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||Neutral Citation Number:  EWCA Crim 2838
IN THE COURT OF APPEAL
||Royal Courts of Justice
||Friday, 22nd November 2002
B e f o r e :
LORD JUSTICE KEENE
MR JUSTICE FORBES
HIS HONOUR JUDGE RANT CB QC
||R E G I N A
||ALISON LOUISE CAIRNS
||ABDUL QAVAI CHAUDHARY
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MISS S ELLIOTT appeared on behalf of ALISON CAIRNS
MR D SINCLAIR appeared on behalf of SAMINA ZAIDI
MR R SUTTON QC appeared on behalf of ABDUL CHAUDHARY
MR N PASCOE QC appeared on behalf of the Crown
HTML VERSION OF JUDGMENT
Crown Copyright ©
Friday, 22nd October 2002
- LORD JUSTICE KEENE: On 27th July 2000, at Portsmouth Crown Court before HHJ Chubb, after a trial lasting some 2 months, the appellants were each convicted of conspiracy to supply a class A drug, namely heroin.
- On 29th September 2000, in the same court and before the same judge, they were sentenced as follows: the appellant, Alison Cairns, to 7 years' imprisonment; the appellant, Samina Zaidi, to 8 years' imprisonment; and the appellant Abdul Chaudhary to 11 years' imprisonment. They now appeal against conviction by leave of the single judge.
- The applications by Cairns and Zaidi for leave to appeal against sentence have been referred to this court by the single judge and we have allowed an application to be made on behalf of Chaudhary for leave to appeal against sentence out of time to be made.
- Two other defendants on the same indictment were acquitted, Memet Hussain by the jury and Alison Linfield under Section 17 of the Criminal Justice Act 1967 because the Crown offered no evidence against her. Two others had already pleaded guilty to conspiracy to supply heroin, one of those being a man called Barry Cairns, the husband of the appellant, Alison Cairns.
- The Crown's case in essence was that the conspiracy involved the supplying of very large quantities of heroin over a period of months in the second half of 1998 from London to the Portsmouth area. The suppliers at the London end were said to be the appellant Chaudhary, assisted by the appellant, Zaidi. Chaudhary had visited Pakistan a number of times in the relevant period. He and Zaidi, according to the Crown, would transfer the heroin to Barry Cairns, who would travel to London for this purpose several times a week. He would then pass the heroin on to a network of suppliers to distribute.
- The appellant Alison Cairns was alleged to have played an active role in the enterprise, driving her husband to delivery points for drugs, collecting money from sub-dealers and often acting as a doorkeeper at their home when purchasers of drugs called.
- Memet Hussain, who was acquitted, was alleged to have been Barry Cairns' lieutenant in the latter part of the period of the conspiracy.
- The Crown relied upon a certain amount of indirect evidence of the conspiracy. There was observation evidence of the Cairns' home showing a pattern of very many short visits with some 700 callers over a 2 month period. There was evidence of telephone calls over many months between those alleged to have been involved in the conspiracy. The schedule of telephone calls showed a telephone call being made from the appellant Zaidi's home, for example, within a few minutes of the observation officers seeing a person, who Barry Cairns said was Zaidi, transfer drugs to him on 14th December 1998.
- A car which Cairns was driving was then stopped on that same day on the Bow flyover in East London and in the car were found bags containing some 9 ounces of heroin. The defendant, Memet Hussain, was in the car on this occasion.
- There was also evidence of Zaidi and Chaudhary being found at the Cairns' home in Portsmouth on 24th December with Alison Cairns. According to Alison Cairns' evidence at trial she had told Zaidi of her husband's arrest and Zaidi had then offered to supply her with heroin. Alison Cairns also gave evidence of witnessing a deal between her husband and Zaidi in October 1998 at a motel.
- But undoubtedly the principal direct evidence against Chaudhary and Zaidi came from Barry Cairns who gave evidence for the Crown. He referred to having arranged in mid-1998 to meet a man calling himself Hussain, who would supply heroin to him. He said that this man in fact was the appellant Chaudhary. Supplies were duly made with the amounts increasing until the heroin was coming in 9 ounce bars. He, Barry Cairns, would travel to London to pick it up, sometimes with his wife driving, and then bring it back to Portsmouth.
- He described the arrangements for picking it up from Chaudhary and for making payment. About half way through this period dealing with Chaudhary, it was said by Barry Cairns, Chaudhary told him he was going away and he introduced Cairns to Zaidi. Cairns thereafter had the same dealings with Zaidi as he had with Chaudhary. According to Cairns' evidence he would meet Zaidi next to a Stratford public house. He said he dealt with her on some five or six occasions.
