England and Wales Court of Appeal (Criminal Division) Decisions

R v. John Terrence BROCK and Ruth Avril WYNER [2000] EWCA Crim 85 (21st December, 2000)

Case No: 199907638/7641 W1

& 20000252/442 W1

IN THE COURT OF APPEAL

(CRIMINAL DIVISION)

Royal Courts of Justice

Strand, London, WC2A 2LL

Thursday 21st December 2000

THE VICE PRESIDENT:

1. Following a 6½ week trial at Cambridge Crown Court before His Honour Judge Howarth, the appellants were convicted by the jury, on 17th November 1999, on one count of permitting premises to be used for supplying Class A controlled drugs between February and May 1998, contrary to the Misuse of Drugs Act 1971 s8(b). On 17th December Wyner was sentenced to five years imprisonment and Brock to four years.

2. The single judge granted both appellants leave to appeal against sentence. But, in relation to conviction, having considered the many grounds of appeal advanced on behalf of both appellants he gave detailed reasons for refusing leave to appeal. On 17th July 2000, on renewal of the application for leave in relation to conviction, the full court granted leave in relation to one matter only, namely, the adequacy of the judge's summing up with regard to knowledge and the taking of reasonable steps to prevent drugs being supplied. The appellants were released on bail having spent approximately 7 months in custody.

3. In outline, the facts were these. Winter Comforts for the Homeless was a charity operating from Overstream House in Cambridge. From January 1995 the appellant Wyner was director and the appellant Brock the project manager of "The Bus Project", a daytime drop-in centre which provided shelter, food, clothing, washing facilities, advice and medical care for the disadvantaged, particularly the homeless. An undercover police operation during the period identified in the indictment, involving some 300 hours of video-recorded observations, revealed open and obvious dealing on and from the premises. In consequence, eight people were arrested and prosecuted for supplying heroin. The case for the prosecution against the appellants was that it would have been obvious to anyone working at the premises that such activity was taking place, the project's policy in relation to drugs was not enforced by the appellants as it should have been and they were unwilling to take reasonable steps readily available to them to stop the dealing happening.

4. The appellants denied being unwilling to prevent drug dealing taking place and said they did not permit it. Wyner said that she had implemented policies to prevent dealing and relied on the staff to do their job properly. Only 30% of her time was spent on the Bus Project. She had an office at the top of Overstream House and only visited the ground floor, where the drug dealing was taking place, from time to time. Brock said he was unaware of the extent of the problem. He was a caring professional doing a difficult job.

5. The issue for the jury was whether the appellants knew that the supply of heroin was taking place and whether they were unwilling to prevent it by taking all reasonable steps readily available to them to prevent dealing in heroin on the premises.

6. We turn to outline the evidence. The Bus Project had originally been in Lion Yard but it moved to Overstream House in 1994 when Winter Comfort became responsible for operating it. There was a joint service agreement between the funding bodies, which included local authorities, and Winter Comfort. An open door policy was operated but there was a prohibition on violence, drink and drugs. When Wyner was appointed a director of Winter Comfort she drafted an operation policy document which was effective from 1st May 1995. This described the line management and provided the duties and responsibilities of the director and project manager, among others. Guidelines for staff, rules and regulations were prescribed. Serious incidents involving persistent breaches of the rules were to be reported to the manager who was to report them to the director and, if appropriate, to the next meeting of the Advisory Group. No non-prescribed drugs were to be allowed on the premises. Customers could be barred from the premises, if necessary with help from the police. Confidentiality of the customers was protected, in that no information was to be passed on without the express permission of the individual, unless there was an element of danger, safety or personal harm involved. Even in cases where the police were called in relation to specific incidents, only information relating to that incident was to be given. These provisions were contained in a customer confidentiality document drafted by Wyner in June 1995 and approved by the Council of Management in August 1995. The document stated it was not a criminal offence to fail to pass on information to the police when a member of staff was aware that criminal activity was being engaged in, unless done for personal gain or act of terrorism. The prosecution claimed that this showed Wyner's attitude that there was to be no shopping of customers to the police, even when they were engaged in criminal activity.

