Flisher & Ors v R. (Rev 1)

Counts may be joined under Crim PR 14.2(3) where they have a common factual origin. The facts need not be identical or contemporaneous, but a slight or tenuous connection is insufficient.

A joint trial remains appropriate where the defendants are charged with aspects of the same criminal behaviour and any risk of unfair prejudice can be removed by clear directions. An admission under section 10 of the Criminal Justice Act 1967 may bind only the party making it. Anonymous hearsay capable of assisting a defence may nevertheless be admitted in the interests of justice under section 114(1)(d) of the Criminal Justice Act 2003.

In sentencing, totality requires avoidance of double-counting firearms possession both as aggravation of the drug offence and through consecutive firearms sentences.

The four applicants were convicted at Exeter Crown Court of conspiracy to supply cocaine. Eastgate and Flisher also received consecutive sentences for prohibited firearms and ammunition offences. Flisher challenged the joinder of the firearms counts and the refusal to sever his case from that of a co-accused. Procter challenged the handling of a proposed admission concerning another possible drug supplier and the absence of a special warning about a witness.

The court considered whether those matters rendered the convictions unsafe. It also reviewed all four applicants’ sentences for the cocaine conspiracy, including the effect of firearms possession and the principle of totality.

1. The renewed applications to appeal against conviction were refused. The firearms, money-laundering and conspiracy allegations had a common factual origin for the purposes of Crim PR 14.2(3). The connection was not tenuous: the weapons and ammunition were alleged to be tools of the drug-trafficking enterprise and were discovered when police attended the shared home in the course of that investigation. The court followed the approach in Barrell & Wilson [1979] 69 Cr App R 250 and Cox [2001] EWCA Crim 728.

2. Severance was properly refused. Although the co-accused’s evidence of domestic abuse was capable of prejudicing Flisher, it was irrelevant to the conspiracy allegation and the judge gave firm, repeated directions that it was not evidence against him. The jury’s acquittals on other counts showed no basis for supposing that they had misused it.

3. The judge erred in treating the proposed admission about Read/Peacock as unavailable merely because all defendants did not agree. Under section 10(1) of the Criminal Justice Act 1967, an admission may bind only its maker. Further, although section 114(1)(c) of the Criminal Justice Act 2003 was unavailable, anonymous hearsay could have been admitted in the interests of justice under section 114(1)(d). The error did not affect the safety of Procter’s conviction because the proposed admission had no probative value on the uncontradicted evidence identifying him as the user of the relevant telephones.

4. No special warning was required. There was no evidential basis for a risk of self-interest by the witness requiring the exercise of the Makanjuola discretion.

5. The sentence applications succeeded. Possession of prohibited firearms in support of a serious criminal enterprise was aggravating, but totality required the court not to double-count that feature when consecutive firearms sentences were imposed. Applying Aroyewumi [1995] 16 Cr App R (S) 211, the court reduced the conspiracy sentences: Eastgate’s total became 21 years, Flisher’s 19 years, and Procter’s and Leader’s sentences became eight years each. The orders were expressed to be provisional pending notification from an applicant wishing to make further submissions.

• Court of Appeal (Criminal Division) — In [2012] EWCA Crim 794, the court refused the renewed applications to appeal against conviction and granted leave to appeal against sentence, reducing the sentences as stated.
• Exeter Crown Court — HHJ Wassall convicted the applicants of conspiracy to supply cocaine and imposed the original sentences, including consecutive sentences for firearms offences in the cases of Eastgate and Flisher.