England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Friday 14th July 2000

1. THE VICE PRESIDENT: On 5th August 1999 at Maidstone Crown Court this appellant (as he has become during the hearing of this application) was convicted on count 2 in the indictment of possessing heroin with intent to supply and on count 3, possessing cocaine with intent to supply. He was acquitted on count 1, which charged possessing 'Ecstasy' with intent to supply. At an earlier stage he had pleaded guilty to count 4 in the indictment which alleged simple possession of all three drugs to which we have referred.
2. He was sentenced by His Honour Judge Balston to 5 years' imprisonment concurrently on counts 2 and 3, and 2 years' imprisonment concurrently on count 4. He was also ordered to serve the whole 1,670 days of an unexpired term of an 11 year sentence which had been imposed in 1993. That part of the sentence was illegal in that the judge ordered that it should be served consecutively to the 5 year term which he was imposing, an order which was contrary to the terms of section 40(4)(b) of the Criminal Justice Act 1991.
3. The Single Judge having refused leave to appeal against conviction and referred the sentence application to the Full Court, the Full Court, differently constituted, on 22nd May 2000, refused leave to appeal against conviction, adjourned the application in relation to sentence and gave certain directions as to the application hearing on the sentence, including that the prosecution should be represented. The prosecution today have, pursuant to that direction, been represented by Mr Wurtzel, who appeared at the Crown Court and for whose written and oral submissions today we are grateful.
4. The facts were that, on 5th January 1999, police officers went to Gainsborough, Rochester, where they stopped the appellant as he was about to get into a motorcar. They searched him, went with him to his flat and searched his flat. Beneath the kitchen sink they found a black sun glasses case. It contained 23 'Ecstasy' tablets, of what was said to be a maximum street value of £184, 23.37 grammes of cocaine, divided into three quantities, each wrapped in cling film, one containing a little over 16 grammes, one a little over 3 grammes and the third a little under 3 grammes. The street value of the cocaine was said to be a maximum of £2,200.
5. The officers also found just over 42.5 grammes of heroin of which just over 2.5 grammes was packed in three cling film wraps, each a little under a gramme in weight, and each in turn subdivided into 10 cling film wraps of about one-tenth of a gramme in weight. The maximum street value of the heroin was said to be £3,400.
6. The appellant was arrested and interviewed. He admitted possession of the drugs but claimed they were for his personal consumption. He said he had bought over 56 grammes of heroin, 42 grammes of cocaine and 30 'Ecstasy' tablets from friends, two weeks earlier, for £1600, which he had not yet paid. He said that these drugs amounted to a month's supply for him. He made certain claims in relation to his consumption of heroin and cocaine, though he made no similar claim in relation to 'Ecstasy'.
7. It is apparent from their verdict that the jury did not accept his explanations in relation to the heroin and cocaine. He claimed to have been receiving unemployment benefit and earnings as a disc jockey and mobile hairdresser. There was evidence from a Detective Constable about the expected wholesale costs of the drugs.
8. The appellant is 35 years of age. He has made nine previous court appearances, which have been mostly for offences of robbery, sometimes including firearms, and his only conviction in relation to drugs, prior to these matters, was as long ago as 1982, in relation merely to the possession of drugs.
9. His most recent court appearance, prior to these events, was in May 1993, when, as we indicated earlier, he was sentenced to a total of 11 years' imprisonment for attempted robbery and carrying a firearm with intent to commit an indictable offence. From that sentence he was released on licence on 27th February 1998.
10. On behalf of the appellant Mr Mackinnon, who did not appear in the court below, is critical of the total sentence passed by the learned judge. He submits that the judge, in passing a sentence of 5 years, imposed a sentence which was, in the absence of purity analysis of the drugs, he was not entitled to impose. Mr Mackinnon submits that a sentence of 4 years would have been more appropriate. Mr Mackinnon was also critical of the judge in relation to the term, as well as the circumstances of service, of the unexpired portion of the licence which he ordered that the appellant should serve. Mr Mackinnon submits that in ordering, in effect, some four-and-a-half years to be served in relation to the unexpired period of the licence, the judge was paying inadequate regard to two matters in particular: first, the fact that the appellant had, for the best part of a year following his release from licence, kept away from criminal activity, and secondly, the principle of totality, to which, necessarily, he should have had regard. In relation to those matters Mr Mackinnon referred to R v Taylor [1998] 1 Cr App R(S) 312.
11. So far as the want of purity analysis in the appellant's case is concerned, we are unpersuaded that, had analysis of that kind been carried out, the appellant could have been treated more favourably than he was and we are unpersuaded that a sentence less than 5 years would, in the circumstances, have been appropriate.
12. In the case of R v Djahit [1999] 2 Cr App R(S) 142, BAILII: [1998] EWCA Crim 3533, to which Mr Mackinnon referred, the Court, at page 145 of the report, said that the tariff for a defendant convicted, after a trial, as a low level retailer of heroin or other Class A drugs, with no relevant previous convictions, selling to other addicts in order to buy drugs for his consumption and earn enough to live very modestly is of the order of 6 years. With that observation we agree.
13. On this basis, 5 years for possession of two different Class A drugs, with intent to supply, cannot, as it seems to us, viewed in isolation, be regarded as excessive so far as this appellant is concerned, following his trial.
14. So far as the unexpired term of the licence is concerned, however, in our judgment the learned judge did not pay sufficient regard either to the appellant's history following his release on licence or to the principle of totality. In consequence, we shall quash the order made by the learned judge in relation to service of the unexpired portion of the licence and we will substitute for that order a term of two-and-a-half years to be served in respect of the unexpired period of the licence. To that two-and-a-half years the total of 5 years imposed by the learned judge for these offences will run consecutively. To that extent this appeal is allowed.
