Lowe & Ors, R v

A defence statement prepared months after interview and after disclosure is ordinarily an inadmissible previous consistent statement. It does not prevent an appropriately directed jury drawing an adverse inference under section 34 of the Criminal Justice and Public Order Act 1994. In a conspiracy trial, the jury need decide only whether the defendant was party to the alleged agreement. The time, duration and role of participation are sentencing matters. A trial judge may refuse to discharge a jury where any limited potential prejudice can properly be met by directions. Sentences must reflect role and parity. A reduction may be justified where it is required to preserve a proper relationship between co-defendants’ sentences.

Following a twelve-week trial at Liverpool Crown Court, several defendants were convicted of conspiracy to supply heroin and ecstasy. The prosecution alleged an organised operation involving repeated importations of large quantities of drugs from continental Europe, followed by storage and distribution in Liverpool, Bradford and Glasgow.

Lowe, Parkinson and Davey appealed against conviction. Lowe challenged the exclusion of his defence statement and the conspiracy direction. Parkinson and Davey challenged the refusal to discharge the jury and aspects of the summing up. The court also considered sentence appeals and sentence complaints by the defendants. The central questions were whether the convictions were rendered unsafe by the trial rulings or directions, and whether the individual sentences properly reflected culpability and parity.

The appeals against conviction were dismissed. The court allowed the sentence appeals of Jason Smith and Stephen Smith, but dismissed the remaining sentence appeals or complaints.

1. The trial judge was entitled to exclude Lowe’s lengthy defence statement. It was a previous consistent statement, prepared four and a half months after interview and after service of the prosecution material. Although the date or part of a defence statement may sometimes be relevant to an alleged inconsistency or recent invention, there was no proper basis for placing this statement before the jury. Its exclusion did not prevent a properly directed jury from drawing an adverse inference under section 34 of the Criminal Justice and Public Order Act 1994.
2. On the conspiracy count under section 1(1) of the Criminal Law Act 1977, the jury’s task was to decide whether Lowe was a party to the alleged agreement. It was not required to decide his precise role, the date on which he joined, or the duration of his participation. Those matters affected sentence only. The judge’s answer to the jury’s question was therefore correct.
3. The rulings refusing to discharge the jury were a proper exercise of discretion. The judge had directed himself correctly, considered the relevant matters, including their cumulative effect, and was entitled to conclude that any potential prejudice could be cured by clear directions. The identification directions and the treatment of material put in cross-examination disclosed no unfairness.
4. The judge was entitled, for sentencing purposes, to find that Lowe was one of the principal figures in a very substantial conspiracy. A sentence of 24 years was severe but appropriate. The other challenged sentences, including those of Parkinson, Neary, Davey, Ellis and Hillhands, were not wrong in principle or manifestly excessive. There had been no unjustifiable delay attributable to the court or prosecution so as to require a reduction under Article 6(1) of the European Convention.
5. Jason Smith’s 16-year sentence was too high when compared with the roles and sentences of the other defendants. It was quashed and replaced with 13 years’ imprisonment. Stephen Smith’s sentence was reduced from 11 years to 10 years to reflect his proper position relative to the other participants.

• Court of Appeal (Criminal Division): dismissed the conviction appeals of Lowe, Parkinson and Davey. It dismissed the remaining sentence appeals or complaints, but reduced Jason Smith’s sentence from 16 to 13 years and Stephen Smith’s from 11 to 10 years.
• Liverpool Crown Court: following a twelve-week trial, convicted Lowe, Parkinson, Neary, Davey, Ellis and Hillhands of conspiracy to supply controlled drugs contrary to section 1(1) of the Criminal Law Act 1977. Stephen Smith pleaded guilty to that conspiracy. Jason Smith pleaded guilty to possession of class A and class B controlled drugs with intent to supply contrary to section 5(3) of the Misuse of Drugs Act 1971.