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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Tyrell & Ors, R v [2004] EWCA Crim 3279 (21 December 2004) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2004/3279.html Cite as: [2004] EWCA Crim 3279

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		21 December 2004

Lord Justice Kennedy:

Reasons for judgment
1. On 12^th February 2002 in the Crown Court at Snaresbrook Michael Tyrell, Didier Le Brun, Robert Kavanagh and Laurent Pencheff were all convicted of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a class A controlled drug, namely cocaine. Herman Henao had pleaded guilty to the same offence, and in due course each of the defendants was sentenced to a substantial term of imprisonment, namely Tyrell 26 years, Le Brun 18 years, Kavanagh 24 years, Pencheff 18 years and Henao 13 years.
2. There were two other defendants named on the indictment, Julie Paterson and Frederick Fillingham. The first jury was unable to reach a verdict in relation to those two defendants, so they were re-tried at the same Crown Court, and on 17^th December 2002 they were convicted. Paterson was then sentenced to 24 years imprisonment, and Fillingham to 18 years.
3. Tyrell, Le Brun, Pencheff, Paterson and Fillingham have all sought the leave of this court to appeal against conviction, the first three of them after refusal by the single judge. The applications for leave to appeal of Paterson and Fillingham have been referred by the single judge to this court.
4. Tyrell, Kavanagh, Pencheff and Paterson have also renewed their applications for leave to appeal against sentence after refusal by the single judge, and in the case of Kavanagh his application related not only to the sentence of imprisonment imposed upon him, but also to the confiscation order which was made in his case. At the end of the hearing before us we granted Paterson leave to appeal against sentence and decided that appeal. We also granted Kavanagh leave to appeal against the amount of the confiscation order made in his case, and decided that appeal. All other applications were dismissed, and we said then that we would give our reasons in writing.

Facts.

5. In the early hours of 23^rd October 2000 a yacht named "Blue Hen" approached the south coast of the Isle of Wight. It was carrying sacks of cocaine weighing in total 396 kilos, or 272 kilos at 100% purity. Had it ever reached the streets its value would have been in excess of £35 million. The vessel had sailed across the Atlantic from the Caribbean with Le Brun, Pencheff and Henao as its crew, and it approached Woody Bay and Orchard Bay, which was immediately below Orchard Bay House, which had been purchased by Tyrell in November 1999 for £657,000. Tyrell was normally resident in Antigua, but on 23^rd October 2000 he was on the shore waiting to receive the yacht's cargo. It was the case for the prosecution that the other applicants to whom we have referred were with him. The cargo was unloaded and twelve of the 20 sacks were loaded into a white van which was then intercepted by law enforcement officers as it attempted to leave Orchard Bay House with Tyrell at the wheel. There were a large number of officers in the vicinity, and the other applicants were arrested at the House, on the vessel or in the adjacent area, Pencheff after a lapse of a couple of days.
6. The Blue Hen had been purchased in the Caribbean in April/May 2000, and it was the prosecution case that the events of 23^rd October 2000 were the culmination of a carefully planned operation lasting many months and involving a good deal of movement backwards and forwards across the Atlantic by those involved.

Defences.

7. For present purposes we need give only an outline summary of the defence of each of those who have sought leave to appeal against conviction.
8. Tyrell accepted that he was knowingly involved in the illegal importation, and that he had done what he could be shown to have done, but he claimed (for the first time in a Defence Case Statement served just before the start of the trial) that he had acted under duress having been threatened with harm to his mother and three daughters by men in the Caribbean and by their associates in England, including in particular "Andy the Greek" to whom he had been introduced by Tony Calder, "uncle", and two men named Eduardo and Fernando who were sent from the Caribbean to threaten him. That was all developed by Tyrell when he gave evidence on his own behalf, but the Defence case Statement of 3^rd September 2001 is worth quoting in full. It read-

"At all material times the Defendant was acting under duress.

The principle sources of this duress were as follows:

(1) A Columbian who visited Antigua, known to the Defendant as Angelo Gomez, and his associates.

(2) A well connected major Antiguan criminal.