15. We turn now to the wider implications of this case. The Court's attention has been drawn to Casework Bulletin No 34 of 1999, issued by the Crown Prosecution Service to prosecutors in relation to purity testing of drugs for sentence purposes. That bulletin was apparently the consequence of a somewhat surprising correspondence between ACPO (the Association of Chief Police Officers) and the Lord Chancellor as to the meaning and effect of a variety of decisions of this Court.
16. Mr Wurtzel, at the Court's invitation, has made submissions in relation to the accuracy or otherwise of that bulletin, and in relation to the circumstances in which the need for purity testing of different kinds of drug arises. Our attention has been drawn to a considerable number of authorities. They include R v Aramah 4 Cr App R(S) 407, R v Aranguren 16 Cr App R(S) 211, R v Warren & Beeley (1996) 1 Cr App R 120, R v McPhail [1997] 1 Cr App R(S) 321, BAILII: [1996] EWCA Crim 780, R v Hurley [1998] 1 Cr App R(S) 299, BAILII: [1997] EWHC Admin 715, Ronchetti [1998] 2 Cr App R(S) 100, BAILII: [1997] EWCA Crim 3090, R v Wijs [1999] 1 Cr App R(S) 181, BAILII: [1998] EWCA Crim 1662, R v Avis [2000] 1 Cr App R(S) 38 and R v Smythe [2000] 1 Cr App R(S) 547.
17. In the light of those authorities, although no criticism attaches to the Crown Prosecution Service, the guidance which they issued to prosecutors in Casework Bulletin No 34 does not, in our judgment, accurately reflect the terms and effect of the decisions of this Court in relation to the need for purity testing. The following is, we believe, an accurate summary of the relevant principles in authorities to date:
18. 1. The amount of Class A or Class B drug with which a defendant is involved is a very important but not solely determinative factor in sentencing (Warren & Beeley, at page 123D, Wijs at page 182). Evidence as to the scale of dealing can come from many sources other than the amount with which a defendant is directly connected;
19. 2. Amount should generally be based on the weight of drug involved at 100% purity, not its street value (see R v Aramah at page 409 and Ronchetti at page 104 as to cannabis; Aranguren at page 351 as to cocaine; Warren & Beeley at page 123A as to 'Ecstasy' and Wijs at page 183 as to amphetamine). But, in some circumstances, reference to the street value of the same weight of different drugs may be pertinent, simply by way of cross check. For example, 1 kilogramme of LSD is worth very much more than 1 kilogramme of heroin, and 1 kilogramme of amphetamine is worth very much more than 1 kilogramme of cannabis resin;
20. 3. Weight depends on purity. The purity of drugs such as cocaine and heroin, (which are not in tablet or dosage form and are often contaminated by other substances), and amphetamine powder, can be appropriately determined only by analysis. The weight of drugs such as 'Ecstasy', in tablet, or LSD, in dosage, form, can generally be assessed by reference to the number of tablets or doses and, currently, an assumed average purity of 100 milligrams of 'Ecstasy' (Warren & Beeley at page 123A) and 50 micrograms of LSD (Hurley at page 304) unless prosecution or defence, by expert evidence, show the contrary (Warren & Beeley at page 236, and McPhail at page 322).
21. We add these further comments by way of guidance only. Purity analysis is essential for sentencing purposes for cases of importation, or in other circumstances, where 500 grammes or more of cocaine, heroin or amphetamine are seized. It may be desirable in cases where quantities less than 500 grammes of those substances are seized.
22. But, bearing in mind the cost of purity analysis and that analysis may cause delay, purity analysis will not generally be necessary or desirable on behalf of the prosecution or defence where a defendant is in possession of only a small quantity of cocaine, heroin or amphetamine, consistent with either personal use or only limited supply to others. In such a case the Court can be expected to sentence only on the basis of a low level of retail dealing, but taking into account all the other circumstances of the particular case.
23. But, as purity can indicate proximity to the primary source of supply, if there is reason for the prosecution to believe that a defendant in possession of a small quantity of drugs is close to the source of supply and is wholesaling rather than retailing, it will be necessary for purity analysis to be undertaken before a Court can be invited to sentence on this more serious basis.
24. In the absence of purity analysis or expert evidence, it is not open to a court to find or assume levels of purity, except in the case of 'Ecstasy' and LSD in the circumstances to which we have referred.
25. For the reasons earlier given, this appeal is allowed to the extent which we indicated.
26. MR WURTZEL: Might I ask, I am very grateful for the guidance your Lordship has given. The only matter now concerns me which I raised within my skeleton is the question of the case of McPhail where the Court, at that stage, actually said that, and it was of course a 'Ecstasy' case, that the Court should be informed of the purity of the sample in every case. It seems to follow from what your Lordship has said that that would not be necessary.
27. THE VICE PRESIDENT: I thought we dealt with it expressly in the sense that where 'Ecstasy' and LSD are concerned, the average strength indicated in the authorities, currently, is the one on which everyone should proceed, unless there is reason to believe that it is not so, in which case, the court, by expert evidence or otherwise, needs to be informed.
28. MR MACKINNON: May I also I would have asked outside the scope of my brief to contribute, that in that case that my learned friend, Mr Wurtzel, referred the case of Daniel McPhail [1997] 1 Cr App R(S).
29. THE VICE PRESIDENT: Where are we going Mr Mackinnon?
30. MR MACKINNON: His Lordship, Mr Curtis J, made an unequivocal comment along the lines. Mr Wurtzel said, at page 323: "We consider it is essential in future cases that counsel are in possession of the necessary factual information and be able to lay the matter before the judge".
31. THE VICE PRESIDENT: That has to be read in the light of subsequent authority in relation to LSD and 'Ecstasy' and the terms of the present judgment. Thank you.