England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE LEWES CROWN COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th December 2002

Lord Justice Buxton :

Background

1. The three appellants are brothers. Although they are all men in their thirties, we will if we may, and for purposes of economy, identify them simply by their forenames. In the proceedings from which these appeals are brought, Robert and Sean were convicted of conspiring with their parents, Ronald and Margaret Compton, to supply cannabis and heroin, and Stephen was convicted of possessing the proceeds of drug trafficking. Robert was sentenced to six years imprisonment, Stephen to four years imprisonment and Sean to four and a half years imprisonment. Ronald and Margaret Compton were not proceeded against on the conspiracy count, and all charges against Margaret Compton were dismissed. Ronald Compton however pleaded guilty to various counts of possessing heroin and cannabis with intent to supply, and was sentenced to a total of seven years imprisonment.
2. The central feature of the prosecution's case against all three appellants was the discovery at their respective addresses in the Brighton area, which were different from that of their parents, of very substantial amounts of used banknotes, which according to evidence given at the trial by a representative of an organisation called Mass Spec Analytical Ltd [MSA] were heavily contaminated with heroin. There were three elements in that enquiry and in MSA's evidence about it which represent the central questions in this appeal:

(A) The notes, before being tested by MSA, should not have been contaminated with heroin from sources other than those attributable to the drug-dealing offences with which the accused were charged.

(B) The tests conducted by MSA revealed that a substantial proportion of the notes in each separate bundle of notes displayed traces of heroin.

(C) Those proportions were very substantially above the proportions of notes showing traces of heroin in other bundles of notes in general circulation selected at random and tested by MSA. This material represented MSA's "data base", used for comparisons of the type offered in this case.

The trial

3. A witness from MSA, a Miss Hynes, gave evidence at the trial about points (B) and (C), and was also cross-examined about point (A). She said that all of the bundles of notes tested had contained a high proportion of notes contaminated by heroin. Figures were given for each bundle, but in round terms something like 55 per cent of all notes tested had been contaminated. That contrasted with an average of 2 per cent, and a highest figure of some 5 per cent, of contaminated notes found in the studies that made up MSA's data base.
4. No challenge was made at the trial to the methodology used by MSA, in the sense of the accuracy and reliability of the method used for detecting heroin: point (B) above. The evidence was, however, attacked in respect of points (A) and (C). The defendants contended that the methods adopted by the police when collecting and counting the money on its seisure had exposed it to the danger of contamination. It was also contended that the MSA data base was an unreliable guide for comparison purposes: the total of notes analysed was a minute proportion of all banknotes in general circulation, and no notes had been analysed from the Brighton area, where all the Comptons lived and had allegedly committed the offences charged.
5. The first of these contentions was advanced, in detail, at a voire dire hearing, at which the judge saw video film of the seisure and counting at the homes of Robert and Stephen; there was no video of events at Sean's home. Criticism was made of the fact that gloves had not always been used; the possibility was suggested that the table on which the money was counted at Stephen's house was already contaminated with heroin (the table used at Robert's house had been covered with brown paper by the police before the counting of the notes); and that during the bundling together of the notes in the counting process heroin that was originally on one note only might have been transferred throughout the bundle.
6. Evidence was given on the voire dire by Dr Sleeman, who is the Scientific Manager at MSA, Miss Hynes not being available on the day of the hearing. He agreed that the procedure followed during the gathering of the evidence had not been ideal, particularly in the case of the seisure at Stephen's house. He also agreed with the theoretical possibility of all of the three points raised, but rejected them as a likely explanation of the contamination. His central point was that it was simply very unlikely indeed that the heavy incidence of contamination found in the present case could have been caused by the mechanisms suggested. He said, as the judge quoted in his ruling, that

"the pattern of contamination on these notes is one of the highest I have seen. It is certainly hugely different to what you would normally see in money taken from general circulation."

As to the table, Dr Sleeman pointed out that as well as the bundles of notes, exhibit bags had been placed on its surface. If the table were a source of contamination one would expect the bags also to be contaminated. Only one of the ten bags so used at Stephen's house, and none of the fourteen bags used at the other locations, had shown contamination when tested, and that at a very low level. And since, as Dr Sleeman assumed, the notes had been counted flat on the table, it was highly unlikely that heroin on one of them could have been transferred through the pile.