(3) A man known only to the Defendant as 'Nephew' or 'Andy the Greek'. This man met the Defendant two or three times a month from January 2000. he supplied mobile phones, other equipment and money to the Defendant. He supervised the Defendant's activities and ensured that the Defendant did as he was instructed. He and his associates were effectively the English end of the duress.

'Nephew' is approximately thirty years of age, 5ft 9inches tall, well built, with dark, neat hair, olive complexion and with an East London accent.

The Defendant believes 'Nephew' has connections with 14 & 25 High Street, Walthamstow. The Defendant spoke to Nephew on 0208 509 3509 on two occasions between late January and early February 2000. The Defendant once travelled to 25 High Street and observed Nephew at these premises.

The Defendant was regularly given mobile phones to contact 'Nephew' exclusively on. These phones were to be used to call 'Nephew' on phones that were used exclusively for contact with the Defendant.

From 19^th June 2000 to 1^st September 2000 the phone given to the Defendant to call 'Nephew' had the number 07730 113612 and the number the Defendant was instructed to call 'Nephew' on was 07718 621617.

From 1^st September 2000 to 20^th September 2000 the phone given to the Defendant to call 'Nephew' had the number 07720 477754 and the number the Defendant was instructed to call 'Nephew' on was 07720 477710

As a result of enquiries the Defendant now believes that 'Nephew' is actually Andreas Neocleous.

(4) The link between the men mentioned in paragraphs (2) and (3) above was a man whose real name is Tony Calder who may have been aware of the duress exerted upon the Defendant in Antigua and in England."

9. Le Brun said that he had been recruited by Fillingham and forced to co-operate by a variety of threats. He was sent to Spain and then to London to meet a man named Marco, and after the purchase of the Blue Hen he worked on it with Fillingham, Pencheff and others, but always under pressure. He confided in his girl friend Josie Longo, who eventually contacted a US marshal and the Drugs Enforcement Agency. When they sailed he thought the cargo might be cannabis.
10. Pencheff had also worked on the refurbishment of the Blue Hen, but claimed that Fillingham and Le Brun were in charge and that he did not know why it had been purchased. He claimed only to have been on board when the vessel sailed because of the pressure put on him and to have believed that the drugs were cannabis or possibly weapons which were being taken to France. He claimed to be in fear of Tyrell, and when cross-examined was asked to explain why it was only in a second Defence Case Statement that he raised the issue of duress. He said that was attributable to his original lawyers having only an imperfect command of French.
11. Paterson had lived in Antigua for many years and had a relationship with Tyrell, but it had come to an end by October 2002. She had been involved in many of the preparations both for the voyage and for the landing of cocaine, but she offered innocent explanations for what she had done and said all her actions were in ignorance of any importation. For example, she had hired the van to collect antiques, but then Tyrell had asked to borrow it. She claimed not to have been with the shore party when the vessel arrived, but to have been asleep in a caravan until woken by Fillingham to say that Tyrell was in trouble. She then got up and went to the gazebo where they were arrested.
12. Fillingham claimed never to have realised that anything was going on connected with the importation of drugs. He denied putting pressure on Le Brun or Tyrell or giving any orders to anyone. Tyrell had told him that he was chartering a boat to convey valuable museum pieces stolen from Venezuela, and it was only when he was asked to help with the dinghy on the night of the importation that he realised that what was being imported was not museum pieces but cocaine. He then told Tyrell he wanted nothing to do with it, and went to Paterson who was shocked. He was with her in the gazebo when they were arrested.

Applications for disclosure.

13. As soon as the Defence Case Statement was served on behalf of Tyrell prosecuting counsel, Miss Ayling, and her junior Miss Pople, gave further consideration to the issue of disclosure.
14. On 5^th September 2001 there was served on behalf of the Crown a typed document which under the heading "knowledge of, inquiries into and investigations of 'Andy' or any one directly connected with Andy" gave details in relation to a number of men named Andrew, including someone known as "Andy the Greek". The document also dealt with (1) those known to be called Andreas Neocleous and Angelo Gomez, those known to be connected with 14 and 25 High Street, Walthamstow and (2) certain telephone numbers listed in the Defence Case Statement. Finally the Crown admitted knowledge of a man known as Tony Calder, whose criminal record was disclosed.
15. Thereafter, on many occasions during the course of the first trial and to a lesser extent during the second trial there followed -

(1) Ex parte hearings in relation to Public Interest Immunity matters and -

(2) Inter partes hearings when counsel of one or more defendants sought further disclosure.