7. Members of the Advisory Group, which met every six weeks or so, included representatives of the funding bodies, the probation service, housing departments and the police. Minutes of meetings held between October 1996 and April 1998 were before the jury. The accuracy of the minutes was a matter of dispute. At a meeting on 15th October 1996 the drugs policy was reviewed, because of the discrepancy between the stated policy of no drugs on the premises and the practice of providing sharpsbins for needles. It was apparent at that time that all was not well in relation to drugs on the premises. The police were concerned. WPC Parsonage, the Community Beat Officer, told both the appellants that intelligence information indicated that there was a drugs supply route from London and Liverpool to Cambridge which terminated at Overstream House. A revised drugs policy was formulated by Wyner in a document produced on 14th January 1997. This contained a detailed policy which included provision for bans for periods ranging from short to indefinite duration for breach of the rules against drug abuse.

8. From 15th January 1997 entries were made in a bans book. The first ban for dealing was for 2 weeks in August 1997. On 7th November 1997 ´Z' was banned for 2 weeks for suspected dealing. On 7th December 1997 the first indefinite ban imposed for dealing was recorded. On 20th December ´A' was banned indefinitely for dealing but on 4th January 1998 was allowed back in. On 14th February 1998 ´L' was banned for 1 week for dealing and on 26th February ´Z' was banned for dealing indefinitely. In April three others were banned for short periods for swapping or sharing drugs.

9. The daily log books indicated the frequent presence at the premises of those in relation to whom bans had been imposed. For example, ´Z' who had been banned indefinitely at the end of February was at the premises on 3 separate days at the end of April and again at the beginning of May. There were a dozen or so entries, during the period between the beginning of April and the beginning of May 1998, relating to others who were still at the premises despite having been banned. Following a death at the premises on 15th April 1998 the police sought the names of those who had been banned for supplying drugs. That request was declined, but an offer was made to say how many had been banned for drugs supply and misuse in the 3 months between January and March 1998. The figures supplied by Brock were for a fifteen month period so they were totally misleading: it was a matter of dispute whether that was a deliberate or accidental supply of misinformation.

10. Evidence as to what was happening at the premises in relation to drugs came from a variety of sources. Mr Brewis, a user of the Bus Project, said the type of customer changed following the move to Overstream House. More clients with drug problems arrived and the problem escalated. Clients brought drugs onto the premises and dealers started dealing in drugs including heroin. Inspector Constable, the sector inspector, who was unaware of the surveillance operation or the use of under-cover officers, disliked the definition of client confidentiality and the stance adopted by the appellants with regard to it. The provision of names would have assisted the police in targeting obvious dealers. He was never offered the opportunity of seeing the bans book. By January 1998 the police were most upset about the drug problem and there was a raid which involved police challenging dealers outside Overstream House, who then ran inside and were followed by police officers. The minutes of the Advisory Group meeting of 20th April 1998 did not record his request for assistance. Wyner was unhelpful when he asked who had supplied the drug to the person who had died. PC Lappin was the beat officer from October 1997. He had regular contact with the premises and attended meetings with staff. He did not see any dealing while he was on the premises. On 7th May 1998 he made two arrests. Brock told him he suspected someone of using drugs but nothing was found when he searched that person, who was banned indefinitely by Wyner. He said the drugs policy seemed fairly relaxed. It was obviously a problem. But the staff seemed to be quite effective in what they were trying to do. He had no concerns about how the premises were being run. He, too, was unaware of the covert operation. He was never shown the bans book.

11. Gaynor Griffiths, a member of the Advisory Group, said that, at the October 1996 meeting, they were led to believe that drugs were not being used on the premises. She felt that discussion was always carefully designed to focus on the effect of drug taking on the user rather than on the project. But, at the August 1997 meeting, she thought she had said that monitoring was not likely to be effective and she had raised the question of drug dealing at the September 1997 meeting. By the January 1998 meeting, she was still making representations about drugs and dealing and was being told that Winter Comfort was doing all it could. In her view it was not.

12. Surveillance during February, March/April and May 1998 included the use of two undercover officers who were both able to buy drugs at Overstream House. None of the staff seemed to supervise and none of the dealers appeared at all concerned. Apart from a man at the counter there was no one apparently supervising.

