Neutral Citation Number: [2010] EWCA Crim 1206
Case No: 200806531 D2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HARROW CROWN COURT
HER HONOUR JUDGE DANGOR
T 20070185
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 28/05/2010
Before :

LORD JUSTICE HUGHES VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
MR JUSTICE SIMON
and
MRS JUSTICE THIRLWALL DBE
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Between :

	Stephanie Goodman	Appellant	
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	The Queen	Respondent	

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Mr D Waters QC and Mr S Robinson (instructed by Harbord & Co) for the Appellant
Mr S Mather  (instructed by Crown Prosecution Service) for the Crown

Hearing dates : Tuesday 18th May 2010
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Judgment

Lord Justice Hughes : 
1.	This applicant seeks leave to appeal against her conviction for permitting the use of her premises for the cultivation of cannabis.  Her contention is that she was wholly ignorant of the cultivation.  It is inherent in her present case that it must have been done by her husband.  The central point of her notice of appeal is that the solicitors who acted for her at trial should not have done so because they were also acting, or potentially acting, for the husband and there was a conflict of interest.  The effect was, she says, that she was inhibited in putting before the jury her true defence, or at least material in support of it.  Her written grounds of appeal go much further. They assert that the solicitors were dishonestly protecting the interests of the husband at her expense. On her behalf, Mr Waters QC has abandoned the latter suggestion, rightly because there is no basis for it.  But her case remains that there was a social as well as a professional relationship between the solicitor and the husband, and that that distorted her representation and led to the neglect of her interests.  Accordingly, she says that her conviction is unsafe.  
2.	The applicant was a woman in her mid forties. She had no previous convictions.  She was in business on her own account running a slimming clinic.  She also owned a number of houses, some let out.  Her husband is Bharat Lukha, sometimes known as ‘Barry’, who also owned houses which he let out, and who was, by original trade an electrician.  On her own account, they had been a couple since the 1980s, marrying in 2004.  It was and is her case that at the material time in November 2006 they were not living together all of the time.  The matrimonial home at that time was a detached house at Buckland Rise, Pinner, owned by the applicant.  Also living there was Linesh Lukha, the husband’s nephew.  
3.	On 16 November 2006 the police discovered a hydroponic cannabis cultivation plant in a bungalow at 39 Eastern Avenue, Pinner belonging to the applicant.  Much of the bungalow was given over to the cannabis.  There appeared to be no-one living there and given the heat, humidity and smell it would have been difficult for anyone to occupy it as a home.  They had arrested Linesh Lukha that day in a red Alfa Romeo car and some telltale signs of cannabis cultivation were discovered in the car.  The car belonged to the husband.  Documents also found in it led them to the bungalow. 
4.	Having uncovered the cultivation plant, the police went to Buckland Rise.  They encountered the applicant and her husband just driving out together in a blue Transit-type van.  The back of the van contained, amongst electrical apparatus, more cannabis cultivation paraphernalia, such as empty compost bags, growing pots, lampholders and aluminium sheeting.  After a partial search of the house, concentrating principally on the nephew Linesh’s room, the husband Bharat was arrested.  
5.	Five days later on 21 November the police returned to the applicant’s home at Buckland Rise and searched it in her presence.  They found, amongst other things, a small quantity of cannabis in a drawer, a document which appeared to be a tenancy agreement by which she let the bungalow out to two people called Fernandez and Perreira, and, in the applicant’s handbag, an identity card in the name of Fernandez which turned out to be bogus.  The applicant was arrested.  
6.	The applicant asked to be represented by the same firm as her husband, ALH & Co (“ALH”).  The freelance representative of that firm had already attended at the police station a few days earlier for Bharat. He knew that Bharat had, at some stage, said something to the police about the contents of the van having been moved from another van at the request of the applicant, with a view to being thrown out.  Having checked whether the applicant agreed with that, and having found that she did not, he advised her that he could not act.  His reason was a possible conflict of interest;  he filled out a form to that effect. Whether, out of kindness to the applicant, he told her simply that he could not act for both husband and wife, as she said he did, is irrelevant.  Another firm of solicitors attended, spoke to the applicant, and were present when she was interviewed.  She declined, as she was entitled to do, to answer any questions.  
7.	The police indicated that they wished to interview her again.  In the run-up to that, she dispensed with the services of the solicitors who had attended her on 21 November.  After exploring the possible instruction of yet another firm, she opted to instruct ALH.  On 21 December 2006, as is now known, she met the principal of the firm, Mr A and confirmed her instructions to him. From that point on, until after conviction nearly two years later, her solicitors remained ALH.