7. An expert, a Mr Manners, had been instructed on behalf of Robert and Stephen, had submitted a report which was before the court and read by Dr Sleeman, and was present during the voire dire. He was not called to give evidence. The judge ruled against the exclusion of the MSA evidence, largely relying in so doing on the evidence that he had been given by Dr Sleeman. This issue of contamination was pursued at the trial, Miss Hynes, who gave the MSA evidence, being cross-examined by counsel for all the defendants in much the same sense as Dr Sleeman had been cross-examined on the voire dire. Again, no evidence was called from Mr Manners, or from any other expert on behalf of the defendants. The judge summed up the evidence on this point in terms that have not been criticised.
8. As to the representative nature of the MSA data base, at the trial Miss Hynes was cross-examined at some length by Mr Gold, for Robert and Stephen, on the issues listed under point (C) in §4 above. This examination was not on the basis of detailed scrutiny of any of the comparative studies, because MSA had not made them available, but Mr Gold very properly told us that Miss Hynes had volunteered to produce them if required.
9. The jury as we have seen convicted all of the appellants, and thus cannot have been persuaded by the criticisms made of and in relation to the MSA evidence.

The appeal

10. The grounds of appeal as originally formulated made no reference to the MSA evidence. Permission was granted on one basis only, which concerned the terms in which the judge had directed the jury, not about the MSA evidence itself, but about the alleged failure of the appellants in interview to account for the presence on their money of the heroin detected by MSA, under the terms of section 36 of the Criminal Justice and Public Order Act 1994. It was that issue that was listed before another constitution of this court on 14 February 2002.
11. On that day Mr Mercer, for Sean, informed the court that it had only very recently come to his attention that in a number of other criminal prosecutions throughout the country MSA's evidence had been criticised by other scientists and, as the court understood it to be said, had not been relied on. That had not been known at the time of the trial of the Comptons, so as a result those issues had not been pursued there, and had not so far been pursued in the appeal. Counsel asked that public funding should be extended for an expert witness to comment on Miss Hynes' report on which her evidence at the trial had been based, and upon the "methodology" used in producing it. The court did not then make that order, but subsequently the presiding Lord Justice, having received further submissions, ordered the amendment of the grounds of appeal to deal with the point raised on 14 February 2002, and also granted public funding for the preparation of such a report, by a Mr Bottomley. Further, the court having been told that the issue of the reliability of evidence from MSA had been raised in many other cases, and as it understood with success, ordered the prosecution to produce details of all such cases as could be identified.
12. It is very unfortunate, to put it at its lowest, that the court was not told that an expert, in the shape of Mr Manners, had been instructed at the trial, and had not been able to advance any criticisms on which counsel was prepared to rely of MSA's work or conclusions. It was also unfortunate that it was not made clearer than it was that the only criticism of MSA's work that was believed to be "new", in the sense of not having been available at the trial, was criticism directed to MSA's scientific methodology: point (B) above. As we have seen, the second aspect of MSA's work, the comparisons drawn from the data base, point (C) above, had been ventilated at the trial, albeit without the support of the expert then instructed by the defence or of any other expert. Had the court fully understood how the trial had been conducted, it would have limited the new evidence and the new grounds of appeal very closely to evidence as to MSA's methodology, under point (B) above. Had that been done, the appeal would have failed in limine: because, as we shall see, the appellants' expert, Mr Bottomley, in the event had no criticisms to make of MSA's methodology.
13. That however is not how the matter developed. Under the permission granted by the court that is referred to in §11 above, the appellants produced an extensive report by Mr Bottomley, who is the Head of the Forensic Drugs Team at the Laboratory of the Government Chemist (which, despite its name, is a private company). It became clear from scrutinising the papers in the other cases of which the court had sought details that Mr Bottomley had given evidence criticising or purporting to criticise MSA's work in many other cases, and in substantially the same terms as his report in this appeal.
14. Much of Mr Bottomley's report was addressed to issues of possible contamination from other sources. We refused to permit almost all of that evidence to be given, since by the time of the hearing of the appeal we had been put in possession by the prosecution of the text of the proceedings at the trial, from which it was clear that the question of contamination, point (A) above, had been fully investigated, with expert evidence available to the defence but not in the event called. We were however persuaded by Mr Mercer to permit one point made by Mr Bottomley in relation to point (A) to be pursued before us.
15. On page 33 of his report Mr Bottomley said:

