Anthony & Ors, R v

A defendant who later alleges that intimidation prevented them from giving evidence must establish, on the actual circumstances, that the alleged conduct amounted to serious intimidation and could have affected the fairness or outcome of the trial. A properly given adverse-inference direction remains appropriate where the alleged conduct afforded no good reason for refusing to testify.

An appellate court will not interfere with discretionary evidential and trial-management rulings absent an error of law or an improper exercise of discretion. An extension of time for renewed leave to appeal should be refused where the proposed appeal has no arguable merit. Sentences within the available range will not be disturbed merely because they are severe or alleged to be disparate.

Yvonne Anthony appealed against her conviction at Kingston upon Thames Crown Court for conspiracy to evade the prohibition on importing cocaine. She had not given evidence at trial and the judge directed the jury that it could draw an adverse inference under section 35 of the Criminal Justice and Public Order Act 1994.

After conviction, she alleged that threats by co-defendants had caused her not to testify. The court also considered renewed applications, or applications for extensions of time, by several co-defendants concerning conviction and sentence. Their complaints included late admission of telephone evidence, allegedly prejudicial evidence on a withdrawn count, disclosure and investigatory complaints, sentencing disparity, and alleged excess.

The central issue in Yvonne Anthony’s appeal was whether the asserted intimidation rendered the adverse-inference direction unfair or her conviction unsafe.

The appeal was dismissed. All the renewed applications and applications for extensions of time were refused.

1. The court did not need to decide the wider question of principle concerning defendants who claim, after verdict, that intimidation prevented them from giving evidence. On the facts alleged, the note and remark relied upon could not sensibly amount to serious threats or intimidation, even in Yvonne Anthony’s circumstances. They supplied no good reason for her refusal to enter the witness box.

2. Yvonne Anthony had been warned of the consequences of not testifying and had chosen not to disclose any reason at trial. The jury directions were correct and fair. Even if the later account had been known at trial, it would not have affected the propriety of a direction under section 35 of the Criminal Justice and Public Order Act 1994. There was no realistic possibility that the asserted circumstances affected the verdict, so the conviction was safe.

3. The trial judge had acted within her discretion in admitting late telephone evidence and in refusing exclusion under section 78 of the Police and Criminal Evidence Act. The relevant defendants could address the evidence, and there was no error of law or improper exercise of discretion. The judge’s directions concerning defendants’ police interviews, the withdrawn count, and the evidence were adequate and fair.

4. The explanations for the substantial delays in seeking renewed leave were weak. The court nevertheless considered the proposed grounds and found none arguable. It therefore refused the requested extensions.

5. The sentencing judge was entitled to assess the respective roles of the defendants in the substantial cocaine-importation conspiracy. The sentences were severe, but neither manifestly excessive nor objectionably disparate. The renewed sentencing applications therefore failed.

• Court of Appeal (Criminal Division) Dismissed Yvonne Anthony’s appeal against conviction and refused the co-defendants’ renewed applications and applications for extensions of time.
• Kingston upon Thames Crown Court Yvonne Anthony was convicted on 19 July 2006, following a jury trial, of conspiracy to evade the prohibition on the importation of cocaine. She was sentenced to six years’ imprisonment.