- He too described getting heroin from Zaidi in October 1998 at a motel. At one point he also said that Zaidi was a runner for Chaudhary.
- In short Barry Cairns' evidence deeply implicated the appellants Chaudhary and Zaidi in the conspiracy. However, his evidence about his wife and about the defendant Memet Hussain was not to that effect. He testified that Alison Cairns knew that he was dealing but he said that she had not been involved in any drug dealing or handling of drugs. She had not known that he was going to get some heroin on the occasion in October 1998 when he met Zaidi at a motel. As for Memet Hussain, he, according to Barry Cairns, was only in the car on 14th December when it was stopped by the police because he was a friend whom Barry Cairns had asked to come along to keep him company. According to Cairns, Memet Hussain did not know anything about the drugs. Barry Cairns, it should be said, was a drug addict himself with a number of previous convictions and he was also a registered police informant. At trial the defence advanced by Alison Cairns differed remarkably from that advanced by Chaudhary and Zaidi. Alison Cairns' position was that any acts of hers relied on by the Crown against her were done under coercion by her husband.
- She gave evidence that she had been unaware that he had been supplying drugs to others until she witnessed the deal between him and Zaidi in the bathroom of a motel in October 1998. She said she was unable to do anything about her husband's supplying or to resist his demands. He had been violent, she said, to her for years. She denied acting as his lieutenant. She was the mother of his three children and she had to survive within the marriage, as escape was impossible. Her evidence implicated Zaidi and to a degree also Chaudhary.
- Chaudhary's and Zaidi's case was that they had been supplying Barry Cairns not with drugs of any kind but with illegally imported alcohol. Neither had mentioned such importations when interviewed, but both said that this was wholly or in part because they knew it was illegal. Both denied any involvement with drugs. Chaudhary's case, in essence, was that Barry Cairns was framing him so as to improve his position with the authorities.
- The grounds of appeal against conviction raised by the three appellants vary. It is convenient to begin with the one issue raised on behalf of the appellant Chaudhary because that is also raised on behalf of the appellant Zaidi, although she has a further ground, to which we shall come.
- This first ground derives from the fact that the prosecution was clearly not seeking to rely upon the evidence being given by Barry Cairns insofar as it related to his wife and to the defendant, Memet Hussain. It is submitted on behalf of Chaudhary and indeed Zaidi that in those circumstances he could not have been regarded by the prosecution as a witness worthy of belief and therefore he should not have been called by the prosecution.
- At trial an application was made on behalf of Chaudhary to exclude the evidence of Barry Cairns on the basis that the prosecution had not properly exercised its discretion or alternatively that the judge should exercise his discretion under Section 78 of the Police and Criminal Evidence Act 1984, so as to exclude it. We observe in passing that that application was made solely on behalf of Chaudhary. Counsel for Zaidi expressly observed at the time that he was not supporting the application.
- It was opposed not only by the prosecution but also by counsel for Hussain. Since the point is being raised in any event on this appeal on Chaudhary's behalf we have not sought to prevent Mr Sinclair from addressing us on it on behalf of the appellant Zaidi.
- The trial judge in his ruling on this point reviewed a number of the relevant authorities and concluded that the prosecutor had not adopted an incorrect approach to the exercise of his undoubted discretion. In so doing he accepted the submissions put forward on behalf of the Crown that Barry Cairns had evidence to give about Chaudhary and Zaidi, which seemed to be the testimony of a witness worthy of belief, and that his reluctance to incriminate his wife and a friend could be understood by the jury and would not necessarily prevent him from being seen by them as a truthful and reliable witness in respect of Chaudhary and Zaidi.
- The judge also concluded that balancing the interests of both prosecution and defence, including the defendant Hussain, he was of the view that calling Barry Cairns would not have such an adverse effect upon the fairness of the trial that his evidence should be excluded under Section 78.
- Those rulings are now challenged. On behalf of the appellant Chaudhary, Mr Sutton, QC, submits that the Crown cannot adopt an inconsistent approach to its witnesses any more than can any other party in a case. Where a potential witness for the prosecution is shown to be intrinsically unworthy of belief, where the Crown, in effect, acknowledge that he or she is not telling the truth in respect to a material part of the evidence which that witness is expected to give, then the prosecution are unable to present a consistent approach to the witness and must refrain from calling that witness.
- Mr Sutton accepts that, on the authorities, counsel for the prosecution is not required to call a witness whose evidence is unworthy of belief and that the prosecutor is the primary judge of whether a witness is worthy of belief or not.
- But he submits that in the present case it was a Wednesbury unreasonable, that is to say a perverse, exercise of discretion for the prosecution to put Cairns forwards as a witness worthy of belief in respect of Chaudhary and Zaidi but not worthy of belief in respect of Alison Cairns and Hussain.