"Having examined the videotapes of the officers counting the banknotes on unprotected table tops I would suggest that Ms Hynes' proposition 'that the outermost notes in a bundle might become contaminated to a higher degree due to more handling and closer contact with the surface' may be incorrect. The video tapes clearly show the officers tapping bundles of notes edgewise onto the surface in order to make the neat bundles. Handling and tapping bundles of notes onto a surface in this way could easily result in traces of drugs present on a surface being transferred, more or less evenly, to every single note in a bundle. "

It seemed to us that, insofar as this was a matter of expert evidence at all (and Mr Bottomley later confirmed that he had conducted no experiments to support this hypothesis, and that it was not advanced anywhere in the professional literature), it could have been put forward at the trial either by Mr Manners or by counsel armed with instructions from Mr Manners. Mr Mercer however urged that Mr Manners had not been his expert; he, on behalf of Sean, had no reason to think that this was a relevant point; he had not taken the lead on the contamination issue generally; and fairness to his client required the matter to be investigated, now that it had been raised by Mr Bottomley. With considerable hesitation, we permitted the argument to be pursued. The point being the same in relation to the cases of Robert and Stephen, they clearly had to be permitted to take advantage of it once it was admitted in relation to Sean: despite the fact that they had been fully armed with expert evidence on the contamination issue at the trial, and for whatever reason had not taken this point.

16. So far as the other issues, points (B) and (C), were concerned, the position was as follows. When reading Mr Bottomley's report, and hearing his evidence in chief, we had the greatest difficulty in discerning how in fact he criticised MSA's methodology; and in cross-examination it became clear that he did not do so. In response to Mr Shay Mr Bottomley confirmed that he had no criticism of the techniques used by MSA; no criticism of the scientific competence of MSA's scientists; and no reason to doubt the accuracy of the readings obtained by MSA. Point (B), which was the point on which the court had thought it proper to permit the appeal to proceed, thereby disappeared from the case.
17. That left point (C). Mr Bottomley advanced a number of doubts about the reliability of the MSA data base. It is right to say that these were in some respects more detailed and far-reaching than counsel had taken up with the MSA witness at the trial. Nonetheless, had we appreciated at the outset that there had been that investigation at the trial we would have excluded those parts of Mr Bottomley's report. We have in mind the warnings against the use of the appellate process to improve expert evidence given (or, in the present case, not given) at the trial, or to substitute one expert for another, that were sounded by this court in Jones [1997] 1 Cr App R 86. In the event, however, Mr Bottomley having been permitted to embark on this exercise, we conceived it to be our duty to rule upon it.
18. We therefore turn to the two live issues in this part of the case, point (A) contamination and point (C) the reliability of the data base.

Contamination

19. The evidence as to the method of searching was contained on the video tapes. We required these to be reviewed by both sides in the course of the appeal, and ourselves watched some parts of one of them. Leaving aside matters such as the use of gloves, which had been disposed of at the trial, the agreed factual position relevant to Mr Bottomley's new point as to tapping of bundles of notes on a potentially contaminated surface was as follows, identifying each search by the name of the relevant defendant:

Sean: No video was made of the search. Mr Mercer invited us to assume in his client's favour that the worst of the practice shown on the other videos had been adopted. Four exhibit bags had been used, none of which tested positive for heroin.

Robert: The money had been counted on a table protected by brown paper. Bundles of notes had been "side-tapped" on that paper. Nine exhibit bags had been used, none of which tested positive for heroin.

Stephen: The money had been counted on an unprotected glass table. Most, but not all, of the bundles had been side-tapped in the manner identified by Mr Bottomley. Ten exhibit bags had been used, placed on the table, and in some cases written on whilst on the table. Only one of the bags had tested positive for heroin, and that at a low level in comparison with the heroin found on the banknotes.

