R v Platten
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller |
| Judgment Date | 15 February 2006 |
| Neutral Citation | [2006] EWCA Crim 140 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 200402102/D4 |
| Date | 15 February 2006 |
[2006] EWCA Crim 140
Lord Justice Waller
Mr Justice Gray and
Mrs Justice Cox
Case No: 200402102/D4
2T20027381
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Worcester Crown Court
His Honour Judge Mott
Royal Courts of Justice
Strand, London, WC2A 2LL
Peter Cooke and Richard Adams (instructed by CPS) for the Respondent
Ian Winter (instructed by Talbots Solicitors) for the Appellant
By count 1 on the indictment with which this appeal is concerned Martin Formby, Stephen Shannon, Mark Harry Nixon and Gayle Annette Formby were charged with conspiring to supply a Class B drug, cannabis. By count 2 of the same indictment, the same four persons, together with Carl Anthony Platten, were charged with conspiring to supply a Class A drug, cocaine.
On the 8 th December 2003 at the Crown Court at Worcester Martin Formby ("Mr Formby") pleaded guilty on re-arraignment to both counts. Mark Nixon pleaded guilty to conspiring to supply, count 1, the cannabis count. He pleaded not guilty to count 2, the cocaine count. Gayle Formby pleaded not guilty to count 1 and count Stephen Shannon pleaded guilty to count 1, the cannabis count, and to count 3, supplying a Class B drug amphetamine, but pleaded not guilty to count 2, the cocaine count.
There was thus a trial, which commenced on the 7 th January 2004, at which the issues were (1) whether Stephen Shannon was guilty on count 2, the cocaine count; (2) whether Mark Nixon was guilty on count 2, the cocaine count; (3) whether Gayle Formby was guilty on either count 1 and/or count2; and finally (4) whether Carl Platten was guilty on Count 2, the cocaine count.
The pleas of guilty entered prior to the commencement of the trial were, without protest from those representing the defendants on trial, put in evidence before the jury. To add to those pleas, on 22 nd January 2004, half-way through the trial, Stephen Shannon changed his plea to Count 2 and pleaded guilty to that Count.
In the result, following the trial Carl Platten was convicted by a majority of conspiring to supply a Class A drug, cocaine, on count 2. Mark Nixon was convicted of conspiring to supply a Class A drug, count 2. Gayle Formby was convicted of conspiring to supply a Class B drug (cannabis), count 1, and of conspiring to supply a Class A drug (cocaine), count 2.
Mr Formby was sentenced to ten years imprisonment on count 1 and fourteen years' imprisonment on count 2, those sentences to run concurrently. Shannon was sentenced to ten years' imprisonment on count 1 and sixteen years' imprisonment on count 2, together with five years' imprisonment on count 3, the sentences to run concurrently. Mark Nixon was sentenced to nine years' imprisonment on count 1 and thirteen years' imprisonment on count 2, the sentences to run concurrently. Gayle Formby was sentenced to four years' imprisonment on count 1 and seven years' imprisonment on count 2, the sentences to run concurrently. Carl Platten was sentenced to nine years' imprisonment.
Platten applied for leave to appeal against conviction on three grounds. The single judge refused permission on grounds one and two but referred ground three to the full count, suggesting that certain witness statement should be obtained and further suggesting that PII material could be considered by the full court after such statements had been provided.
The single judge refused Mr Formby permission to appeal against sentence and refused Shannon permission to appeal against sentence.
Platten renewed his application for permission to appeal the grounds on which the single judge refused permission and Mr Formby and Shannon have renewed their applications for leave to appeal against sentence. We will deal with Platten's appeal against conviction first.
So far as Platten is concerned, he has been represented by Mr Winter, who in fact appeared for Nixon at the trial. Statements were obtained, as indicated by the single judge, and we reviewed the PII material in the light of those statements and with the assistance of Mr Cooke of the prosecution. That review was carried out ex parte. There were also statements in rebuttal on behalf of the prosecution, which were placed before us. It is unnecessary to enter into any detailed consideration of ground 3 because having informed Mr Winter that our review of the PII material had produced no evidence of any kind which supported ground 3, he wisely did not press it.