- It is contended that this amounted to the Crown impeaching the credit of its own witness and reliance is placed on the decision of this court in the case of Pacey (The Times 3rd March 1994), to which we shall return in due course. Mr Sutton argues that the Crown is not entitled to cherry pick the evidence of one of its own witnesses. Either the Crown accepts the credit of its own witness or it must treat him as hostile. That was not done in this case. On this Mr Sinclair for Zaidi adopts Mr Sutton's submissions.
- So far as Section 78 is concerned, Mr Sutton points out that in addition to Barry Cairns' intrinsic unworthiness of belief, for the reason to which we have already referred, there were other substantial grounds for questioning the reliability of his evidence. He was a heroin addict, an admitted supplier of heroin, he had convictions including ones for dishonesty and he was a police informant, whose police handler was the subject of a police inquiry about the disposal of a quantity of heroin.
- In those circumstances the judge should have excluded his evidence under Section 78. Had it done so, Chaudhary's conviction could not be seen as safe since Barry Cairns' evidence was central to the Crown's case against him. Moreover this, says Mr Sutton, also impacts on the Crown's decision to call Barry Cairns as a witness. Their discretion could not have been properly exercised so as to call a witness about whose reliability there were so many obvious question marks. Again this submission is supported by Mr Sinclair on behalf of Zaidi.
- We will take these two arguments in the same order. Such authorities as there are on the prosecution's duty and its discretion as to the witnesses it calls all seem to be ones where the prosecution had decided not to call a witness. In other words, they deal with the circumstances in which the prosecution is or is not obliged to call a witness. They do not deal with the present issues, where it is being contended that the prosecution should not have called a witness.
- Nonetheless those authorities do, in our judgment, provide a valuable starting point. In Russell-Jones  1 Cr App R 538, this court presided over by Kennedy LJ reviewed the authorities and set out a number of principles which are cited in the 2002 edition of Archbold at paragraph 4/275.
- For present purposes they can be briefly summarised and we do no more than that. The prosecution has a discretion as to the witnesses it actually calls at trial. But the discretion is to be exercised in the interests of justice and therefore is subject to the overall control of the court on the usual principles applicable to the exercise of a discretion. If a witness can give direct evidence of primary facts and his evidence is capable of belief, then a proper exercise of the discretion will normally require him to be called by the prosecution.
- However, the prosecution is not required to call a witness whose evidence it regards as unworthy of belief. As Kennedy LJ put it, at page 545b, of that case:
"His evidence cannot help the jury assess the overall picture of the crucial events. Hence it is not unfair that he should not be called."
- Similar principles were approved in the more recent case of R v Brown and Brown  1 Cr App R 112.
- If one moves away from the question of whether the prosecution is obliged to call a witness to that of whether it is entitled to do so, the same overriding criterion of the interests of justice must apply to the exercise of its discretion. If the prosecution took the view that a particular witness could give no evidence on which reliance could be placed, then it would normally not be in the interests of justice for that witness to be called by the prosecution. In Kennedy LJ's words:
"His evidence cannot help the jury,"
because in the prosecution's view his evidence is not capable of belief.
- But it is not uncommon for there to be witnesses whose evidence is regarded by the prosecution as largely, or in part, worthy of belief and reliable but not wholly reliable. There may be good reason for the prosecution arriving at such a judgment. It is a normal human experience that people sometimes tell the truth about certain matters but may not be reliable about others, as the verdicts of juries from time to time suggest. There is no reason why a jury should not regard part of a witness's evidence as true but take the position that they cannot rely upon the whole of that evidence. That not infrequently happens and it seems to have happened in the present case.
- We know of no principle of law or justice which requires the prosecution to regard the whole of a witness's evidence to be reliable before he can be called as a prosecution witness. If it is open to the prosecutor to form the view that part of a witness's evidence is capable of belief, even though the prosecutor does not rely on another part of his evidence, then the prosecutor is entitled to exercise its discretion so as to call that witness. That must be so, since part of the witness's evidence could be of assistance to the jury in performing its task, and it would therefore be contrary to the interests of justice to deprive them of that assistance. The prosecution in such circumstances is not to be prevented from calling such a witness.
- The case of Pacey, relied on on behalf of the appellant Chaudhary, was not concerned with this issue as to which witnesses the prosecution were entitled to call. It was a case where the Crown called a witness to establish a crucial fact, as it saw it, that the knife used in the killing on the ground floor had been kept upstairs and therefore must have been taken by the defendant in order to stab the deceased. The witness, contrary to her pre-trial statement, gave evidence that the knife had in fact been downstairs. This, as the Court of Appeal Criminal Division commented, radically transformed the prosecution case. When prosecution counsel in his final speech started to cast doubt upon the credit of his own witness, he was stopped by the judge on the normal principle that a party is not entitled to attack the credit of its own witness unless it seeks, and is permitted, to treat that witness as hostile. That is a principle which received statutory recognition in the Criminal Procedure Act 1865 (Denman's Act), Section 3.
