Godber & Anor, R v

Severance in a joint criminal trial is exceptional. The trial judge must exercise a discretion that balances the public interest in a joint trial against any real unfairness or embarrassment to a defendant. Competing defences and potentially prejudicial evidence will not ordinarily require severance where firm and careful directions can address the risk.

A single previous conviction may be admissible under Criminal Justice Act 2003, section 101(1)(d), where its circumstances make it relevant to an issue. Evidence properly admitted through a bad-character gateway is available for all purposes. A prosecution is not abusive merely because it does not adduce a disclosed transcript which the defence could deploy but which carries a real risk of opening the way to inculpatory evidence.

Godber and Roberts appealed against convictions at the Crown Court sitting at Winchester for being concerned in the fraudulent evasion of the prohibition on importing class A drugs. They had been convicted in their absence and each received 20 years’ imprisonment. The prosecution alleged their involvement in the importation of cocaine concealed in a fruit consignment from Costa Rica.

The appeals challenged the refusal to sever their trial from that of co-defendants, the admission of each appellant’s previous drug conviction under Criminal Justice Act 2003, section 101(1)(d), and the fairness of the prosecution’s decision not to adduce alternative transcriptions of covert recordings. The court granted Roberts an extension of time and leave to appeal, then determined whether any ground rendered the convictions unsafe.

Appeals dismissed. The court granted leave to appeal to both appellants and granted Roberts an extension of time, but rejected each ground of challenge.

1. On severance, the judge had applied the correct approach in Miah [2011] EWCA Crim 945. Severance requires exceptional circumstances and remains a discretionary decision. A multi-handed conspiracy trial commonly involves competing interests and evidence introduced by one defendant which may be unwelcome to another. The defences of duress advanced by Wilson and of an unnecessary middleman advanced by Flisher did not create exceptional prejudice to Godber, or indirectly to Roberts. The trial judge’s directions were not open to criticism.

2. The previous convictions were properly admitted under section 101(1)(d) of the Criminal Justice Act 2003. Godber’s conviction concerned a substantial quantity of cannabis and was relatively recent. Roberts’s conviction, although older, involved drug transportation. The court accepted that a single conviction can be admissible in an appropriate case, especially where it has unusual features. The convictions were at least as relevant to an issue in the case as to propensity. Once evidence has properly passed a gateway for admission, it is available for all purposes.

3. The non-use of the enhanced Hersen transcription did not make the proceedings an abuse of process. The prosecution had disclosed the material and elected not to rely on any version. The appellants chose not to waive privilege so that their former legal teams could explain the forensic decision not to deploy the enhanced version. Reliance on it carried the realistic risk that the Crown would seek to adduce inculpatory material from the earlier transcriptions. The appellants could rationally regard the exclusion of all the transcriptions as advantageous. No abuse was established.

• Court of Appeal (Criminal Division) — granted leave to appeal to both appellants, granted Roberts an extension of time, and dismissed the appeals against conviction.
• Crown Court sitting at Winchester — on 29 September 2011, convicted Godber and Roberts unanimously in their absence of being concerned in the fraudulent evasion of a prohibition on the importation of class A drugs; on 30 September 2011, sentenced each to 20 years’ imprisonment.