8.	She then re-attended the police station on 29 December, accompanied by a representative from ALH, not Mr A.  Again she declined to answer questions, but did present the police with a pre-prepared statement.  In it she said that she owned the bungalow, that she had rented it out to Fernandez and Perreira, that she had no idea that drugs were being cultivated there, and that she felt let down by the tenants who had abused her trust.  She said that she had had no occasion to go to the bungalow for rent since Fernandez paid regularly by coming to her home.  She had visited the bungalow on several occasions but only to collect mail and had never gone inside.   If there had been anything connected with drug cultivation in any van belonging to her husband, she was unaware of it.  
9.	The husband, Bharat’s, case was proceeding independently, perhaps owing to his earlier arrest. On 26 February 2007 it was before the magistrates for paper committal to the Crown Court.  After arguments had been addressed by counsel then appearing for him, either in court or to the prosecution representative, the CPS came to the conclusion that they had insufficient evidence to connect him to the cultivation.  We are not privy to the reasoning behind that decision, but the CPS consented before the justices to his being discharged.  That left pending proceedings against Linesh and, following on, against the applicant.  Linesh was represented by separate solicitors.
10.	To anticipate, the prosecution subsequently changed their minds about Bharat and by the end of October 2007 were actively seeking him again in connection with this allegation. They sought him at, amongst other places, Buckland Rise, where the applicant told them twice that he was not there, and at least once that he had stayed the previous night. At some time, maybe about then, he left the United Kingdom and did not return until 4 June 2009, eight months or so after the conviction of the applicant.  
11.	During the summer of 2007, the applicant saw her solicitors on several occasions.  Mr A retained overall supervision of the case, but she was principally dealt with by an assistant solicitor, Ms B.  Counsel who had successfully persuaded the CPS to discontinue the case against Bharat was instructed, at the request of the applicant.  On 18 June 2007 there was a conference with that counsel and, at the end of it, a joint conference with Linesh and his representatives.  
12.	In August 2007 a defence statement was served signed by the applicant.  It signalled the same defence as had her original prepared statement in the police station, namely that the bungalow was let to tenants, that if she visited she was never invited in, and that she had no idea of any cannabis cultivation there.  Of her husband she said that she had no idea that there was anything cannabis-related in any van belonging to him.  All this accorded with two substantial proofs of evidence which we have now been able to see, following waiver of privilege, from the solicitors’ files.  
13.	In due course the applicant and Linesh stood trial.  The first trial had to be aborted, apparently for lack of time, but not before the judge had acceded to a submission that Linesh had no case to answer.  A re-trial of the applicant ensued and she was convicted.  The first trial was in December 2007; the second concluded on 18 September 2008.
14.	The case against the applicant depended on proof of knowledge of what was being done in her bungalow. It was not, of course, an allegation that she had acted alone.  The charge was of permitting the use of the bungalow for the cultivation.  It was enough to show that she knew what was going on. It must be said that the evidence that she did know was powerful.  Its principal components were:
	(i)	she owned the bungalow;
	(ii)	the delivery address for some of the hydroponic equipment was “Stephanie” at her home address;
(iii)	her mobile telephone contained the following message sent by her to her husband at 0825 on 18 November, the day after his interview by the police:
“Barry, I need to know what you have said to the police & what the charge is.  If I’m caught before you get to court, I can’t no comment for ever.  All it will do is make things worse.  You are stupid for not phoning me yesterday ‘cos you big mouth told Morley who told J and now the world knows.  I was covering for you and keeping them all from coming to the police station and keeping them updated so when you were released you could have said anything instead of them finding out.”
(iv)   there was a follow up message two days later saying that he had better speak to her “rather than coming round”.
(v)	she had asserted that she knew the two men said to be tenants, but they had never been found, the neighbours’ evidence and the state of the bungalow suggested that no-one was living there, and Portuguese identity cards found on her or produced later by her were forged;
(vi)	the evidence of the neighbours was that her Jeep was seen at the bungalow quite often, once when its alarm went off and someone had to go to the bungalow and ask the man who came to the door to turn it off; 
(vii)	a man called Dhimar, an estate agent, who had drafted the tenancy agreement, said that he had done it at the request of the applicant;  moreover, although he had originally made a statement assisting her by saying that he had done it well before the police intervention, and that he had met the two tenants, he later revealed that it had been later and apparently after the initial arrest, that he had never seen the men, and that the applicant had subsequently tried to dissuade him from giving this latter account.  