- But the prosecution is entitled to call other evidence which contradicts part of the evidence of its witness, while still relying on those parts of his evidence which are not to be contradicted: see Article 147 of Stephen's Digest of the Law of Evidence, approved in R v Prefas & Pryce, 86 Cr App R 111. That approach indeed was recognised in Pacey where at page 20 of the transcript the court said this:
"It was not open to the prosecutor to attack her credit. All they could do was to point to inconsistencies, if they existed, between her evidence and other evidence or to point to matters upon which her evidence might be unreliable."
- So it is clear, in our view, that the prosecution may properly call a witness when they rely on one part of his evidence but not on another part. Whether they choose to call such a witness is a matter for their discretion, to be exercised on the principles which we have already set out. But that does not amount to an attack on their own witness's credit.
- In the present case the prosecution identified a rational explanation for not relying on part of Barry Cairns' evidence, namely his relationship with his wife and with his friend Hussain. That explanation did not cast doubt on his evidence about Chaudhary and Zaidi.
- Certainly there were also a number of grounds on which Cairns' reliability generally could be called into question, as Mr Sutton has emphasised. But the prosecution had to make a judgment about his reliability in his evidence against Chaudhary and Zaidi and they had other evidence to support him on that part of his evidence, in the shape of telephone schedules, evidence about the hiring of the car by the appellant Zaidi and so on.
- In the light of that the prosecution was entitled to exercise its discretion, as it did. It was not a perverse or unreasonable exercise of discretion and the judge was right not to interfere with it. Nor was the calling Barry Cairns an abuse of process.
- As for the exercise by the judge of his own discretion under Section 78 of P.A.C.E., this court can see nothing wrong with that. Certainly, as we have indicated, there were a number of grounds on which the credibility generally of Barry Cairns could be attacked by the defence, as undoubtedly happened at trial. There was plenty of material which the defence could put in cross examination of him to seek to undermine that credibility. But that does not mean that his evidence had such an adverse effect on the fairness of the trial that it should have been excluded. That is particularly so when a co-defendant in the shape of Memet Hussain wanted that evidence to go before the jury. The concept of fairness embraces fairness to him as well as fairness to the prosecution and to the other defendants.
- Of course, when such a witness does give evidence, there will usually be a need for careful directions to the jury. In the present case the judge directed the jury that there was a special need for caution in assessing Barry Cairns' evidence. He pointed out that Cairns was an accomplice and that he might be seeking to serve his own interests. Then the judge went on at page 20 of the transcript of the summing up to say this:
"In giving the evidence that he has, is he trying to limit his own involvement? Is he seeking to avoid incriminating those he would wish to protect, such as his family and friends? As a man with 6 years experience in the use and abuse of heroin, is he seeking to shift blame away from the real source of supply onto others who may be innocent, such as Abdul Chaudhary and Samina Zaidi? These are matters you will wish to consider."
- He warned the jury about Cairns' bad character, including his criminal convictions and his admitted lies in the past. He reminded them that Cairns was a police informant who had on occasions been paid for his information, that he was on medication during the trial and that he was a drug addict and dealer. The judge also directed the jury, at page 22 of the transcript, to approach this evidence with care, saying:
"Look carefully at what he says, not only on its own but against the evidence in the case as a whole and if he has or may have a purpose or motive of his own to serve in giving evidence before you, then treat his evidence with caution, but look to see where the truth lies."
- In short the judge gave the jury a strong warning, carefully tailored to the circumstances of the case, exactly as this court suggested in Makanjuola  2 Cr App R 469. In our judgment his directions to the jury about this evidence were both appropriate and adequate, the jury heard about the basic facts casting doubt on Barry Cairns' reliability as a witness and they could make up their minds about that topic.
- It follows that we reject the arguments advanced on this issue on behalf of Chaudhary and Zaidi.
- We turn next to the other ground of appeal against conviction put forward on behalf of the appellant Zaidi. This is that she was denied a fair trial because she was tried on the same indictment as Alison Cairns, who was placed after her on the indictment. Thus evidence hostile to the appellant Zaidi was given after she had given evidence. An application to sever Zaidi from the indictment so that she would be tried separately was rejected by the trial judge. Mr Sinclair contends that this procedure meant that his client was treated unfairly.