13. Three dealers gave evidence of their activities using the Bus Project from October 1997 to the beginning of May 1998. One said she sold heroin without any interference from staff. There was no supervision. The rules were not enforced. She was banned once in December 1997 and then allowed to return. She described the Bus Project as a "smack dealers paradise". She said deals were put away when staff approached, making it difficult for staff to catch it. There was a system of signals to warn of someone approaching and the best place to deal where they could not be seen was worked out. Another dealer, who had been using heroin for 25 years, said there were a lot of dealers and users at the Bus who made no attempt to hide what they were doing and the staff saw it going on. He sold between 10 and 70 bags a day between November 1997 and April 1998. He was twice banned for being in the toilet with someone else but was never banned for dealing. Whenever the police were called the staff announced that the police were on their way. He said that he was seen by staff about five times. A third dealer had first gone to the Bus in the summer of 1997, to buy heroin. From March 1998 he had gone there to sell. He was not concerned about the staff and was never warned off even when he told one Bus Project employee that he intended to draw users away from the Bus to Jesus Green. There were about ten other dealers there at the time. He sat inside, always at the same table, and later sold from outside in the yard. He never saw anyone being banned. It was not necessary to worry about the staff. The deals were done openly between about 9am or 10 am and 2 pm. There was a constant flow of people who came in just to buy. He was never questioned by staff or told not to sell drugs. He was arrested in May 1998 following sales to undercover officers. He said in cross-examination that, when he first arrived, there were forty or fifty people rushing up to see him and this could not be hidden.

14. Following the arrest of the appellants in May 1998 the policy at the Project was reviewed. At a meeting on 28th July a number of fundamental changes were introduced. There was no longer to be an open door policy, a secure door was installed, admission would be by buzzer only, entry would be regulated by common CCTV, the fence was to be strengthened, the inner courtyard was to be made more secure and a strict timetable for services and staff responsibilities was to be adhered to.

15 Wyner was arrested on 12th May and Brock on 20th May 1998. In interview they denied permitting drug dealing. There was some tension between their defences before the jury. Wyner placed some blame on Brock for not keeping her informed. He placed some blame on her for the policies which she wrote.

16. Wyner gave evidence. She had overall responsibility for 3 projects including the Bus. There were complaints about drug users on the Project. Mr Brewis spoke to her about his concerns. She did not think users should be excluded but she did not want dealers. One dealer was tolerated because the staff were concerned about her safety. She thought the banning policy was appropriate and was not informed that it was not being enforced. She never saw any dealing. In cross-examination she agreed there was no room for tolerance of drugs in the provisions of the joint service agreement and that removal of dealers would be important in helping to prevent overdoses. But it was a big leap to giving information. She agreed that, once banned, dealers were no longer clients, but said it was not professional to give details to the police, because it was difficult to provide a service if clients knew they were to be informed on. Syringes were not removed from clients at the door. Clients were banned if drugs were seen blatantly. She expected dealing to be reported to her and Brock. She never instructed the staff to tell dealers the police would be called if they were seen dealing again. She did not read the bans book all the time. The staff and Brock knew there were no second chances for dealing, which should have attracted an indefinite ban for the first offence. A two week ban for dealing was unacceptable, though this did happen in relation to 4 or 5 dealers. She thought that the drug problem was well controlled in 1997 and 1998. The staff were addressing it as best they could. She conceded that the operation and supervision of her policy was not totally effective. They could not inform on a client for dealing. She was depicted on a video walking past one banned dealer, but said it may be that she had not spotted him. She was too busy to read the daily log each day. She had not shut her eyes to the obvious. Gaynor Griffiths tended to get on her soapbox when she said it was a honey pot for dealers. She agreed that the drugs policy in October 1996 did not comply with the service agreement because it contemplated the use of needles on the premises. She knew by July 1997 that obvious dealing was taking place on the premises. The absence of bans from the bans book may have been due to some indefinite bans not being recorded. She agreed that the figures supplied for 3 months in 1998 were misleading; there were sixty odd bans not over two hundred. The list had been compiled by Brock. She had accepted it as correct without checking.

17. Dr Read, a member of the Council of Management, said Brock was responsible for ensuring the staff operated the drugs policy and Wyner's role was to ensure that Brock ensured that the staff operated the drugs policy. The confidentiality policy was not a device to deter the police but was to define the staff's position. The policy was that drugs were prohibited. The staff were not expected to inform on clients but should refer matters to their superior. If Wyner was asked by Inspector Constable to provide the names of banned persons he would have expected her to consult the Chair of the Council of Management. The Council should be told of any problems. Wyner should have told them if she was aware of enforcement difficulties. It was the director's duty to ensure that policies were enforced and the Project ran within the law. The staff would be expected to seek authority from the manager in response to police requests for information. The closed-door policy was implemented after the appellants were charged. The open-door policy had been the problem.