20. As we have seen, it was agreed by Dr Sleeman that the searches had not been conducted in an ideal manner. Ideally, the money should not have been counted at all. If it was to be handled on site, "environmental blanks" should have been taken. These involve the wiping of parts of the premises with paper known to be uncontaminated, and then its testing to see if contamination was present. Dr Sleeman however said that the tests carried out on the bags was an acceptable second best, and indicated that the environment, and in particular the table at Stephen's house, had not been contaminated. Mr Bottomley said that in the course of handling and transport heroin originally contaminating the bags might have fallen off. Dr Sleeman's reply was that it was unlikely that that would have happened with all of the number of bags involved in this case. We considered Dr Sleeman to be a fair witness, who was very far from over-stating his case or seeking to be defensive on behalf of his company. We accept his evidence on this point: which, like much else in this case, seems to be a matter of commonsense.
21. We therefore find that it is not established that the notes were or might have been contaminated by counting them in any of the locations searched. We comment further on the three particular cases.
22. It was faintly argued on behalf of Robert that the brown paper used to protect the table might have been contaminated by items kept by Robert in the safe where he kept the money, and unloaded on to the paper with the money. We regard that possibility as bordering on the fanciful, even if it were not the case that the evidence strongly suggests that there was no contamination. In Stephen's case the counting surface was unprotected. Apart from Stephen's general case that he was a drug addict, we were given no evidence to show that the table had indeed been used for drug purposes, much less used so as to produce the heavy contamination that in Dr Sleeman's opinion, which we accept, would be necessary to produce the levels of contamination of the notes seen in this case. Further, the evidence in relation to the bags points strongly away from the table having been contaminated to any significant level. That evidence also means, in the case of Sean, that even if we make the assumptions in his favour urged upon us we cannot reach any conclusion in his favour on this issue.
23. We should also say something about the mechanics of the operation of side-tapping. Mr Bottomley suggested two possibilities, to meet Miss Hynes' point as to the distribution of the contaminated notes throughout the bundles: either the notes had each picked up contamination from the surface; or the effect had been to dislodge heroin from one heavily contaminated note throughout the bundle.
24. The first of these possibilities is excluded by the evidence about environmental contamination to which we have already referred. That was Mr Bottomley's preferred theory, and on reflection it is not difficult to see why. Dr Sleeman did not exclude the mechanics of the second theory, dislodgement, but for it to explain the present case there would have to be present only such number of contaminated notes as by comparison with MSA's data base permitted an innocent explanation, but for those notes to be both heavily contaminated and distributed so that some of them were present in each bundle. That is not a sensible proposition, and it is fair to say that Mr Bottomley did not advance it. In addition, we regard as very significant that the bundles of notes that in the search of Stephen's house were not side-tapped displayed the same characteristics as all of the other bundles of notes.
25. Consideration of Mr Bottomley's new point necessarily entailed some reversion to matters ventilated at the trial, however little that should properly have happened. Looking at the evidence as a whole we are entirely satisfied that there is nothing in this point. MSA's evidence was not rendered unsafe by the methods of collecting and counting of the notes, even though those methods did fall short of best practice.

The data base

26. We have noted that at the trial no direct evidence was available about the studies making up the MSA data base. However, in his report Mr Bottomley included a table of studies that he had been provided with by MSA, apparently in connexion with one of the other cases in which he has given evidence. That showed a series of withdrawals of notes from bank accounts and cash machines, principally from Lloyds Bank, and in a range of towns and cities. Mr Bottomley said that he raised questions not so much about the number of notes tested but about the representative nature of the sample; the difficulty of knowing the history of the notes tested; the heavy concentration on Lloyds Bank; and uncertainty as to whether the same conditions of drug use could be expected in every part of the country. These criticisms were expanded on by counsel, who pointed out that no samples had been taken from London, or from any of the larger northern cities.
27. The difficulty that we found with these arguments was that, if they were to be seriously pursued, they needed to be supported by the evidence of a statistician, which Mr Bottomley plainly was not. Dr Sleeman explained that Lloyds was used because it was MSA's own bank, and notes could therefore be obtained in the ordinary course of business; and that it could be assumed that the ordinary process of circulation of notes through the banking system produced notes from a variety of sources. We found these observations convincing. Since the evidence on the part of the appellants amounts to no more than an appeal to commonsense, we apply our own commonsense to conclude that the range and weight of MSA's data base is sufficient for comparisons safely to be based on it.
28. There is, however, a further reason why we do not accept this part of the appellants' argument. In this case, the difference between the levels of contamination found on the appellants' money and the levels found on money in ordinary circulation is so striking that even if some attack could be made on the margins of MSA's data base the discrepancy would still cry out for an explanation. For that reason, explanations were properly required of the appellants at the trial, explanations that the jury did not accept.
29. We therefore reject all of the grounds of appeal based on fresh evidence. We revert to the appeal as it stood when opened to this court on 14 February 2002.

The section 36 direction: should it have been given at all?