- It seems to this court that this is really an argument about severance. The drafting of an indictment, including the order in which a number of defendants are placed, is the responsibility of the Crown which clearly has a discretion as to that order. In the present case the order chosen was Chaudhary, Zaidi, Alison Cairns and then the other two defendants. That order made some sense, since Chaudhary was seen as very near the top of the supply chain with Zaidi as his lieutenant and the other three as involved in more localised distribution of the drugs. The mere fact that a co-defendant later on the indictment might give evidence adverse to Zaidi provides no basis for regarding the Crown's exercise of its discretion in drafting the indictment as improper.
- It therefore becomes, as we say, an issue which really relates to that of severance. So far as the application to sever is concerned, not merely was this a joint offence, which in principle should be tried in a single trial (see in particular the comments in the case of Lake  Cr App R 172) but it was a conspiracy charge. As Devlin J said in Miller  36 Cr App R 169 at 174:
"The cases must be rare in which fellow conspirators can properly in the interests of justice be granted a separate trial."
- We would endorse that comment. As Devlin J pointed out, there is a considerable risk with separate trials in such circumstances and on such a charge that the jurors would each hear a very different account of events from the defendants they were trying with a distinct possibility of a miscarriage of justice.
- Of course the trial court has a discretion to be exercised in the interests of justice. But the fact that one defendant is likely to give evidence adverse to a co-defendant, after that co-defendant has given evidence, will not of itself normally require separate trials: see, amongst the many authorities on this, the case of R v Edwards  Crim LR 756. It is, after all, a feature of trials where cut-throat defences are being run, a common enough experience of the courts. Moreover even where one co-defendant gives evidence after the defendant about whom he is making adverse comments, counsel for the defendant who has already given evidence is still in a position to cross-examine that particular co-defendant, as indeed happened in the present case.
- This court will be slow to interfere with the trial judge's exercise of his discretion on severance. It is only if he has clearly erred in that exercise that this court will, applying the usual principles, intervene. In the present case the judge expressly applied his mind to the appropriate principles of law in his ruling and his decision cannot be regarded as perverse.
- It follows that, in the circumstances and for the reasons which we have given, the appeals against conviction of Chaudhary and Zaidi are dismissed.
- We turn then to the appeal against conviction by Alison Cairns. Two grounds are advanced on her behalf. As we have indicated, her defence was in general terms that she had been coerced by her husband. Thus she put forward at trial a defence of duress and the judge duly directed the jury on that in terms about which no complaint is made. But she also relied on the less usual, but, as the law stands, perfectly proper defence of marital coercion, a defence arising by virtue of Section 47 of the Criminal Justice Act 1925. That provides as follows:
"Any presumption of law that an offence committed by a wife in the presence of her husband is committed under the coercion of the husband is hereby abolished. But on a charge against a wife for any offence other than treason or murder, it shall be a good defence to prove that the offence was committed in the presence of and under the coercion of the husband."
- That section places the burden of proof on the defendant, although only on the balance of probabilities. The defendant wife has to establish two things: first, that the offence was committed in the presence of her husband, and secondly, that it was committed under his coercion.
- It is the judge's direction on that second aspect which is now criticised. It is clear that coercion must be given a broader meaning than duress because otherwise this statutory defence would serve no useful purpose and add nothing, especially since it requires proof of the additional ingredient of the presence of the husband. The leading case on what is meant by coercion in Section 47 is that of R v Shortland  1 Cr App R 116. There this court approved a direction that coercion did not necessarily mean physical force or the threat of physical force, it could be physical or moral, but the wife had to prove that her will was so overborne by the wishes of her husband that she was forced unwillingly to participate in the offence. It was made clear that this was to be distinguished from willing participation out of such feelings as loyalty to the husband.
- In the present case the direction given on the meaning of coercion was this:
"Coercion does not just mean physical force or the threat of physical force. She must show that it is more likely than not that her will was overborne by the wishes of her husband. In other words she was forced to participate."
- It is submitted by Miss Elliott on behalf of this appellant that the use of the word "just", in the phrase "coercion does not just mean physical force" et cetera, was inapposite and may have led the jury to believe that physical force or the threat thereof had to be shown as a minimum before the defence was made out. It is contended that what the judge should have said was that coercion did not necessarily mean physical force or the threat thereof, as was said in Shortland. Since the evidence at trial may have left the jury doubtful as to whether this appellant was subject to any actual violence at her husband's hands during the relevant period, the ambiguity in this direction was potentially fatal to her defence. This, emphasises Miss Elliott, was her crucial defence and it was far from clear that the jury would have convicted her if they had been properly directed.