18. The appellant Brock gave evidence. He did not take part in drafting the drugs policy, but was responsible for implementing it. The vulnerability of the user was taken into account in assessing the length of a ban. He was on the floor of the project 8 hours out of 36. The toilet area was difficult to supervise. The police would be called for help in ejecting someone but they had to wait for the police. He was unaware of the activities shown in the videos, and never turned a blind eye to dealing. He did not condone or encourage it and had no wish to hinder the police. Mr Brewis offered to keep watch for drug abuse and he on one occasion pointed someone out. But he was suspicious of Brewis' motives. ´Z' was a daily problem who repeatedly came back after being banned. He had supplied the bans book figures for 3 months: although it was now blindingly obvious that the figures he had given were for fifteen months he had not noticed this at the time. The police were refused access to the bans book. He agreed in cross-examination that drugs was a problem which had escalated to epidemic proportions. He made sure that Wyner was as aware as he was of the potentially bad situation. He was prevented from following his instinct to give information to the police by the confidentiality policy. The fact that dealers were also users made them vulnerable. The steps of the premises were a dealing hot-spot. He put up notices asking people not to congregate there but they were ignored. The staff did what they could to get people to move but he agreed this was not always evident on the video. He had not read the confidentiality policy closely and did not appreciate that there were circumstances of danger, safety and personal harm in which that policy could be disregarded. He agreed it was essential that everyone knew who was banned and he hoped that the staff would all know. There was no excuse for them to ignore people who were banned, as was apparent in the video. He agreed that the Advisory Group meeting on 20th April 1998 was important following the death of a client five days before. The police were refused access to the bans book. He agreed the police were reliant on whatever information the project decided to give them. He knew dealing was going on, but not to the extent seen on the videos. Character evidence was given about Brock which spoke of him in the highest terms.

19. On behalf of both appellants Mr Mansfield QC pointed out that s8(b) of the Misuse of Drugs Act 1971 does not make it an offence to permit someone to use heroin on the premises. He referred to Sweet v Parsley 53 CAR 221 where Lord Diplock, at 249, when referring to s5 of the Dangerous Drugs Act 1965 (which made it an offence to permit premises to be used for the purpose of smoking cannabis or cannabis resin and dealing in cannabis or cannabis resin) said:

"Here the word "permits" used to define the prohibited act in itself connotes as a mental element of the prohibited conduct knowledge or grounds for reasonable suspicion on the part of the occupier that the premises will be used by someone for that purpose and an unwillingness on his part to take means available to him to prevent it".

Mr Mansfield pointed out Lord Diplock did not adjectivally describe "means" and words such as effective, adequate, reasonable and sensible to which subsequent authorities refer are not synonymous. (This is true. But reasonable and sensible are synonymous. Steps which are obviously inadequate or ineffective are unlikely in themselves to be reasonable and unwillingness may be inferred from a failure to take more adequate steps). In Souter 55 CAR 40Lord Justice Edmund Davies at 408 adopted the test of permitting propounded by Lord Parker CJ in Gray's Haulage v Arnold 1966 1WLR 534 at 536:

"actual knowledge or knowledge of circumstances which fixed them, as it were, with a suspicion or knowledge of circumstances so that it could be said that they had shut their eyes to the obvious, or had allowed something to go on, not caring whether an offence was committed or not"

.

At 409 Edmund Davies LJ having referred to the passage in Lord Diplock's speech in Sweet v Parsley which we have quoted said, by reference to "unwillingness", "the best indication of such unwillingness is proof of failure to take reasonable steps readily available to prevent the prohibited activity". Mr Mansfield submitted that, in this passage, "reasonable" must have a subjective as well as an objective element for a manager of premises: it is necessary to consider the subjective question of what reasonable steps were believed by the defendant to be available, as well as the objective question as to whether that belief was not only genuine but also based on reasonable grounds. Mr Mansfield also referred to Thomas & Thomson 63 CAR 65 where, at 68, Lord Justice Stephenson giving the judgment of the Court of Appeal (Criminal Division) approved these terms in a summing-up:

"If a person knows, as was admitted in this case, that smoking was taking place and is unwilling to take means available to him to prevent the prohibited act, is unwilling to take steps which are open to him to prevent the prohibited act, then, members of the jury, he is at the very least shutting his eyes to what is happening is he not? The best indication of such unwillingness is proof of failure to take reasonable steps readily available to prevent the prohibited activity".

