King & Ors v R

Under section 78 of the Police and Criminal Evidence Act 1984, a breach of the duty to take an arrested person to a police station as soon as practicable does not create a presumption that covertly obtained evidence is unfair. Fairness depends upon all the circumstances. A covert recording of suspects speaking voluntarily to each other, without questioning, inducement or subterfuge, may therefore be admitted.

Acts or declarations of an alleged co-conspirator are admissible only where the judge is satisfied that they were made by a conspirator in furtherance of the enterprise and there is independent reasonable evidence connecting the accused to it. The judge decides admissibility. The jury should instead receive directions addressing the dangers of hearsay and narrative evidence.

Joseph King and Craig Provan were tried at Canterbury Crown Court for conspiracies to supply heroin and ecstasy. King was also convicted of drug, firearms and criminal-property offences. Provan had pleaded guilty to encouraging or assisting the supply of cannabis.

King challenged, among other matters, the admission of a covertly recorded conversation with a co-accused after arrest, the directions on co-conspirator evidence, character and adverse inferences from silence. Provan challenged the conspiracy direction, the admission of remarks made by the co-accused in his absence, and a lies direction.

The central issues were whether the trial had been rendered unfair by the evidence and directions, and whether the convictions were safe.

1. The appeals against conviction were dismissed. King was granted leave to appeal against conviction, but none of his grounds rendered the verdicts unsafe. His renewed application for leave to appeal against sentence was refused. Provan’s appeal was also dismissed.

2. The trial judge was entitled to find that King had been taken to the police station as soon as practicable under section 30 of the Police and Criminal Evidence Act 1984. In any event, a breach would have been minimal and would not have made admission of the recording unfair under section 78. A deliberate evasion of the statutory duty to create an opportunity for a recording may justify exclusion in an appropriate case. Here, however, the suspects were merely given an opportunity to speak privately. They were not questioned, tricked or induced to respond to their arrests.

3. For co-conspirator acts and declarations, the judge must determine admissibility. The judge must be satisfied that the speaker was a conspirator, that the act or declaration furthered the enterprise, and that there was other reasonable evidence connecting the accused with it. Once admitted, the jury may use the evidence with the other evidence in deciding whether a conspiracy existed and whether the accused joined it. The jury need not repeat the admissibility inquiry, but must be warned against conviction on hearsay narrative alone where the circumstances require it.

4. The directions concerning Newin’s statements adequately identified the need for caution. The disputed statements were capable of furthering the drug-supply conspiracies by maintaining the proposed purchaser’s confidence. There was ample independent circumstantial evidence against each appellant.

5. The judge was entitled to give King the propensity limb, but not the credibility limb, of a good-character direction. His admitted dishonest dealing made a full credibility direction contradictory and potentially confusing. The judge also correctly left a section 34 direction because King’s suggested alternative perpetrators formed part of the factual case advanced at trial.

6. The written route to verdict in Provan’s case could have replicated the conspiracy direction more closely. Read fairly, however, it required the jury to be sure that he intended to play a part in supplying the class A drugs. The lies direction was also proper because his false interview denial risked being used wrongly in relation to the more serious counts unless the jury were cautioned.

• Court of Appeal (Criminal Division) — By [2012] EWCA Crim 805, dismissed King’s and Provan’s appeals against conviction. It refused King leave to appeal against sentence.

• Canterbury Crown Court — Before HHJ Adele Williams, King was convicted of conspiracies to supply heroin and ecstasy, possession of amphetamine with intent to supply, firearms offences and possession of criminal property. Provan was convicted of the two conspiracies and had pleaded guilty to encouraging or assisting the supply of cannabis.