- On behalf of the Crown on this issue, Mr Pascoe QC submits that the direction was sufficiently clear and in any event the evidence of her involvement in the conspiracy was such that it required considerable evidence to establish coercion, which did not exist. He emphasises that it is more difficult to see marital coercion arising when the acts in question extend over a period of months than when one is dealing with an offence which is constituted by a single incident or act.
- Linked with this argument by this appellant under this ground is one about the burden of proof. To deal with this it is necessary to quote the passage from the summing up immediately before the direction to which we have just referred. It is a passage still concerned with the defence of marital coercion.
"So how should you approach this? Firstly consider have the prosecution made you sure that Mrs Cairns was a party to an agreement to supply heroin? If you were to decide that she agreed to this conspiracy with any of Lee Callory, Samina Zaidi, Abdul C haudhary or Memet Hussain, in the absence of Barry Cairns, then marital coercion does not arise. If however you decide on the balance of probabilities that she entered into an agreement to supply heroin with her husband present and she was aware that there was another person involved then go to the second element, that is, are you satisfied on the balance of probabilities that the offence was committed under the coercion of her husband?"
- Miss Elliott argues that the fourth sentence in that passage may have led the jury to believe that Alison Cairns' involvement in the conspiracy only had to be proved on the balance of probabilities. What the judge was dealing with was the ingredient of her husband's presence. But it could be read and understood by the jury as applying also to her involvement in the conspiracy itself, which would be a misdirection as to the standard of proof required on that.
- We deal with this latter point first. It is not one which we find persuasive. The judge had a moment earlier emphasised the need for the prosecution to make the jury sure that she was a party to the agreement to supply heroin, as the first sentence in the passage just quoted shows. Moreover he had told them that that was indeed the required standard of proof at the outset of his summing up, and just before the passage quoted he had explained that the "more likely than not" test applied to the defence of marital coercion. When the summing up is read as a whole, the directions being given on standard of proof can, in our judgment, be seen to have been sufficiently clear and unambiguous and this no doubt is why the point now being raised was not raised at the end of the summing up, as were a number of other matters.
- We revert therefore to the argument about the misdirection on the meaning of "coercion." It was clearly unfortunate that in an otherwise excellent summing up the judge used the word "just" instead of the word "necessarily," or some equivalent, that would have left the jury in no doubt that something less than physical force or the threat of such force would suffice. There was, moreover, no explicit reference by him to any kind of coercion less than physical force, such as moral force or emotional threats.
- We accept that there was some ambiguity here and an ambiguity of importance, given how vital this defence of marital coercion was to her case. It may only be a difference of one word in the direction but it was capable of leading the jury astray. We regard it as a misdirection.
- The evidence of this appellant's involvement in the conspiracy was powerful but there was also evidence from her and from her husband, which a jury might have regarded as establishing that she was forced to participate unwillingly. We take the point made by Mr Pascoe that her involvement stretched over a period of months but of course, at the same time, her relationship with her husband continued and the possibility of coercion by him throughout that time was also something which was open to the jury on the evidence they had.
- Before arriving at a conclusion on the overall safety of her conviction we shall deal with the other ground advanced on her behalf. It is contended that the learned judge went wrong in a ruling which he gave as to the disclosure of the defence statements, given to the prosecution and the court under the Criminal Procedure and Investigations Act 1996, section 5(5) ("the 1996 Act").
- At trial counsel for Alison Cairns sought disclosure of the defence statements of her co-defendants. The judge ruled against that, observing that section 5(5) only provided for disclosure "to the court and the prosecutor." He consequently took the view that co-defendants were not entitled to such disclosure as between themselves and that he had no power to order it.
- It is now submitted that that ruling was wrong in law. Miss Elliott contends that where there is a conflict or potential conflict between co-defendants, the defence statement of one defendant might reasonably be expected to assist the defence of another defendant, thus bringing it within the secondary disclosure obligation resting on the prosecution under section 7(2)(a) of the 1996 Act. Here anything which might undermine the credibility of Chaudhary or Zaidi would, it is said, have assisted Alison Cairns' case, certainly by that stage in the trial when they were attacking her defence through cross-examination of Barry Cairns.
- Only at this stage did they put forward the story that they had been illegally importing alcohol. If that had not been raised in their defence statements, counsel for Alison Cairns, it is said, would have wished to cross-examine them on that inconsistency and to seek the leave of the court then to comment on that under section 11(3) of the 1996 Act. Reliance is placed on that provision and on a decision of HHJ Robert Taylor, in the Central Criminal Court, in Hillman v Knowles, unreported save in Archbold News, 19th December 2001, where the judge ruled that access should be granted to the defence statements on the court file so as to avoid a breach of Article 6 of the European Convention on Human Rights.
