England and Wales Court of Appeal (Criminal Division) Decisions

David Breen and Samantha Jane Burton, R v. [2001] EWCA Crim 1213 (17th May, 2001)

Case No: 99/4460 and 99/4461/X3

Neutral Citation Number: [2001] EWCA Crim 1213

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice

Strand, London, WC2A 2LL

Thursday 17^th May 2001

LORD JUSTICE KENNEDY:

Proceedings

1. On 22^nd June 1999, at the Crown Court at Derby, Breen who is now 30 years of age, pleaded guilty on re-arraignment to four counts of supplying a controlled drug of class B, namely amphetamine. His co-accused Burton, who is also 30 years of age, pleaded guilty to three similar counts, two relating to amphetamine and the third relating cannabis resin. On 30^th July 1999 at the same court they were both sentenced to a probation order for a period of 18 months.

2. They now appeal against conviction by leave of the single judge.

Facts

3. On seven occasions in May and June 1998 undercover police officers purchased goods from the appellants at their home address in Derby. On the first occasion two officers arrive unannounced and asked Breen for "blow". He replied that Burton was "at Cass's sorting it". He supplied the officers with his mobile telephone number and on the following day one of the officers returned. Breen was then able to supply him with twenty pounds worth of cannabis resin. Burton was present but took no active part in the particular supply. The officer was invited to return at any time. There were subsequent visits with broadly similar results. On 17^th June a search warrant was executed and small quantities of cannabis resin and amphetamine powder were found. The police also seized scales and cutters. When interviewed both appellants said that they had supplied to officers out of drugs they had purchased for their own use. Burton thought that they were friends of her co-accused and Breen thought that they were men working away from home.

The Submissions

4. At trial it was submitted that the proceedings should be stayed as an abuse of process. The officers had been acting as Agents provocateurs, and had procured the appellants to commit the offences. That submission was rejected, and the appellants then changed their pleas.

Grounds of Appeal

5. In their grounds of appeal the appellants contend that the trial judge was wrong to rule as he did. They repeat their assertions that the specific acts of supply were instigated by the officers and contend that that was in breach of police guidelines. They also contend that there was no evidence of pre disposition to dealing, whatever suspicion there may have been and point out that no large amount of drugs or money was found.

Conclusion

6. When this case was called on Mr Emmerson for the appellants felt unable to advance positive arguments in support of the appeal. For the reasons which are fully set out in our judgment on Attorney General's Reference No 3 of 2000 we consider that this present appeal has no real prospect of success. The judge was entitled to find, as in effect he did, that the undercover officers did no more than give the two appellants an opportunity to break the law, of which each of them freely took advantage. In those circumstances their appeals against conviction must be dismissed.