Having regard to a complaint made at a later stage we should say at once that-

(1) We have read the transcripts of all of the hearings to which we have just referred, and -

(2) We are satisfied that no hearing took place of which the defence was unaware, although on a number of occasions the representatives of the defendants were not allowed to be present.

After the first trial.

16. After the first trial, and in the light of the evidence given by Fillingham at that trial, statements were obtained by the prosecution from a number of officers who had been in the Orchard Bay area early on 23^rd October 2000. The purpose of obtaining those statements was to cast doubt on Fillingham's assertion that he had left the scene as he alleged.

Grounds of Appeal.

17. Tyrell's grounds of appeal, as drafted by his counsel, can be summarised as follows -

(1) The judge failed to require of the prosecution such disclosure as was necessary in the interests of justice in relation to Andy the Greek, uncle, and Tony Calder:

(2) The prosecution should not have been permitted to assert, particularly in cross-examination, that all that Andy did was to supply mobile phones and night vision equipment, and that it was wrong for the judge to suggest that the defence could have called Andy themselves.

(3) The judge failed to remind the jury of the evidence which could support Tyrell's assertion that two men named Fernando and Eduardo were at Orchard Bay when the drugs were landed, and -

(4) Recordings of conversation between Fillingham and Paterson used at the second trial should have been disclosed to those defending Tyrell in the first trial to enable them to rebut the assertion of Fillingham and Paterson in that trial that they had been fooled by Tyrell into participating in the crime.

Tyrell also submitted direct to the court a synthesis of a book which he says that he is writing, and we have considered that document.

18. Le Brun originally put forward three grounds of appeal, only the second of which was pursued before us. The other two were abandoned. The second ground of appeal complained that the judge erred in allowing the trial to go on in circumstances where the prosecution failed to call five witnesses who had been required by those acting for Le Brun to attend to give evidence in person.
19. Before us Mr Gledhill for Le Brun also relied, and indeed primarily relied on the impact of the evidence used against Fillingham in his second trial, including in particular -

(1) The evidence of officers who had not seen Fillingham move along the route he claimed to have used after the drugs were landed, and -

(2) Documents sent by Fillingham to Pencheff during the course of the first trial.

This is evidence which, it is submitted, would have assisted the jury in the first trial to assess Fillingham as unreliable and controlling, and such an assessment would have assisted Le Brun in his defence.

20. Mr French for Pencheff relied first on the absence of observation evidence adduced by the prosecution at the second trial. If that had been available it would have assisted his client in two ways -

(1) By providing material with which to cross-examine Fillingham, and

(2) By providing some support for his contention that he had not been onto the road where he would have encountered signs and markings which would have made it clear to him that he was not in France but in England.

The second ground of appeal advanced by Mr French was related to the use which was made of the differences between his Defence Case Statements. In an attempt to explain those differences evidence was called which, the judge held, led to a loss of legal professional privilege. That, Mr French submitted, should not have happened, and the difficulties which ensued were not, he submitted, adequately addressed in the summing-up.

21. Paterson originally put forward four grounds of appeal. The third and fourth grounds of appeal were not referred to this court by the single judge, and so far as ground four is concerned we consider that Mr Sturman QC for Paterson was right not to seek to revive it. Ground three, he submitted, formed part of ground 2, and both grounds 1 and 2 echo complaints made by others. In ground 1 complaint is made of the adequacy of disclosure, particularly prior to and during the first trial. Ground 2 relates to the restricted ability of the defence to explore what happened at the briefings of officers for the night of the 23^rd October 2000 and the differences as between officers as to the appearance of any woman alleged to have been seen at Orchard Bay.
22. Fillingham, represented by Mr Courtenay Griffiths QC, pursued only his second ground of appeal, which related to alleged non-disclosure of information as to what was being planned in the Caribbean, which might, it was submitted have assisted Fillingham by showing that the initial plan when the Blue Hen was purchased was to sail direct to Europe from Florida, or that Tyrell originally planned to use another vessel. That would have assisted Fillingham's defence that he arrived off the Isle of Wight in an innocent state of mind.