- On behalf of the Crown Mr Pascoe submits that a strict construction of Section 5(5) should be adhered to, as this court held in the case of R v Tibbs  2 Cr App R 309. The requirement to provide a defence statement interferes with an accused person's right to silence and his privilege against self incrimination, and to order disclosure would inflate the interest of one defendant above that of another or others. In any event the Crown contends that disclosure would not have given Alison Cairns any additional advantage in reality in the circumstances of this case.
- We begin with the law on this aspect of the case. On a conventional interpretation of section 7 of the 1996 Act, it might seem that the defence statement given to the prosecutor by one defendant would not come within the definition of "prosecution material" and so would not fall within that section. "Prosecution material" is defined by section 7(3) in the same terms as it is for primary disclosure in section 3(2) as follows:
"For the purposes of this section, prosecution material is material (a) which is in the prosecutor's possession and came into his possession in connection with the case for the prosecution against the accused or ... "
- A normal reading of the word "accused" in section 7(3)(a) would suggest that it refers to the particular accused person to whom disclosure is to be made, not to the accused persons in the case.
- However, Section 11(3) suggests a wider construction. That provision is part of the section setting out various possible consequences if a defendant fails, in some way, in respect of his defence statement. It applies, amongst other things, if an accused puts forward at trial a defence different from any defence set out in his defence statement. In those circumstances Section 11(3) may then have application. Section 11(3) provides:
"Where this section applies
(a) the court or with the leave of the court, any other party may make such comment as appears appropriate;
(b) the court or jury may draw such inferences as appear proper in deciding whether the accused is guilty of the offence concerned."
- We emphasise the reference there in (a) to "any other party," which clearly would include a co-defendant as well as the prosecution. It would seem surprising if the opportunity for a defendant to comment, albeit with the leave of the court, on such an inconsistency were to be dependent on whether the prosecution had chosen to deploy the inconsistency before the jury. That potentially could give rise to serious injustice in some circumstances.
- The reference in the case of Tibbs, at page 315 A-B, to a strict construction is not at odds with a broader interpretation of the prosecution's duty under section 7. The court in Tibbs was accepting that a strict construction of section 5 of the 1996 Act was appropriate, that being a provision dealing with the obligation of an accused person to make disclosure. The same reasoning is not applicable to the construction of the obligation resting on the Crown.
- The case of Tariq  Cr App R 276 has been cited to us and might seem to suggest that disclosure of such statements is not possible. But that was a decision in respect of defence statements served under the Criminal Justice Act 1987, where the court was dealing with the powers of the court itself to order disclosure under that Act. It has, in our judgment, no bearing on the extent of the prosecution's duties of disclosure under the 1996 Act. Our attention has also been drawn to the case of R v Greaney  EWCA Crim 2961, unreported but decided on 18th December, 2001, where there is a brief reference to defence statements. At paragraphs 72 and 73 this court said this:
"72. Then there was a complaint that the appellant did not receive the defence statements.
73. That is an argument which is in our judgment without foundation. The fact is that the statutory requirement is simply that the defence statements should be provided for the prosecution and to the court. There is no requirement that those statements should be passed on thereafter to other defence counsel. Whether or not that might be considered an appropriate procedural course may be for another day."
- That summary of the statutory position on the face of the wording of the Act is right, as far as it goes. But if the prosecutor, having received the defence statements of co-defendants, forms the view that a defence statement of one might reasonably be expected to assist the defence of another defendant, then in those circumstances the obligation under section 7 to make secondary disclosure would cover that defence statement. We emphasise that that does not mean automatic disclosure of defence statements by the Crown in all cases where more than one defendant is being tried. The Crown has to make the usual judgment under section 7(2) of the 1996 Act. But if the terms of that subsection are met, such defence statements should be disclosed, subject of course to any issue as to public interest immunity which may arise.
- We are strengthened in this conclusion about the proper approach to defence statements under section 7(2) by a consideration of the provisions of Article 6 of the European Convention on Human Rights. In particular one notes that Article 6 (3) provides that:
"Everyone charged with a criminal offence has the following minimum rights ...
(b) to have adequate time and facilities for the preparation of his defence."
- In Jaspers v Belgium  27 DR 61, the Commission held that this required the prosecution to disclose any material in its possession which might assist an accused person in exonerating himself. That is not restricted to material acquired by the prosecution in any particular way. This court is under an obligation, as was the trial court, to interpret legislation "so far as it is possible to do so" in a way which is compatible with the Convention Rights: see Section 3(1) of the Human Rights Act 1998. If a breach of an accused's rights under Article 6 is to be avoided, the interpretation of the prosecution's obligations under section 7 of the 1996 Act which we have adopted earlier in this judgment must be applied, and it is for the reasons already indicated clearly possible to adopt such an interpretation.