15.	Whatever the obvious strength of this case, the question for this court is not whether the applicant is or is not guilty, but whether her conviction is safe.  If she has been significantly failed by her solicitors, and if as a result her defence was not properly put before the court of trial, which are the allegations, then her conviction is unsafe, at least unless it were clear that a jury could not have been unsure about her guilt.  
16.	Before us, the applicant’s case has been that her defence was that she knew nothing of the cultivation and that it had to be her husband. He was a man of very bad temper who had often given way to violence, sometimes aimed at the house, including driving a car into it, sometimes taking the form of chewing mobile phones, and sometimes aimed directly at her.  Moreover he was serially unfaithful to her.  There appeared at one time to be a suggestion in her written grounds of appeal that she wished to advance the defence of duress.  That however is not so.  Her instructions were always, and still are, that she was unaware of the cultivation, not that she participated in it under duress.  In any event, there would not have been the necessary immediacy of violence and since the cultivation clearly went on for some time, there would have been ample opportunity to go to the police.  But what she does say is that 
a)	she was pressured by Bharat into instructing ALH;
b)	she was in fear of Bharat because of his violence;
c)	Mr A was a close personal friend of Bharat;	and 
d)     she was inhibited by the presence of ALH and their various representatives from advancing what was her true defence, namely that she had no idea of the cultivation, and it must have been Bharat who was responsible for it;  she felt at all times that anything she said would go straight back to Bharat and she would be at risk of violence as a result. 

17.	Perhaps unusually, several of the applicant’s assertions about Bharat and Mr A are supported by Bharat himself, now returned to this country.  The applicant relies upon a witness statement from him which asserts
a)	he was in the USA for three months and then in Spain;
b)	he was advised by Mr A to lie low;
c)	he is a man of considerable violence; his statement details a number of colourful acts directed against property or objects but also says in general terms that he was violent to the applicant;
d)	the applicant was frightened of him and habitually did what he wanted;
e)	whilst abroad he was in constant contact by telephone with Mr A.
18.	The complaints of the applicant were answered in detailed witness statements by Mr A.  In those circumstances we were invited to hear the evidence of the applicant, of Bharat and of Mr A de bene esse in order to determine whether the first two ought to be received by us under section 23 of the Criminal Appeal Act 1968, on the grounds that it is necessary or expedient in the interests of justice to do so.   We heard those three witnesses, and also the applicant’s sister Natalie, on that basis.
19.	Having heard and seen those witnesses over the course of about a day we see no reason to doubt the evidence of Natalie Goodman, nor that of Mr A.  We are unable to avoid saying that we found the evidence of the applicant and Bharat incapable of belief except where it was independently supported.  That leads us to the conclusions which we now set out.
20.	We think that we should make the assumption in favour of the applicant that Bharat is a man of considerable temper.  The assertion that he drove a car into the outer wall of the matrimonial home appears to be supported by photographs of damage.  The general case of a tendency to violence is supported by a domestic violence injunction or restraint order obtained by a girlfriend with whom he appears to have carried on an association whilst ostensibly married to the applicant and still occasionally living at her home.  We saw evidence of an underlying assumption of superiority to the applicant, and perhaps to women generally, and we think that we should proceed, in favour of the applicant, on the basis that this may well be his character.  We are not able to reject the assertion that he used violence on the applicant from time to time over the years.
21.	However, the evidence makes it quite clear that even if their relationship may have been characterised by episodes of violence, the applicant was perfectly capable of making her own decisions, and did so. It was she who chose counsel who appeared for her at both trials.  For the first trial she chose counsel whom she had watched successfully extract Bharat from his committal proceedings.  After deciding during her first trial that she was dissatisfied with that counsel, she suggested various alternatives for the second trial; at one stage she told Ms B that she was not prepared to instruct anyone whom she had not watched at work, although whether in the end she did conduct such a reconnaissance is unclear.  The occurrence of a joint conference with Linesh and his lawyers is unusual, and at first sight might have supported the suggestion that there had been, on the part of ALH, a lack of focused duty to the applicant.  But the documents show very clearly that it was at the applicant’s request that this occurred, and that she obtained, presumably from Linesh, a letter to him from his own solicitors in order to tell ALH who they should get in touch with.  Her object can only have been to take such steps as she could to avoid anything inconsistent with her case emerging from that of Linesh.  That demonstrates that she was fully alive to the possibility of inconsistent cases, and was taking the initiative on the subject.  