In the present case, submitted Mr Mansfield, the judge failed to direct the jury about the ambit of the term knowingly and the question of reasonable steps. Knowledge of supply was admitted. But it was in issue whether the appellants knew the nature or level of the dealing which was going on. What can be done is related to what you know. But the judge directed the jury that once you know you must take all reasonable and effective steps to prevent dealing.

20. Mr Mansfield accepted that the judge correctly directed the jury, in relation to "knowingly permit", that a defendant must have "either actual knowledge that the premises are being used for supply of drugs or knowledge of circumstances such that the defendant can be said to shut his or her eyes to the obvious". The judge went on, if there was this knowledge that they must further consider

"was he or she unwilling to use means available to him or her to prevent it happening? Were there means available, not fanciful means but reasonable sensible steps readily available, to prevent the prohibited activity?. If there were and you find the defendant failed to take such steps or failed to take them effectively then that is evidence from which you may infer this necessary element of permitting, that is an unwillingness to use such means to prevent the activity".

Thus far, Mr Mansfield does not criticise what the judge said. But at page 6 line 23 he went on:

"you decide what steps were available to the defendant looking at the whole of the evidence. You the jury set the standard to be expected of a person in the position of this defendant aware as he or she was that supplying was taking place"

.

Mr Mansfield was critical of this last passage because it contained no reference to what the defendant believed was reasonably available. Mr Mansfield was also critical of a further direction that "if he fails to take a step that you find was available to him then that is evidence from which you may infer that he was unwilling to prevent it". That is a direction which the judge illustrated by reference to four different situations which contemplated the jury finding unwillingness on the part of a defendant from, among other things, failing to take an available step or an effective step. The effect of these directions, Mr Mansfield submitted, was that the jury could infer unwillingness if a defendant had not taken every reasonable and available effective step. This misdirection was compounded, submitted Mr Mansfield, because the judge went on wrongly to exclude, in relation to reasonableness, the factor of the confidentiality policy which had been approved by the whole charity. It was, he submitted, a defence if a defendant reasonably believed that the confidentiality policy provided a defence. Mr Mansfield complained that this aspect was, further, wrongly highlighted by the judge at the very end of his summing-up when he said

"the law does not permit you to write or operate a private policy so as to exempt you from the law's requirements and so, looking at the whole of the evidence, provided you are sure informing the police of the identity of drug dealers was a reasonable step readily available to a defendant the very act of writing or operating such a policy as these defendants did is itself evidence from which you, if you think it right, can infer that he or she was unwilling to prevent the activity happening on the premises"

If such a direction were right, he submitted, it would mean that the committee of management would also be guilty.

21. For the Crown, Mr Clegg QC accepted that the judge did not direct the jury to consider what reasonable steps were believed by the defendants to be available. But, he submitted, the test of permitting is objective without any subjective element. It would be bizarre if there were a defence on the basis of belief that reasonable steps had been taken to prevent the consequences occurring. For example, a defendant who believed it was reasonable merely to put up a notice prohibiting drug dealing would have a defence, even if any reasonable person would have concluded that it would be reasonable to inform the police. A manager of premises is not required to take unreasonable steps. But, if he fails to take reasonable steps to prevent the supply of heroin which he knows is taking place, he is guilty of permitting. It was never suggested that these appellants should close the premises: that would have been unreasonable and would have defeated the laudable objectives of the charity. But refusal to inform the police of the names of those selling heroin was capable of being unreasonable if the jury so decided. The code of confidentiality could not be relied on by the defendants to escape criminal liability if the jury concluded that telling the police would be a reasonable step. In any event, a drug supplier had no right to confidentiality, even if he had initially been a client, because he was offending the rules of attendance by supplying. Once the Crown proved management of the premises with knowledge that heroin was being sold, the only other element requiring proof was whether drug supply was "permitted". If reasonable steps exist which can be taken to stop the activity, a manager aware that such steps exist is guilty unless he takes them. The confidentiality policy was not irrelevant, for the jury were entitled to have regard to the reasons why the defendants did not take steps, and steps must be reasonable in the light of the problem as you know it. Sweet v Parsley, Souter and Thomas & Thomson show that a defendant must take reasonable steps readily available, and whether steps are reasonable is essentially a matter for the jury in the light of all the evidence, as the trial judge repeatedly directed them. It was common ground at the trial that the Charity Trustees were never approached by the appellants as to what other steps might be taken. The reality was that the appellants did absolutely nothing to combat the substantial dealing on the premises.