- In the present case the prosecution, therefore, should have disclosed the defence statements of Chaudhary and Zaidi to this appellant in the fulfilment of the continuing duty to make disclosure. In the event of the prosecution not doing so, the court should have exercised its powers under section 8 of the 1996 Act. Those defence statements were, in our judgment, capable of assisting this appellant's case.
- Is the safety of her conviction cast into doubt by this non-disclosure? It is clear that she was aware, before she gave evidence and before any of her co-defendants gave evidence, that Chaudhary and Zaidi were going to maintain that they had only been illegally importing alcohol. She also knew that this had not been raised in their interviews by the police. So the omission and the inconsistency was there and there was cross-examination on it on her behalf and indeed the judged reminded the jury about that.
- But Miss Elliott makes the point that the interviews of those two co-defendants had taken place a considerable time in the past and of course before they were charged with an offence, so that they were able to maintain at trial that their failure to refer to illegal alcohol importation was because they knew that that was an offence.
- By the time the defence statements had been served not long before trial, the prospect of trial on this very serious drugs charge was looming large and the absence of any reference in those statements to this line of defence would have been more difficult to explain. There is no reference in the defence statement of either of the two co-defendants to such a line of defence. It does seem to us that, had that been known to the defence of Alison Cairns, it would have provided further and potentially significant ammunition for attacking their credibility, thereby assisting her case.
- When we add that to the problems we have already identified caused by the misdirection as to marital coercion, we are persuaded that the conviction of Alison Cairns is unsafe. Her appeal is therefore allowed and her conviction is quashed.
- We turn finally to the applications in respect of sentence. Zaidi applies for leave to appeal against the sentence of 8 years' imprisonment imposed on her and, as we have indicated, we have also allowed Chaudhary to apply for such leave.
- Samina Zaidi is now aged 45. She has four children, the youngest being 12, the oldest 23, and her husband has left her. She has no previous convictions of any relevance.
- On her behalf Mr Sinclair submits that while custody was inevitable in this case the sentence imposed was too long. He also contends that the judge sentenced her on an incorrect basis. The judge sentenced on the basis that she was Chaudhary's lieutenant and a trusted member of the top echelon of this heroin supply organisation. But, says Mr Sinclair, the prosecution evidence, particularly that of Barry Cairns, was that she was merely a "runner" for Chaudhary with whom she was infatuated. She was not in the same league as Chaudhary and should not have been treated as being more than a runner.
- Although it is accepted that this was a serious offence, Mr Sinclair emphasises the good character of this applicant. The sentence has had, we are told, a devastating effect on her family and the eldest child has had to give up his job in order to look after the other children of the family.
- This conspiracy involved a systematic arrangement to supply substantial quantities of heroin to the Portsmouth area over a period of some months. It involved the regular supply of 9 ounce bars of heroin, about a quarter of a kilo in metric terms, sometimes as often as twice a week to that area. In the light of authorities such as R v Clark  13 Cr App R (S) 653 and Smith and Foley  1 Cr App R (S) 32, those at or near the top of the supply chain will merit sentences in double figures in such cases.
- In making his application on behalf of Chaudhary Mr Sutton suggests that the quantity here did not justify an 11 year sentence. We disagree. This prolonged operation sometimes involved half a kilo of heroin a week going into the Portsmouth area. This was a very big operation indeed and those who were at or near the top of the chain deserved a very substantial sentence. In our judgment 11 years was well merited on the authorities. His application is therefore dismissed.
- So far as Zaidi is concerned, it is right that Barry Cairns at one stage in his evidence described her as a "runner" for Chaudhary. But his evidence also established that she was trusted by Chaudhary to take over his role in the supply system when he was away. Cairns described how at those times he would have the same dealings with her as he had with Chaudhary, meeting her on five or six occasions, being supplied with the bars of heroin and making payment. It is quite clear that she was indeed the trusted lieutenant of Chaudhary, acting effectively as his stand-in when that was required, particularly when he was abroad. She did merit a lesser sentence than Chaudhary. But she was high up the chain and the judge was, in our view, entitled to regard her role as he did.
- So far as her mitigation generally is concerned we note, as did the judge, her family responsibilities and the impact that a sentence of this length must have on her family. She is also a person of good character. But such is the gravity of the offence that that can only have a very limited effect on the length of sentence. The charge here was contested so that there is, of course, no discount available for a plea of guilty.
- Unhappily it is a commonplace that the families of those who commit grave offences do suffer as a result. Looking at the matter in its entirety this court is unpersuaded that the sentence of 8 years' imprisonment was in any way excessive. The application for leave to appeal against sentence by Zaidi is therefore dismissed.
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