PII hearings before us and below.

23. Before we embarked on the hearing of this matter inter partes we heard evidence and considered written material ex parte with the assistance of Mr Michael Worsley QC for the Crown. The written material included, as we have already said, the transcripts of all ex parte and inter partes PII hearings at the two trials. In the result we were satisfied that, taking fully into account the grounds of appeal as well as the issues canvassed at the two trials, nothing further needed to be disclosed for the purposes of the appeal. We kept that decision under review during the hearing of the appeal, and never saw any reason to alter it.

PUBLIC INTEREST IMMUNITY

24. Paragraphs 25 to 30 inclusive of these reasons for judgment deal with matters relating to public interest immunity. They form part of the judgment but because of their content the full copy of the judgment containing those paragraphs can only be made available to the Crown and to the Court itself. It should however be made available to the Court should there be any proceedings before any other court arising out of our decision.

Paragraphs 25 to 30. See paragraph 24.

25. The legal principles to be applied when considering whether or not to order disclosure are clearly set out in the Criminal Procedure and Investigations Act 1996, and by this court in Keane [1994] 99 Cr App R 1 and Turner [1995] 2 Cr App R 94, especially in the passage at 97 which was approved by the House of Lords in R v H [2004] 2 WLR 335, and which reads -

"Defences that the accused has been set up and allegations of duress, which used to at one time to be rare, have multiplied. We wish to alert judges to the need to scrutinise applications for disclosure of details about informants with very great care. They will need to be astute to see that assertions of a need to know such details, because they are essential to the running of the defence, are justified. If they are not so justified, then the judge will need to adopt a robust approach in declining to order disclosure. Clearly there is a distinction between cases in which the circumstances raise no reasonable possibility that information about the informant will bear upon the issues and cases where it will. Again there will be cases where the informant is an informant and no more; other cases where he may have participated in the events constituting, surrounding or following the crime. Even when the informant has participated, the judge will need to consider whether his role so impinges on an issue of interest to the defence, present or potential, as to make disclosure necessary."

As Mr Worsley submitted, the obligation of the Crown was to consider whether there was any material in the hands of the prosecution which might undermine the case for the prosecution against the accused, or might reasonably be expected to assist the disclosed defence. In addition the Crown had to consider whether there was any material which might be relevant to an issue which might feature in the trial.

26. In this case the need for disclosure was considered many times as the case progressed in relation to a variety of issues as they arose. We are satisfied that on each occasion the need for disclosure, or further disclosure, was carefully considered by prosecuting counsel and by the trial judge, who reached decisions with which this court has no reason to interfere.

Our Conclusions in relation to the Grounds of Appeal.