22. In his reply, Mr Mansfield submitted that the stance of the prosecution had shifted since trial. At trial, following lengthy submissions, the judge had ruled that the defendants level of knowledge as to how much supplying was occurring was irrelevant when considering the steps available to the defendants, whereas it was now being said that the steps must be reasonable in the light of the problem as you know it. In view of his ruling, the judge gave no direction that level of knowledge was relevant to the reasonableness of the steps taken. His failure to give such a direction, submitted Mr Mansfield, renders the verdicts unsafe.

23. We do not accept Mr Mansfield's first and broader submission that "reasonable" has a subjective element. A belief by a defendant that he has taken reasonable steps does not afford any defence. What the prosecution must prove to establish the offence of permitting under s8(b) is (i) knowledge, actual or by closing eyes to the obvious, that heroin dealing is taking place; and (ii) unwillingness to prevent it, which can be inferred from failure to take reasonable steps readily available to prevent it.

24. A defendant's belief that the steps that he has taken are reasonable is irrelevant. It is not for a defendant to judge his own conduct. That is for the jury. In the present case, it was not open to the defendants to shelter behind the existence of the confidentiality policy. The existence of that policy, its rationale and constraints were factors for the jury to consider, when deciding whether the defendants had taken reasonable steps. The judge was therefore correct at the end of his summing-up to direct the jury that "the law does not permit you to write or operate a private policy so as to exempt you from the law's requirements". Nor was it a misdirection to say that writing or operating such a policy was evidence from which unwillingness to prevent the activity could be inferred. The judge was also correct to direct the jury that, if they found a defendant did not take all reasonable steps within his or her power to prevent dealing, unwillingness and therefore permitting could be inferred.

25. However, what steps are reasonable in a particular case may depend on a defendant's level of knowledge. This can be illustrated from the facts of the present case. If a defendant was only aware that drug dealing was taking place in the lavatory it may well have been reasonable merely to have a system of close supervision in the lavatory or of those going to and fro. If a defendant was aware that drug dealing was repeatedly and openly taking place in or near the premises, a jury might well conclude that reasonable steps required that the police should be called and that the confidentiality policy, which by its terms could be disregarded in cases of danger, safety or personal harm, did not apply to clients who were dealers.

26. There is some reflection of the need for this approach in the judge's direction "you the jury set the standard to be expected of a person in the position of this defendant, aware as he or she was that supplying was taking place". But, pursuant to the ruling he had earlier given, there is no direction anywhere in the summing-up that, in assessing what steps a defendant should reasonably have taken, regard should be had to his or her level of knowledge of the dealing which was taking place. In our judgment there should have been such a direction.

27. The remaining crucial question is whether, in the absence of such a direction, these convictions should be regarded as unsafe, that is whether, had such a direction been given, the jury's verdicts might have been different. It is to be noted that, following a 6½ week trial, the jury reached unanimous verdicts after a retirement of just over 5 hours. The summing-up was fair and balanced and contained a detailed and accurate review of the evidence on both sides, including a faithful rehearsal of the appellants' denials that they were aware of the scale of dealing. Save in the respects already indicated, no suggestion to the contrary is made. In our judgment, it is inconceivable that, if they had been given the further direction which we have identified, the jury's verdicts would or could have been different. Wyner agreed in evidence that there was no room for tolerance of drugs in the provisions of the joint service agreement and that removal of dealers would be important in helping to prevent overdoses. When a fatal overdose occurred on 15th April she refused to help the police or name dealers. She did not instruct staff even to tell dealers that the police would be called if they were seen dealing again. She accepted that a two week ban for dealing was unacceptably inadequate, yet this had happened in relation to 4 or 5 dealers. At the Advisory Group meeting in July 1997 she admitted she knew that obvious dealing was taking place on the premises. She did not, as Dr Read said she should have done, consult the Council of Management when the police sought the names of banned persons. The appellant Brock accepted that he knew there was an epidemic of drug dealing. What he told the police about the contents of the bans book was totally misleading and, whether this was deliberate or inadvertent, it demonstrated an unwillingness on his part to face the problem.