Much less straightforward is the argument presented by Mr Winter in relation to grounds 1 and 2. These raise once again the complex and difficult area as to the admissibility of what might otherwise be hearsay evidence in the context of a conspiracy. We thought it right to grant Platten permission to appeal conviction on grounds 1 and 2 and it is those grounds with which this aspect of the judgment deals.
The Facts
The case was concerned with two conspiracies. The first conspiracy related to the importation of cannabis and that essentially took place, on the Crown's case, over a period of a year between February and December 2002. The second conspiracy related to a conspiracy to import cocaine and that conspiracy seems to have been formulated and carried out in the second half of 2002.
The essence of the conspiracy relating to cannabis was that the conspirators used industrial heating units. On eleven occasions between January and August 2002 a company owned by Nixon, called David Mann Transport, assisted with the transportation of heating units, pallets and crates. On each occasion the items were shipped abroad and then returned to the United Kingdom. Each time they were returned to the United Kingdom by lorry they contained large amounts of cannabis. Between February and December 2002 Mr Formby was under police surveillance. On some occasions when the heating units were returned to the United Kingdom Mr Formby was seen to unload the lorries into a lock-up in Belvedere. The conspiracy to import cannabis came to an end on the 7 th August 2002, when a lorry was intercepted by HM Customs at Coquelles and was found to contain 987 gms of cannabis resin concealed within the heaters which were being transported.
Between July and November 2002 covert recording devices were placed in Mr Formby's car and boot. A number of conversations between Mr Formby and his wife, and Mr Formby and others, and a number of telephone conversations were recorded. It seems that Mr Formby was desperate for money and so had been behind the second conspiracy to import cocaine from Holland as it would yield a high profit. Instead of importing the drugs on a dedicated lorry as had been done so far as the cannabis was concerned, Mr Formby decided to place the cocaine in a heater but "on groupage", which meant it would simply join other loads.
During the course of a conversation with his wife on the 20 th July 2002, Mr Formby was heard to say that Shannon had suggested to him that they start using "Moley's system". 'Moley' was the applicant Platten's nickname and Mr Formby had known Platten for a considerable time. There is no dispute that Mr Formby did arrange, through Nixon, for the shipment to be transported from Amsterdam by Danzas, the company where Platten (or Moley) worked. The shipment was to be received in the Danzas office in Coventry. It had false consignee details and a false address, the invoices indicating that the consignee was a company called Elfin International. There is no dispute that Platten tracked the consignment for Mr Formby and that it arrived on the 18 th December 2002. When it arrived it contained the cocaine.
It was the prosecution case that Platten was working at Danzas as an insider. He, according to the prosecution, was providing information upon the system before the cargo was delivered, was keeping an eye on the cargo and reporting its whereabouts during transit, and arranging for the cargo to be brought out of the depot.
The defence case, so far as Platten was concerned, was that although he did not dispute there was a conspiracy to supply cocaine, he was not a party to that conspiracy. He worked at Danzas as a Road Star agent, which involved the routing and tracking of cargo for customers, and the tracking that he did of this consignment was simply done in the ordinary course of his business and without any knowledge as to what the shipment contained.
The issue for the jury so far as Platten was concerned was whether he was a party to the conspiracy or not. At the same time of course the jury were considering whether Gayle Formby was a party to the conspiracy to supply Class B drugs, and/or the conspiracy to import the cocaine. They were further considering whether Stephen Shannon and Mark Nixon were parties to the conspiracy to supply the Class A drug cocaine, although once Shannon had pleaded guilty during the trial that issue was withdrawn from them.
The first ground of appeal on behalf of Platten contains various elements; (1) that the trial judge wrongly directed the jury that inadmissible conversations between alleged co-conspirators and between those co-conspirators and others, to which the appellant was not a party, were evidence against the appellant, both of the stage that the conspiracy had reached and as evidence that the appellant was a party to that conspiracy. (2) that the learned judge wrongly failed to exclude certain of those conversations from the evidence the jury heard; (3) that the learned judge wrongly directed the jury that there was evidence other than those conversations upon which they could safely conclude that...
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