22.	Whatever the exact nature of the relationship between the applicant and Bharat, we were quite unable to accept their evidence that her several weekend stopovers with him in Spain during his long absence were simply examples of her unquestioning obedience to his whims.  Nor were her acts in buying a car for him, insuring it and shipping it out to Spain.  Those actions are, however, entirely consistent with her instructions at the time to ALH, sometimes handwritten by herself, to the effect that she and Bharat got on perfectly well, albeit not living together, and that he stayed with her often.  
23.	We did not find capable of belief her evidence that she was persuaded against her inclination to instruct ALH and never had explained to her the position if her case should diverge from Bharat’s.  The contemporaneous attendance note of 21 December 2006, when she first saw Mr A, shows that she reassured him that she and Bharat were no longer saying anything inconsistent about the provenance of the items found by the police in the blue van, and were both simply saying that they had no idea about the cannabis cultivation, which must be the responsibility of the “tenants”.  The note shows clearly that she was advised about conflict of interest and the implications of a “cut-throat defence”.  It was on this very first occasion of speaking to her solicitors that she suggested a joint conference with Linesh, plainly in an effort to avoid such a risk. Further, the text message sent to Bharat even before she was arrested [see paragraph 14(iii) above] is an early and telling example of her acute consciousness of the necessity to co-ordinate evidence.  
24.	It is quite clear that the defence which the applicant wished to advance was based upon her ignorance, and the guilt of the tenants.  That was entirely consistent with what had been Bharat’s position before he left the country and with Linesh’s case.  It may well be that an experienced trial lawyer could see from the outset that blaming the tenants alone was unlikely to survive examination of the delivery documents for the hydroponics equipment [paragraph 14 (ii) above], since the tenants, if they existed, would scarcely have arranged such a delivery. It may well be that she would have been better to explain those documents as she does now, as consistent with Bharat arranging the delivery.  But it is not the function of solicitors or advocates to suggest to defendants a better false case than the one they are advancing; on the contrary, such would be a grave professional offence.  
25.	It is clear that as time went on some of the difficulties inherent in the applicant’s account began to appear, and that at times some enquiry was raised about the position of Bharat – in particular by counsel defending the applicant at the first trial.  But what is also plain is that when such enquiries were made, and even without any prompting, the applicant was not at all inhibited in saying what she wanted to say.  On her own account she told Ms B all about Bharat’s violence to her, including a referral for anger management therapy which she had herself arranged, and including advice to Ms B not to embark upon matrimony herself.  It cannot be true, accordingly, that the applicant was inhibited in saying what she wished by fear that the solicitors were reporting back to Bharat.  When it came to the second trial, the applicant, who had up until then indicated that she wanted to stay out of the witness box, in fact gave evidence.  She did tell counsel about a history of domestic violence complaints to the police and counsel put the suggestion to the officer in the case.  She did tell the jury that Bharat used to hit her, describing herself as a ‘typical victim’.  She did tell the jury that Bharat used her credit card to order goods despite her asking him not to. She did tell the jury that the electrical equipment found in the bungalow could be Bharat’s.  Certainly she said, in answer to a direct question in cross examination, that she was not blaming Bharat for the offence, but that was clearly a matter of choice and in no sense attributable to which firm of solicitors was representing her.  Her own account to us was that she was afraid to criticise Bharat in public, because members of his family were in court and either he or they might harm her.  That is untrue, because she did criticise him in her evidence.  But even if it had been true, it would demonstrate that the decision was hers and nothing to do with who her solicitors were.  The reality is, we are sure, that she chose to stick to the account blaming the tenants, which was the story which both she and Bharat had agreed.  