30. All of the appellants contended that no section 36 direction should have been given, because they had not failed or refused to "account" for the presence of the heroin on their money, as section 36 (1) (c) and (d) of the 1994 Act requires. The section 31 judge gave permission to appeal on this ground only to Sean, but we heard argument on it from all three appellants, and will address their cases in turn.
31. Stephen, when cautioned in respect of the heroin, gave a "no comment" interview, apart from saying that he had no involvement in drug trafficking, and that his money was from legitimate means. At the trial, he had to explain the presence of some £107, 000, all of it contaminated with heroin, in two safes at his house. He did so by saying that the money was the funds of a jewellery business, regularly replaced with new notes in order to avoid the attentions of the Inland Revenue, thus handled by him and contaminated from his own drug habit. What he said in interview came nowhere near to being an account of the reasons for the presence of the heroin, such as Stephen thought it necessary to give at trial. In the end Mr Gold did not seriously press this point.
32. Robert, when cautioned in respect of the heroin, said no more than it was legitimate money, not from his family, and that he had been for years a heroin addict. At the trial he said that the money found at his home, which included nearly £30,000 found in a safe, was the funds of his antique business, contaminated through his own personal drug habit. That evidence in substance went no further than what he had said in interview. It is however important to note that section 36, unlike section 34, invites no comparison between the statement in interview and the evidence at the trial, since section 36 contains no parallel to the question under section 34(1) of whether it was reasonable for the defendant to mention a particular fact: reasonableness usually being judged from the starting point of whether the fact was mentioned at the trial. The sole question under section 36 is whether the defendant did "account for" the presence of the substance, as put to him by the officer. In the circumstances of Robert's money, stowed away in a safe, the presence of heroin on it is far from accounted for by a bare statement that Robert was a heroin user.
33. Mr Gold however had another argument. When cautioning Robert the officer said that he was investigating "drug trafficking". But, said Mr Gold, Robert was not charged with "trafficking" but with conspiracy; or, alternatively, that "drug trafficking" was an inadequately specific description of the offence of conspiracy. There had therefore been no "offence specified" by the officer as section 36(1)(b) required, and the necessary pre-condition for a section 36 direction was not fulfilled. We will be forgiven for rejecting this argument out of hand. Mr Gold did not shrink from the logic of it, that the officer must specify in the precise terms of the offence, possibly even by specific reference to statutory provisions. We are certain that Parliament did not intend anything so elaborate. The purpose of this provision is one of basic fairness, first that the defendant should know the offence-context in which the question is being asked; and second that the reply cannot be used against him in the context of a different prosecution. Both of those objectives were fulfilled by what the officer said in this case. And Robert himself never for a moment said that he did not understand why he was being asked the questions, nor could he have done.
34. Sean, when interviewed before the heroin had been detected, said that his wife was a heroin addict, and that the money found at his house came partly from his father, and partly from the sale of a motor vehicle. When re-interviewed after the heroin had been detected he gave a no comment interview. The question is whether Sean failed to account for the presence of the heroin on the money. It was submitted on his behalf that he had done so. The investigating authorities should have been, or were, aware that the heroin could have come from handling by his father, known by the police to be a dealer in heroin; or from the purchaser of the car, who was similarly known; or from his wife. We do not agree. It is the defendant who has to account, and account for a specific state of fact. It is not enough for him to refer to other states of fact, from which it can be inferred what his account might be.

Section 36: adequacy of direction about legal advice

35. All of the brothers gave their no comment interviews on the advice of their solicitors. It was this aspect of the appeal that particularly concerned the section 31 judge. After giving a direction, which has not been criticised, as to the explanations of failure to account given by and on behalf of the three defendants the judge said this:

"When considering each defendant's case, if you think the explanations that I have just summarised amount to a reason why you should not hold that defendant's failure to explain the contamination in interview against him, do not do so. Further, each defendant has told you that he was advised not to answer the questions put. You should consider whether or not that defendant is able to decide for himself what he should do or having asked for a solicitor to advise him, he would not challenge that advice. On the other hand, if it does not, in your judgement, provide an adequate explanation and you are sure that the real reason for that defendant's failure to account for the presence of the heroin contamination on those notes was that he then had no innocent explanation to offer in relation to this aspect of the case, you may hold that failure against him."

