No: 200101027 S2 
Neutral Citation Number: [2003] EWCA Crim 1975
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Tuesday, 1st July 2003
B E F O R E:

LORD JUSTICE KEENE 

MR JUSTICE MOSES 
 
MR JUSTICE SIMON 

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R E G I N A 

-v- 

ZOE VIRGINIA MARTINDALE
 
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MR P R TAYLOR appeared on behalf of the APPELLANT
MR N D LICKLEY appeared on behalf of the CROWN
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J U D G M E N T
Tuesday, 1st July 2003
1.	LORD JUSTICE KEENE:  On 22nd November 1996 at Winchester Crown Court before His Honour Judge Tucker QC the appellant was convicted after a four day trial of conspiracy to supply a Class A drug, namely heroin.  She was subsequently sentenced to seven years' imprisonment, from which she was released in 2000.  She applied at the time for leave to appeal against conviction but later effectively abandoned that application.  She had been advised that there were no grounds for leave to appeal against the conviction.  
2.	The matter now comes before this court as the result of a reference to it by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995 and it is therefore to be treated as an appeal (see section 9(2) of that Act).  The Commission, in its statement of reasons for the reference, states that it concluded that a prosecution witness gave untruthful evidence to the trial court and also that there was a material irregularity in respect of the obligations relating to disclosure.
3.	The conspiracy with which the appellant was charged was said by the original indictment to have been with Adrian Paul Payne and James Simon Green between 1st September 1995 and 23rd January 1996.  Green was acquitted at the end of the prosecution case on the direction of the judge and the matter was left to the jury on the basis that the appellant was charged with having conspired with Payne to supply heroin.  The prosecution, however, elected not to try Payne on the conspiracy charge and he was the principal prosecution witness against the appellant.  He did plead guilty to several substantive drugs offences, including a count of being concerned in the supply of heroin to the appellant, and in due course he was sentenced to two years' imprisonment.  He committed suicide in February 2000 while on remand for another offence.
4.	It is Payne who is the prosecution witness identified by the Commission as having given untruthful evidence at the appellant's trial.  
5.	It was not disputed at trial that Payne obtained heroin in London and brought it back to Andover, which was where the appellant lived.  The Crown's case was that he did so pursuant to an agreement with the appellant, who was herself a heroin addict.  It was said that she supplied heroin to him and others but that her local supplies of the drug had dried up and so Payne had agreed with her that he would help by being her courier, carrying supplies of the drug back to her address in King George Road, Andover.  His reward would be in heroin rather than money.
6.	The case for the defence was that there was no agreement between them as alleged and that this was Payne's scheme to get heroin from London, borrowing her car and giving her a bit of heroin as a kindness.
7.	Payne's evidence at the trial was that he had initially been supplied by the appellant and had then moved in to stay at her house.  When they could not get any more heroin in Andover they turned to London for supplies.  He said the first time that he and the appellant went together was in her car and she paid about £500 for 8 grams of heroin which they brought back to Andover.  Subsequently he went by himself at her request every two or three days to buy heroin for her, spending £500 on each occasion.  In all, he went, so he said, about 15 times to London, sometimes by car and sometimes by train, from about September 1995 onwards.  About 20 people a day, according to his evidence, would call to buy heroin with the appellant dealing with the callers.
8.	On 8th January 1996, as Payne and Green were returning to Andover from London with drugs, the car was stopped by the police.  Payne threw away some heroin but it was recovered by the police.  He was arrested, held overnight, interviewed the next day and then released on bail.  On 22nd January of that same year he was arrested again, having returned to Andover by train.  He had about 8 grams of heroin on him, which he threw away but again the police recovered it.  He was again arrested and interviewed.
9.	Under cross-examination he agreed that he had pleaded guilty to possessing heroin on 8th January 1996 with intent to supply, to supplying heroin between September 1995 and January 1996 and to possessing heroin on 22nd January.  He said that he had intended to supply it but was not charged with possession with intent to supply on that occasion.  
10.	He also accepted under cross-examination that the conspiracy charge against him was not being proceeded with and that a burglary charge was, he had been told the previous day, being dropped.  
11.	He said under cross-examination that he was not and never had been a police informant.  He also said that he had never received money from the police for giving them information.  