28. Further, the appellants' level of knowledge could have had no relevance to the conclusions to be drawn from their lack of co-operation with the police in refusing to identify dealers after the death on 15th April or in supplying misinformation as to the contents of the bans book. Although level of knowledge was of some relevance to the steps which they took to stop or restrict dealing without recourse to police help, the bans book and daily log demonstrated both the rarity of bans of any significant length and the repeated flaunting of such bans as were imposed. The contents of these books, of which both appellants were or should have been aware, amply demonstrated, in themselves, a failure to enforce the joint service agreement prohibition on drugs and the no-drugs rule in the operational policy which Wyner had drafted. It is therefore apparent that, on the evidence before them, the jury could only have concluded that both appellants were aware of, or shut their eyes to, an obviously significant level of dealing. Accordingly, the precise level of dealing of which they were aware would not materially affect the steps the appellants left untaken on which the prosecution relied as demonstrating unwillingness to prevent drug dealing. It follows that, if the jury had received the further direction to which we have referred, they would inevitably have concluded that there were other reasonable steps which the appellants could or should have taken.

29. In these circumstances, we are satisfied that the verdicts of the jury in relation to both appellants are safe and the appeals against conviction are, accordingly, dismissed.

30. As to sentence, this court is always slow to interfere with the sentence passed by a trial judge who, over a period of weeks, has had the opportunity to assess the culpability of a defendant and the relative culpability of more than one defendant. The sentencing exercise in the present case was particularly difficult. So far as is known, this is the first case in which persons running a refuge for the homeless have been convicted of permitting their premises to be used for the supply of drugs. Abuse and possession of illegal drugs is not uncommon among the homeless. But this offence has to be seen as serious for a number of reasons. First, Class A drugs were involved. Secondly, the supply was on many occasions and by several suppliers, though the appellants would not have known of every such supply. Thirdly, the appellants were both aware, particularly after the death on 15th April 1998, of police concern about drug dealing. Fourthly, refuges for the homeless are vital at a time when homelessness is, sadly, a prevalent feature of the society in which we live. If such refuges become, as this refuge did, a focal point for the distribution of illegal drugs, local authorities, charitable foundations and others may well be reluctant or unwilling to provide the financial support without which such refuges are unlikely to exist. They must be run in accordance with the law. These appellants did not have the mitigation of a plea of guilty. On the other hand they did not stand to make any commercial or other gain from what happened. Their conduct lacked the evil motive which is usually a feature of criminal behaviour: quite the contrary, they were caring for the unfortunate, doing a job which few would envy and, it may be, particularly in the case of Brock, falling foul of the criminal law through weakness rather than any wish to frustrate the law. Both appellants are 49 years old and hitherto of impeccable character. They have dependent and loving families. They are spoken of in the highest terms by those who know them. The worry of these proceedings has now been hanging over them for 2½ years and they have spent approximately 7 months in custody pending the hearing of this appeal.

31. In the light of all these considerations, each member of this court is satisfied that the level of sentence chosen by the learned judge was very significantly too high. In our judgment, however, he was right to impose sentences of immediate imprisonment. These offences permitted heroin-dealing which was capable of having a continuously damaging effect on those in the appellants' care, whatever the appellants may have hoped to the contrary. We do not think there is a sound basis for distinguishing between them in terms of punishment. Wyner was in the senior position but Brock was better placed to know the full extent of what was going on. When the character and personal circumstances of the appellants are taken into account, and when it is remembered that this is, apparently, the first offence of its kind in such circumstances, we take the view that, following a trial, the appropriate sentence would have been 18 months imprisonment. We stress that a sentence longer than this may well be appropriate, if, in the future, others in the position of the appellants commit this offence. This case must serve as a warning that no one, however well intentioned, can with impunity permit their premises to be used for the supply of Class A drugs.

32. These appellants have served the equivalent of a 14 month sentence. The question which therefore arises is whether, in view of the level of sentence which we have indicated as appropriate, the public interest now requires these appellants to be returned to custody for a further 2 months. In our judgment it does not. It was for this reason that, at the conclusion of the hearing of these appeals, we indicated that the appeals against sentence would be allowed in such a manner as would not require the appellants to return to custody. Accordingly, we allow these appeals against sentence. We quash the terms of imprisonment imposed by the learned judge and we substitute in relation to each appellant a sentence of 14 months imprisonment or, if necessary, such a lesser term as ensures their immediate release.