidence of his interview on the point taken by his solicitor at the beginning of it, namely that he was being unlawfully detained. The basis of the objection was that, as a result of that unlawful detention, Pierce was induced to say "no comment" in response to each question partly, if not wholly, because of his solicitor's advice, and that since a "no comment" interview was capable of being a confession within the provisions of the Police and Criminal Evidence Act 1984, it was inadmissible because it had been induced by his unlawful detention. The Judge rejected that submission on the ground that the detention was not unlawful and that, therefore, the factual basis for the objection had not been made out.
Prosecuting counsel, Miss Christine Laing, then put the evidence of both appellants' interviews before the jury, doing so in summary form, in accordance with the guidance of Stuart-Smith LJ, giving the judgment of this Court in R v. Condron & Condron [1997] 1 Cr App R 185, at 195F-196B in relation to drawing any adverse inference from silence under section 34 of the Criminal Justice and Public Order Act 1994. Neither Mr Michael Oliver, on behalf of Hoare, nor Mr Bertham objected to that course and neither in cross-examination of the interviewing officer asked him to give any more detail of the questions or queried the relevance of any of them so as to suggest that they had not been directed to discovering whether or by whom the offences under investigation had been committed, and were, on that account, not such as to prompt an explanation at that stage under the provisions of section 34(1).
As the nature and form of this evidence is central to determination of the first ground of appeal, we should indicate what it amounted to. Dealing first with the interviews of Hoare, Miss Laing asked...
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