12.	Now, in many cases one would have expected the judge to have intervened to have prevented such questions being put, or certainly from being answered.  The reason why that did not happen in this case will become clear later in this judgment.
13.	Payne also admitted in cross-examination that he had lied in his interviews with the police.  In the first one, on 9th January 1996, he had lied when he had said that the drugs were solely down to him.  In the second interview, after the 22nd January arrest, he said at trial that he had lied in a number of respects.  He had also been untruthful, he said, in a witness statement which he had given to the police in September 1996.  That statement said that he had made about 80 to 100 trips to London, going virtually every day.  In court he said that he had gone about 15 times, going every two or three days.  He also admitted having previous convictions, though not for drugs offences.
14.	In his summing-up the judge warned the jury that, as an accomplice, Payne might have a motive not to tell the truth in court, and he also warned them to be very slow to act on his evidence.  The judge also told the jury that "the great question" was whether Payne was telling the truth in his evidence to them.
15.	There were other prosecution witnesses.  Apart from two, who the judge said the jury should put out of their minds, they were all police officers.  They dealt principally with what they saw when the police arrived and searched the appellant's house at about 5 pm on 22nd January 1996.  
16.	The appellant was seen in the kitchen, cutting up powder with a razor with two others watching her.  The appellant said that the heroin was hers.  There was also evidence that a number of telephone calls were received while the police were at the house, and on some occasions when this happened the appellant shouted out "I've been busted".  One officer, Sergeant Murphy, gave evidence that the appellant came into the living room, causing a scene and emptying a bag of powder onto the floor.  He said he seized the plastic bag, which contained traces of powder.  He also gave evidence that while he was examining the bag he noticed the appellant emptying another plastic bag.  As she had emptied it completely he left it behind.  Three men in the lounge were arrested and searched.  Although no drugs were found, they all had tin foil with burn marks as if it had been used for smoking heroin.  In the cupboard in the kitchen, said Sergeant Murphy, he had found a number of used and unused syringes, between 20 and 100.  He said that he had never seen so many but that he had not seized them as it was their policy not to seize syringes for safety reasons.  He said that there were two boxes taped up as new and 4 to 6 "sin bins" with contaminated syringes in.  
17.	Another officer, Detective Constable Ware, gave evidence that in a house being used for deals he would expect to find drugs, scales, money and something with a shiny surface so that the heroin could be cut up with a sharp knife or razor.  No scales or money were found at the house, although some drugs, a shiny surface and the razor blade were found.
18.	The appellant gave evidence in her own defence.  She said that she had never given Payne any heroin.  Both of them took heroin but her local suppliers had never run out.  Payne was seeking to push the blame onto her.  He merely borrowed her car, which he did most days, and he would supply her with about a quarter of a gram of heroin four or five times a week.  She denied running a "shooting gallery" from her house.  She said in her evidence that she had only one bag of heroin when the police were there on 22nd January.  The heroin which she was cutting in the kitchen was for her own use.  As for the syringes, she said that she only had about 20 syringes and that, as far as she was aware, only she had used them.  This was not a particularly large number for her to have.  She also said that she had "sin bins" which are given to addicts when they are given their syringes.
19.	The jury clearly did not believe her account and would seem to have accepted Payne's evidence, despite his admitted lies in interview and in his witness statement.
20.	What, however, has emerged since trial and has prompted this reference by the Commission is this.  It became clear that Payne lied in the witness box during the course of his evidence at trial.  Despite what he then said, he had been a registered police informant since 17th September 1996.  His handler was Detective Constable Waite, who was a prosecution witness at trial.  Moreover, Payne had received £50 by way of an expenses payment on 7th October 1996 and had also been recommended for a further £50 payment by DC Waite on 7th November 1996 by a document in which a detective inspector authorised payment as "incentive and expenses payment".  It seems that the second payment was not actually received by Payne because he was subsequently sent to prison.  Nonetheless, he did receive the October payment.  All this is established by documentary evidence, which we give leave to be admitted under section 23 of the Criminal Appeal Act 1968.  
21.	This meant that, unknown to the jury, Payne had lied to them on oath when he gave evidence, first, that he had never been a police informant and, secondly, that he had never received money from the police for giving them information.