27. The general conclusion which we have just expressed deals with the substance of many grounds of appeal. In the light of that conclusion we return to the grounds of appeal advanced by each applicant, and summarised in paragraphs 17 - 22 above.
28. Starting with Tyrell, it follows from what we have already said that in his case the decisions of the trial judge in relation to disclosure cannot be impugned, nor can there be any criticism of the way in which he was cross-examined, save that, as the jury must have appreciated, it was not realistic to expect Tyrell to call Andy the Greek for the defence. The only evidence to support the assertion of Tyrell that Fernando and Eduardo were at Orchard Bay came from what was said by one or more of the officers on duty about how many people there were in the shore party. The jury heard that evidence, and the judge was under no obligation to return to it.
29. As to the possibility that the intercepted conversations between Fillingham and Paterson which were adduced in the second trial could have assisted Tyrell in the first trial to rebut their assertion that they had only become involved because they were deceived by him, that seems to us to be such a tangential issue that it was unlikely ever to have occurred to anyone acting for the prosecution as giving rise to disclosable information. Furthermore, either with or without Fillingham and Paterson the case against Tyrell was overwhelming.
30. Le Brun's complaint about the non-attendance of witnesses from abroad whom the prosecution could not compel to attend is plainly unsustainable, and we are equally unimpressed by his complaint about the absence of negative observation evidence from officers who were called at the second trial. The notebooks of officers were disclosed, their presence was known to Le Brun's advisers, and if those advisers had wanted either before or during the course of the first trial to get further information from the prosecution or from the officers themselves about what those officers did or did not see it was always open to them to do so.
31. Turning to the notes sent by Fillingham to Pencheff, they were not revealed until after the end of the first trial, and although they do cast some light on Fillingham they do not in reality in any way undermine the prosecution case against Le Brun.
32. Pencheff's complaint about lack of negative observation evidence at the first trial is in essence the same as the complaint made by Le Brun save that Mr French is able to contend for Pencheff that such evidence would have been even more valuable to his client. The answer to the complaint is the same. As to the difference between Pencheff's Defence Case Statements those differences were stark, and plainly called for an explanation which those acting for Pencheff sought to provide. That was dealt with in two passages in the summing-up, and we are satisfied that when those passages are read together the directions given to the jury cannot be criticised.
33. Paterson's grounds of appeal largely echo complaints in relation to disclosure to which we have already referred, but complaint is also made of restrictions allegedly placed upon the defence when they tried to explore what happened at briefings of officers on 23^rd October 2000. That was only because one officer who said that he believed that there were nine people present in Orchard Bay was asked by counsel for Fillingham whether the outstanding three or four were from HMCE or were paid informants. Further exploration of that topic was barred, but the defence lawyers were reminded that they could if they chose apply under section 8 of the 1996 Act for disclosure on the basis that the material was relevant to the defence case. No such application was made, but it is clear that despite the initial ruling officers were asked without objection whether target photographs were provided, what they remembered about the length of hair of any female they observed, and so forth. In our judgment, bearing in mind that it was only at the second trial that Paterson was convicted, it is impossible to see how the defence of Paterson was improperly handicapped by the ruling to which we have just referred.
34. Fillingham too was only convicted at the end of the second trial, and having considered his grounds of appeal when dealing with all matters relevant to Public Interest Immunity we are satisfied that there is no substance in those grounds.
35. We have not attempted in this judgment to deal with every point made to us, still less to explore every facet of each ground of appeal, but we have said enough to indicate that the separate grounds of appeal have been anxiously considered even though it might reasonably be said that against each applicant the prosecution was able to put forward a very powerful case. In our judgment there is nothing in any ground of appeal which should cause us to give leave to appeal against conviction and that is why we concluded that the referred and renewed applications for leave to appeal against conviction must all be dismissed.

Sentence.

36. On behalf of Tyrell Mr Jennings QC submitted that the judge was wrong to treat him as the organiser. For Kavanagh Mr McGuire submitted that his role was exaggerated, and that there was no evidential basis on which to conclude that he sourced the drugs in South America. For Pencheff Mr French submitted that he was simply a cabin boy or watch-keeper who should not have received the same sentence as Fillingham, and who has now ongoing problems with his health. So far as those three applicants are concerned we see no reason to conclude that the trial judge, who heard this case over a long period, has erred in any way. We take broadly the same approach in relation to Paterson, who had an important managing role. Her motivation may well have been love for Tyrell rather than monetary gain, but she was a key player. However, her conditions of incarceration have been unusually severe, and largely because of that Mr Sturman was able to persuade us that the gap between her sentence and that of Tyrell should have been a little greater than ordered by the trial judge. We therefore granted her leave to appeal against sentence, allowed her appeal, and reduced the sentence in her case to 22 years.
37. Kavanagh sought leave to appeal against a confiscation order of £379,995 of which £300,000 related to the judge's assessment of his life style. Miss Ayling conceded that the Crown had never presented its case on that basis, and she did not seek to sustain that part of the judge's order. We therefore gave leave to appeal against the order, set aside the sum ordered to be paid by the judge and ordered payment of £79,995 within 12 months with a period of imprisonment in default. Except as indicated in the case of Paterson and in the case of Kavanagh the renewed applications for leave to appeal against sentence were therefore dismissed.