36. The judge did not have the benefit of the judgment of this court in Betts & Hall [2001] 2 Cr App R 257, [2001] EWCA Crim 224, which translated into domestic terms the important guidance given by the ECtHR in Condron v UK 31 EHRR 1, [2000] ECHR 191, as to directions under section 34 of the Act, which we accept as relevant to the judge's task under section 36; nor the most recent version of the Judicial Studies Board specimen direction that continues that process. His direction was shorter than that envisaged as now being best practice. It is criticised as not having said in terms that the advice was "an obviously important consideration"; not having made clear that if a defendant genuinely relied on legal advice no conclusion could be drawn against him; and not having sufficiently built into his direction the explanations given by the appellants and the circumstances of their interviews, the latter submission being based on §§ 62-63 of the judgment of the ECtHR in Beckles v UK, application 44652/98, [2002] ECHR 661.
37. We would wish strongly to reinforce the importance of correct directions being given in respect of failures under both section 34 and section 36, not least because this is an area that has attracted the concern of the ECtHR. It is perhaps more important here than in respect of some other issues in a summing-up that the guidance given both by this court and by the JSB is closely mirrored in what the judge says. That said, however, we have to see what basic fairness, which is what article 6 is concerned with, has been held to require. The most crucial point is that the jury must be told that they can only hold against the defendant a failure to give an explanation if they are sure that he had no acceptable explanation to offer. It is noticeable that, in all of the recent cases drawn to our attention where directions have been found wanting, that crucial element had or may have been omitted: see Betts & Hall at §55; Chenia [2002] EWCA Crim 2345 at §92; and Beckles at §64. The jury must not be led into assessing the quality of the decision to remain silent rather than its genuineness: Betts & Hall at §53. The judge made neither of these errors, as the latter part of his direction demonstrates.
38. Further, the judge separated consideration of that point from the jury's assessment of the effect of the solicitor's advice: before the jury could draw an inference, they had to be sure both that the solicitor's advice was not an adequate explanation for the silence and that there was no innocent explanation. And he was justified in drawing attention to the fact that an individual has a choice whether to take the solicitor's advice, in so saying anticipating §57 of the ruling of this court in Betts & Hall. Nor was any specific submission made to us as to what more the judge should have said about the legal advice. The more expansive account that might seem to be called for by Beckles was a requirement stated in the circumstances of that case, where the judge had undermined or appeared to undermine the evidence of the defendant that he had relied on legal advice at all.
39. Had the judge been directing the jury some few months later, he would no doubt have employed the format of the JSB direction, suitably adapted to the circumstances of the particular case. That course has the advantage that it makes it less likely that appeals will follow or will appear plausible. We are however satisfied that the direction that the judge in fact gave was sufficient to meet all of the protective precautions that have since then been identified by this court and by the EctHR. These convictions were not unsafe.

Robert: case to answer on conspiracy?

40. Mr Gold contended before the judge that the only fact that connected Robert to a conspiracy with his parents was the family connexion. That was not enough to found a charge of conspiracy, whatever else Robert might have been guilty of. We agree with the section 31 judge in not giving permission for this ground to be pursued. The question is whether there was a case to answer. The similarity of behaviour between the family members, and in the case of Robert the very large sums of contaminated money found in the safe at his home, cannot just be ignored, and calls for an explanation. It would have been simply unreal for the judge to have held that there was no evidence from which the jury could infer the conspiracy alleged.

Sentence

41. Robert and Stephen seek to renew the applications for permission to appeal against sentence that were refused by the section 31 judge. The main thrust of both of their submissions was disparity between their sentences and the sentence imposed on Sean. That had no substance whatsoever in the case of Stephen, who in fact received less than Sean, despite the fact that he was guilty of possessing the proceeds of drug trafficking, an offence quite as serious as conspiring to supply; and had, astonishingly, been involved in a second incident of possession after the police had originally intervened. As to Robert, disparity between sentences for the same offence, when the index sentence cannot be criticised in itself, will only be a ground of appeal if the difference is so striking as to give rise to a serious sense of injustice. In this case, the sentence imposed on Robert, for substantial involvement in trafficking in heroin, in a case where he did not enjoy the mitigation of a guilty plea, was, to put it at its lowest, very far from excessive; and the difference between his sentence and that of Sean was far from sufficient to bring into operation the principle just set out. These applications are dismissed.
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LORD JUSTICE BUXTON: The court does not deem need to certify a point of law of general public importance in this case, its view is that the point raised is adequately covered, indeed fully covered, in the judgments in this court in the case of Betts and Hall.

In regard to the matter raised in relation to paragraph 38 of the court's judgment, the court ventures to observe that if paragraph 38 is read in the context of paragraph 36 it will be seen that the court has properly covered the matter referred to.