22.	None of this information about Payne's status or payments was ever disclosed to the defence.  Indeed, it was never passed on by the relevant police officers to the Crown Prosecution Service, with the result that prosecuting counsel was, we accept, unaware of it.  It appears that this resulted from a policy being operated by the Hampshire Constabulary at the time.  We are given to understand, and accept, that that policy has since changed.  
23.	In any event, the consequence of this was that prosecuting counsel never sought to consider whether this material ought to be disclosed on an application of the usual principles set out in the case of Keane [1994] 99 Cr App R 1; nor did the judge ever have to deal with any public interest immunity application in respect of the disclosure of such information.  There was a PII hearing conducted ex parte on the first day of the trial, but it related to informants who were not witnesses at the trial.  
24.	The judge remained in ignorance of Payne's status and of his lies in the witness box.  When he came to sum up the case to the jury, he reminded them of Payne's denials that he had been an informant and that he had ever been so.  No doubt the judge's understanding that no prosecution witness was an informant was the reason why he did not prevent questions on that topic being put to Payne in the course of cross-examination, a matter on which we remarked earlier in this judgment.
25.	These matters form the basis for the principal grounds of appeal now advanced.  It is submitted that the conviction is unsafe because Payne's credibility was central to the prosecution's case.  Had the jury been aware that he had lied in these two respects at trial, his credibility would have been very significantly undermined.  Mr Taylor, who appears on the appellant's behalf, submits that it is unreal to suggest that the case of conspiracy against the appellant could have been established without Payne's evidence.  Even evidence that she was supplying heroin from her home to others would not have been sufficient to prove the conspiracy, and yet, says Mr Taylor, even that evidence was tenuous.  Particular emphasis is placed on the absence of any scales or money in the house.  The fact that Payne had received payment from the police and was recommended for further payment was clearly relevant, it is said, to his motivation in giving the evidence which he gave and hence his credibility for that reason also.  There is also evidence that Payne lied in cross-examination in saying that he had heard "yesterday", that is to say on 19th November 1996, that the burglary charge against him was being dropped.  Correspondence from the Crown Prosecution Service indicates that he would have been notified of this decision by about the middle of August 1996.  On its true timing, it was an incentive to Payne to give the witness statement which he did to the police, and the jury, emphasises Mr Taylor, remained unaware of that timing.  Consequently, it is submitted Payne's credibility would have been seriously damaged had these matters been known to the jury.
26.	Next, it is submitted that there was a material irregularity at trial because of the non-disclosure of Payne's status and receipt of payment.  This is something which should have been disclosed to the defence, or, at the very least, it should have been the subject of a public interest immunity application to the judge, who almost certainly, says Mr Taylor, would have ordered its disclosure.
27.	There are a number of further matters raised by Mr Taylor which it is unnecessary to set out.
28.	The Crown's position on these aspects of the case to which we have referred is that there clearly were irregularities, and it is conceded by Mr Lickley, on behalf of the Crown, that the jury may have acquitted the appellant if the true position had emerged.  It is accepted that the conviction may be potentially unsafe.  
29.	However, Mr Lickley submits that the jury might still have convicted.  It is stressed in the written arguments submitted by Mr Lickley, which he has adopted in a commendably brief submission to us this morning, that the jury knew that Payne was a self-confessed liar and drug dealer and that he had told a different story in court from that contained in his witness statement.  They knew he had previous convictions and the judge gave a strong warning to the jury about how they should approach his evidence.  Moreover, there was other evidence against the appellant, particularly the evidence of the police officers about what they found when they visited and searched the premises.  
30.	On the other hand, it is conceded on behalf of the Crown that there was material which was not subject to proper scrutiny by prosecuting counsel or the judge which should have been subject to such scrutiny, and that this included material contained in the reports of the police handler of Payne.
31.	For our part, we accept that the jury were aware that Payne had told lies in his interviews by the police and in the witness statement which he had given to the police.  His credibility must already have been somewhat impaired by those facts.  Yet, nonetheless, the jury convicted the appellant.
