ON APPEAL FROM:
BLACKFRIARS CROWN COURT
HHJ SULLIVAN
T20250675
NORWICH CROWN COURT
HHJ SHAW
T20170499
NORWICH CROWN COURT
MR RECORDER AYERS
T20207364 & T20217074
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE CAVANAGH
and
HER HONOUR JUDGE NORTON
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BMJ |
Applicant |
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- and - |
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REX |
Respondent |
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Mr James Marsland (instructed by Crown Prosecution Service Appeals and Review Unit) for the Respondent
Hearing date: 23 May 2025
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Crown Copyright ©
Lord Justice Jeremy Baker:
Introduction
Count 1 – 2 ½ years' imprisonment
Count 2 – 1 month concurrent imprisonment
Count 3 – 6 months' concurrent imprisonment
Count 1 – 9 months' imprisonment
Bail Act offence – 14 days' concurrent imprisonment
Count 3 – no separate penalty
Count 4 – 5 years' imprisonment
Count 5 – 5 years' concurrent imprisonment
Driving while disqualified – 3 months' concurrent imprisonment
Driving without insurance – no separate penalty
i. An application for an extension of time (approximately 8 years) in which to appeal against conviction and sentence in respect of the 1st set of offences, counts 1 and 3 only.
ii. An application for an extension of time (approximately 5 years) in which to appeal against sentence in respect of the 2nd set of offences, count 1 only.
iii. An application for an extension of time (approximately 2 years) in which to appeal against conviction and sentence in respect of the 3rd set of offences, counts 4 and 5 only.
Chronology
i. In 2004 and 2005, the applicant was convicted of offences of attempted robbery, in respect of which he was made the subject of community orders.
ii. On 18 October 2006, the applicant committed an offence of theft, for which he was sentenced to serve a period of 2 months in a young offender institution.
iii. On 9 June 2008, the applicant was made the subject of a suspended sentence order in respect of five offences of supplying a controlled drug of Class A, cocaine and heroin.
iv. On 21 August 2015, the applicant was fined in respect of two offences of possession of a controlled drug of Class A, MDMA, and Class B, cannabis.
"Having heard evidence from the defendant, I have formed the view that his role was significant. He was motivated by financial or other advantage, namely, to pay for the drugs that he himself was addicted to and consuming at that time. Although I accept that he was supplying to repay a debt, I do not consider his function was as limited as he claims because he was trusted with a considerable amount of drugs in bulk form and had a large amount of money on his person when arrested. I will take into account the pressure, coercion or intimidation that he was under to repay his debt and reduce the starting point accordingly, but that does not reduce his offending to the category of lesser role, as I hope that makes clear the basis upon which I intend to proceed to sentence."
"It is accepted that this is a Category 3 offence. That is Count 1. I have ruled that I consider that your role is a significant one because you were motivated by financial or other advantage, in other words, to pay for drugs that you yourself were addicted to at the time. I have accepted that you were supplying to repay a debt, but I have indicated that I do not consider your function to be a limited one because you were trusted with a considerable amount of drugs in bulk form and also had a large amount of money on you when you were arrested. However, I have indicated that I will take into account in sentencing that you were under pressure, coercion or intimidation to repay your debt and will accordingly reduce the starting point, albeit I have indicated in the ruling I have already given, that this does not place you into the lesser role category. Therefore, I am taking as a starting point for Count 1 three and a half years rather than the starting point of four and a half years. In relation to the money laundering, that is I think subsumed within these offences, although it would probably fall in the relevant guidelines into Category 6B."
SCA positive conclusive grounds decision
"You have further stated that in 2014 [sic] you were acting in a role similar to a personal assistant of [X], and that whilst you deny any involvement in the dealing of drugs at this point, you were found with a county lines phone attached to the [B] network in the car you were driving. Whilst it is unclear if you were supplying drugs on this occasion, you had previously held drugs for [X] and claim that he was running the county line. You state you were driving him about and therefore it can be considered that you were still involved with the county line. For this, you were not paid. It is therefore considered that you meet part 'C' as you were exploited into forced criminality and under threat of menace of penalty."