26.	We reach those conclusions about the evidence of the applicant without yet including two considerations which bear heavily on her credibility.  Firstly, having heard the evidence of Bharat and Mr A we unhesitatingly reject the former’s account that he was an old friend of Mr A, and that they frequented the same parties in the early 1980s, when Mr A would have been about 14-15 and Bharat five years older.  The applicant supported this evidence by asserting that Bharat often spoke from the early 1980s onwards about his friend Mr A.  Not only therefore is Bharat untruthful about this but so is the applicant.  Secondly, at her second trial she sought, in conference with counsel and her solicitors, radically to alter her instructions.  She had, for over a year, accepted that the text message of 18 November had been sent by her. Her explanation, which certainly faced real difficulties, was that it related to her mistaken belief that Bharat had been arrested for driving with excess alcohol, rather than for cannabis cultivation. But during the trial she tried to tell her lawyers that the message was not hers at all.  The result was that the lawyers had to advise her that if she wished to say that they could no longer represent her. She thereupon reverted to her original instructions, confirming as she did so that she wanted them to continue to act.  Her explanation to us, that a solicitor’s clerk had suggested that she change her account, would have been an important part of her complaint about her representation, if true. It was new and wholly unbelievable.  And on her own evidence, she was proposing to go into the witness box and tell a deliberate lie about the most damaging piece of evidence she faced.  That, we cannot avoid saying, reinforces our own view of her credibility.   
27.	As to Bharat, we observe that the applicant’s own description of him to ALH at the outset was that he was “a compulsive liar”.  Whether that is so or not, we did not find his evidence to us capable of belief.  Although it is clear that Mr A continued to treat Bharat as a client even during his long period abroad, the latter greatly exaggerated his connection with him.  His evidence that when the applicant visited him in Spain he did not enquire what she was going to say about him at her trial is wholly unbelievable. In quick succession he said first that he could not remember whether he had told Mr A that he had been violent to the applicant and then that he had told him that he had.  On his own account he must have lied to obtain entry to the USA despite convictions. It was perfectly plain that at a late stage he was ready to give false evidence in an effort to help the applicant.  That extended to asserting that he had ordered her not to go to the bungalow, but did not know why.  
28.	We accept Mr A’s evidence that his relationship with Bharat was not that of longstanding friends since the early 1980s.  We accept his evidence that he was not in more or less constant contact with Bharat by telephone during the latter’s absence abroad.  It is, however, clear that there was occasional contact. Mr A himself visited Spain regularly, as Bharat knew.  On one occasion in 2008, they met at a hotel, it would appear at Bharat’s request.  By then Mr A knew that there was a warrant for Bharat’s arrest in England.  He treated Bharat as a client.  Their discussion included the question whether Bharat would or would not return to the UK and what would or would not ensue if he did.  Bharat’s instructions remained that he knew nothing about the cannabis cultivation plant.  We accept that there was no professional bar to Mr A seeing a client who was wanted by the police.  Mr A ought to have kept a careful note of their conversation, and, if Bharat were agreeable, to have had it signed, but that would have been for the protection of Mr A’s own interests, not because of any conflicting duty to the applicant.  
29.	Mr A’s evidence was that Bharat could have thought of himself as a friend.  There was at one stage a telephone conversation in which Mr A told Bharat that his electrics in Spain were out of commission, the context being Bharat’s trade as an electrician.  Mr A reminded us that a solicitor will often have some social contact with a client, unlike counsel, and we agree.  But we think that Mr A unwisely let himself get too close to Bharat and did not maintain as scrupulously professional a relationship as would, in his own interests, have been sensible. He thus, to an extent exposed himself to the risk of allegations such as are now made.  However, the suggestion of an improper relationship is nowhere near made out, still less is there any indication that the contacts between the two men had any adverse effect on the conduct of the case of the applicant.  The instructions of husband and wife were consistent.  Bharat’s reappearance in England could not have been of any advantage to the applicant so long as his case was that he knew nothing about the cannabis. For the reasons already given, the applicant was not, we are quite sure, inhibited in saying whatever she wished.
30.	After conviction the applicant was advised by counsel that there were no grounds of appeal.  She consulted other solicitors.  In December 2008, Bharat telephoned her family and spoke to her sister.  His message was that she should stick to ALH.  He added that ALH’s file, if seen by other solicitors, could ‘open up a can of worms’.   We assume for the purposes of our decision that he had spoken to Mr A and had learned that the applicant had consulted other solicitors.  Mr A had said that he could not now properly see the applicant, which was of course correct.  The telephone call was, however, the initiative of Bharat.  He wanted contact with the applicant, who was in prison.  He may have wanted to avoid others looking at the file, thinking that to be either in his own interests, or the applicant’s, or both.  But by then the trial was over.  The conversation would be relevant if the file in fact contained indications of a conflict of interest neglected, but it does not.  
31.	For all the reasons which we have set out, we refuse to receive the evidence of the applicant and of Bharat.  The application for leave to appeal against conviction must thus be refused.  The applicant did not pursue her application in relation to sentence, which accordingly we also refuse.