32.	However, it seems to this court that there is a distinction properly to be drawn between those lies told out of court and lies told to the jury on oath.  The latter, if revealed, are likely to have had a more profound impact on the jury's assessment of a witness' truthfulness than do out of court lies.  The jury may well take the view that if he had lied to them in court on one or more matters, how could they attach weight to his other evidence?  In any event, the lies told in court by Payne about his informant status and the receipt of money would have had to be added to the other evidence of his lying already before the jury, and at some point the cumulative effect of all of this was going to render his evidence of little weight.  
33.	The burglary point, we should say, seems to add relatively little to this case.  The crucial lies were those told in the witness box about status and money.
34.	Moreover, it is entirely clear that the defence were deprived of the opportunity to demonstrate to the jury that Payne was lying on oath because of the failure to disclose this evidence.  
35.	We are bound to say that we find it disturbing that the Hampshire Constabulary at that time was operating a policy which led to the officers concerned in this case failing to inform the Crown Prosecution Service about Payne's true situation.  The result of this was, in our judgment, undoubtedly a material irregularity.  Had a public interest immunity application been made in respect of this evidence, the judge, we believe, would probably have felt it right to order disclosure once he had applied the principles in Keane.  The evidence was clearly relevant to Payne's credibility and should therefore have been disclosed (see the decision in Rasheed Times Law Reports 20th May 1994).  Moreover, looking at the matter realistically, the course of events here meant that the court itself was misled.  If the judge had ordered disclosure, Payne may very well have been reluctant to give evidence and, as Mr Lickley accepted, the case may well have collapsed at that point.  The prosecution itself may well have been reluctant to have his informant status revealed.
36.	As far as the other evidence against the appellant is concerned, even taking it at its face value, it was of limited probative value on the conspiracy charge.  It might or might not have sustained a charge against this appellant of supplying heroin or possession with intent to supply heroin, but the bedrock of the conspiracy charge which she faced was the alleged agreement with Payne.  If his evidence was not believed it would have been difficult to establish such an agreement from the police evidence alone.  There was no forensic evidence linking the heroin found on Payne on either 8th January or 22nd January with that found at the appellant's home.  Moreover, little heroin was actually found at her home and no scales or money was found there.  Without Payne's evidence it could only have been an inference that it was the appellant for whom he was acting as a courier, and in our judgment not an inference that could readily be drawn.
37.	Consequently, the evidence of Payne and hence his credibility was, as the trial judge put it in summing-up, and we quote, "central to the case".  
38.	We bear in mind the approach to be adopted to fresh evidence generally at the appeal stage as set out in the case of Pendleton 2002 1 WLR 72, where the House of Lords emphasised that the Court of Appeal is at the disadvantage that it does not know at what points in their consideration the jury may have had difficulty and is not privy to its deliberations.  Lord Bingham of Cornhill, at paragraph 19 of his speech, stressed that the Court of Appeal:
"... has an imperfect and incomplete understanding of the full processes which led the jury to convict.  The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard.  For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict.  If it might, the conviction must be thought to be unsafe".
39.	This court is satisfied that the evidence to which we have referred, had it emerged at trial and had the trial indeed taken place, might reasonably have affected the jury's decision to convict.  That being so, on these grounds alone we conclude that this conviction must be held to be unsafe.  That being our conclusion on those grounds of appeal, it is unnecessary to deal with the further and, in our view, more subsidiary matters raised in the appellant's grounds.  There was an application to adduce fresh evidence in relation to the syringes found on the premises.  That is an application which we would not have looked favourably upon, but in any event it becomes unnecessary in the light of our judgment to determine it.
40.	For the reasons which we have indicated, this appeal will be allowed and the conviction will be quashed.  
41.	In the circumstances, Mr Lickley, I do not imagine there is any application for a retrial, is there? 
42.	MR LICKLEY:  No.
43.	LORD JUSTICE KEENE:  Thank you all very much.  There is nothing further that we need deal with? 
44.	MR LICKLEY:  My Lord, simply to say perhaps that we apologise for overemphasising the nature of the business.  We did estimate a day.  If it is appropriate to apologise for being much shorter, we do.
45.	LORD JUSTICE KEENE:  I do not think an apology is required in the sense that it is due to your own conciseness, and I mean both of you when I say that, that we have managed to get through this matter in under half a day rather than a whole day.  In any event, from the point of view of the bench, any time out of court that we have to prepare our other work is always welcomed, no doubt is welcome to counsel as well.  
46.	Thank you both very much.