Applicant's witness statement dated 28 November 2023
McCook statements
"It should be observed that it was sometimes challenging to obtain instructions from [the applicant] on the evidence when attempts were made to go into further detail. [The applicant] was advised that it was very important we obtain detailed instructions from him as to the elements of the evidence as, if he wished to advance a substantive defence at a contested trial, the fact we would not be able to adduce evidence from the NRM before a jury would mean that our chances of successfully advancing a defence would be bolstered by presenting as strong and detailed an account as possible…"
"The overarching evidential position in terms of telephone evidence at this stage suggested, contrary to his instructions, that there was both evidence of attribution of the "[B]" phone to [the applicant] and that [the applicant] had carried out journeys relevant to the operation of the "[B]" line while that individual was not present, addressing...whether his partner….had tried to contact [the applicant] on the "[B]" phone when she had been unable to reach him on his personal mobile…the nexus between VOT [victim of trafficking] status and the offending behaviour alleged."
Grounds of appeal against conviction
Discussion
"112. The degree to which the prosecution complied with CPS guidance in identifying the applicant as a VOT will be relevant, in that it affects the standard of scrutiny which the court can apply. Unless it is argued that the guidance is in some way inadequate, it should normally be assumed that the contemporaneous guidance will have taken account of all the guidance offered by the relevant authorities with responsibilities in the context of Convention obligations. Therefore, when assessing compliance with article 26, the guidance can provide the starting point and, in the overwhelming majority of cases, the finishing point for that assessment (see R v N/L at [86(b)]).
113. The authorities emphasise that the decision to prosecute is ultimately for the prosecution, and not the court. Where the prosecution has applied its mind to the relevant questions in accordance with the applicable CPS guidance, it will not generally be an abuse of process to prosecute unless the decision to do so is "clearly flawed" (see AGM at [12] and R v BYA [2022] EWCA Crim 1326 at [20]). The court does not intervene merely because it disagrees with the ultimate decision to prosecute: see AAD at [119]. However, if CPS guidance has been disregarded, such that the question of whether to prosecute has not been properly considered (or considered at all), the court can intervene more readily: see AGM at [13] and [56]. It will then be open to the court to consider the public interest question without trespassing on ground which has been appropriately considered by the prosecution authorities."
"36. In this case the exercise involves reviewing the respondent's decision to oppose these applications on the basis of its retrospective review of the evidence and assessment of the public interest in prosecution of the applicant whom they now know and accept to be a VOT.
37. The context for that review is the important general principle that decisions to prosecute are ordinarily for the prosecutor (see for example R (Barons Pub Company Limited) [2013] EWHC 898 (Admin) at [51(i)]). As was stated in AFU at [113] and [117], the decision to prosecute is ultimately for the prosecution, and not the court. Where the prosecution has applied its mind to the relevant questions in accordance with the applicable CPS guidance, it will not generally be an abuse of process to prosecute unless the decision to do so is clearly flawed. The court does not intervene merely because it disagrees with the ultimate decision to prosecute. It will review the decision by reference to rationality and procedural fairness.
38. Although on the present facts we are considering retrospective, hypothetical statements by the respondent as to whether the prosecutions would have been pursued, those statements are still to be accorded appropriate deference. We are satisfied that they have been made only after full, fair and careful consideration by the respondent.
39. There are undoubtedly cases where, even where an applicant has been identified post-conviction as a VOT and vulnerable, the decision to prosecute would have been the same – see for example R v A [2020] EWCA Crim 1408 at [68].
40. The gravity of the offending is clearly a material factor. So much is clear from the Code for Crown Prosecutors in place at the material time for the purpose of addressing the public interest stage of the prosecutorial decision-making process. It required prosecutors to consider each of the following questions (in what was a non-exhaustive list):
i) How serious is the offence committed?
ii) What is the level of culpability of the suspect?
iii) What are the circumstances of and the harm caused to the victim?
iv) Was the suspect under the age of 18 at the time of the offence?
v) What is the impact on the community?
vi) Is prosecution a proportionate response?
vii) Do sources of information require protecting?"
"….This question can be formulated indistinguishably in one of two ways which emerge from the authorities: was this a case where either: (1) the dominant force of compulsion, in the context of a very serious offence, was sufficient to reduce the applicant's criminality or culpability to or below a point where it was not in the public interest for her to be prosecuted? Or (2) the applicant would or might well not have been prosecuted in the public interest? If yes, then the proper course would be to quash the conviction…."
"Prosecutors should consider all the circumstances of the case, including the seriousness of the offence and any direct or indirect compulsion arising from their trafficking situation; see R v LM & Ors [2010] EWCA Crim 2327."
Conclusion
Grounds of appeal against sentence
Discussion
Conclusion