Walton, R. v

In a multi-defendant criminal trial, the jury must consider each defendant and count separately. Where the evidence and the defences make the alleged roles interdependent, a finding of guilt against one defendant may nevertheless be evidence, though never conclusive evidence, against another.

Where a defendant’s earlier silence cannot be used by the prosecution against that defendant, it may still be relevant in a co-defendant’s favour when assessing a cut-throat defence. The jury must be directed clearly as to those different uses. An imperfect direction will not render a conviction unsafe if it is not a misdirection and the evidence of guilt is overwhelming.

The appellant was convicted at Maidstone Crown Court of possessing 15 kilograms of cannabis resin with intent to supply. He alleged that O’Callaghan, a co-defendant, had arranged for him to be set up as a participating informant. O’Callaghan and the appellant each blamed the other.

Before trial, the judge refused to appoint independent counsel for a public-interest-immunity hearing concerning undisclosed material. At trial, the judge directed the jury on the separate consideration of the defendants’ cases and on the limited use which O’Callaghan could make of the appellant’s earlier failure to identify him.

The appellant challenged those rulings and directions, and alternatively challenged his four-year sentence as excessive and disparate.

1. The appeal against conviction was dismissed. The trial judge was entitled to refuse the novel course of appointing independent counsel for the public-interest-immunity hearing. The Court of Appeal had followed the guidance in R v H and C [2003] EWCA Crim 2847. There was no exceptional feature requiring a special advocate, even though counsel was available to act without charge.

2. The jury direction on the relationship between the co-defendants’ cases was not a misdirection. The judge had directed separate consideration of every defendant and count. In the circumstances, a finding that either the appellant or Lysser was guilty could rationally provide evidence, but not conclusive evidence, of the other’s guilt. Their respective cases stood or fell together unless the jury accepted that O’Callaghan had set them up. The judge did not suggest that O’Callaghan’s guilt supported the case against either of them.

3. The direction about the appellant’s failure to identify O’Callaghan could have been clearer. That failure could not be used to support the prosecution case against the appellant. It could, however, be considered in O’Callaghan’s favour when assessing the appellant’s accusation against him. Evidence given by one defendant against another could only be used adversely if the jury was sure it was true, but evidence which might be true could operate in the first defendant’s favour. Although a fuller explanation would have assisted the jury, the direction was not a misdirection and did not make the conviction unsafe.

4. The appeal against sentence was allowed. The differences between the sentences imposed on the co-defendants were justified on the evidence, and the sentencing judge had been entitled to regard the appellant as the senior participant. However, four years’ imprisonment for this quantity of a class B drug was longer than necessary. The sentence was quashed and replaced with three years’ imprisonment.

• Court of Appeal (Criminal Division) [2003] EWCA Crim 3644: dismissed the appeal against conviction; allowed the appeal against sentence and substituted three years’ imprisonment.

• Maidstone Crown Court: convicted the appellant on 22 May 2002 of possession of cannabis resin with intent to supply, and sentenced him on 28 June 2002 to four years’ imprisonment.