England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2 Monday, 23rd February 2004

1. MR JUSTICE NEWMAN: On 1st September 2003 the appellant was sentenced in respect of his guilty plea, which he had entered earlier, to the importation of cocaine from Jamaica. He was sentenced to seven years' imprisonment.
2. Having regard to the quantity imported, namely, 1.955 kilogrammes of pure cocaine, having a street value of a little less than £150,000, there is no complaint about the period of imprisonment to which he was sentenced. Indeed, it could be regarded as a sentence at the lower end of the scale for an offence of this sort. It was no doubt driven by the judge's proper regard to some strong personal mitigation which was presented to him. The learned judge, however, made another order which is the subject of the appeal. That is, he imposed a travel restriction order for 15 years under section 33 of the Criminal Justice and Police Act 2001. A travel restriction order operates from the date of a prisoner's release.
3. This case provides this Court with an opportunity to make some general observations about the exercise of the power conferred by section 33. As has been observed, there is an absence of either reported cases or guidance in respect of this particular jurisdiction. With that in mind it is necessary to refer to the material parts of the legislation.
4. Section 33 confers a power to make a travel restriction order where:

"(a) a person ('the offender') has been convicted by any court of a post commencement drug trafficking offence;

(b) the court has determined that it would be appropriate to impose a sentence of imprisonment for that offence; and

(c) the term of imprisonment which the court considers appropriate is a term of four years or more."

5. Subsection (2):

"It shall be the duty of the court, on sentencing the offender --

(a) to consider whether it would be appropriate for the sentence for the offence to include the making of a travel restriction order in relation to the offender;

(b) if the court determines that it is so appropriate, to make such travel restriction order in relation to the offender as the court thinks suitable in all the circumstances (including any other convictions of the offender for post-commencement drug trafficking offences in respect of which the court is also passing sentence); and

(c) if the court determines that it is not so appropriate, to state its reason for not making a travel restriction order."

6. Section 33(3) defines a travel restriction order in this manner:

"A travel restriction order is an order that prohibits the offender from leaving the United Kingdom at any time in the period which --

(a) begins the offender's release from custody; and

(b) continues after that time for such period of not less than two years as may be specified in the order."

7. It is not necessary to set out the section, but it is important to note that section 35 provides for the revocation and suspension of a travel restriction order. The regime for suspension is specifically provided for in some detail. It arises in circumstances where compassionate grounds exist for the suspension to be lifted.
8. The discretion, as it will be seen from what we have said, is conferred in broad terms. As to its length there is a minimum of two years, but there is no maximum. Notwithstanding its broad ambit general principles govern the exercise of the discretion. It must be exercised for the purpose for which it was granted and proportionally. As to its purpose, it is plain that it is not intended to be a substitute for the appropriate period of imprisonment to which the circumstances of the offence give rise. Its purpose, and undoubtedly a very important public interest is served by this legislative provision, is to prevent or reduce the risk of reoffending after the defendant's release from prison. It is not confined to importation cases, see section 34, but plainly by their facts such cases are likely to be most apt for the court to consider an order.
9. It is also worth reminding those who sentence in this sphere that section 33(2)(c) requires that if the court determines that it is not appropriate to make an order, it should state its reasons for not doing so. It is to be noted that the subsection provides that it is the duty of the court on sentencing an offender to consider the imposition of such an order.
10. It seems to us that the mere fact that a defendant has imported drugs will not necessarily give rise to the risk that when he has served his sentence he will abuse his freedom to travel by engaging in the activity again. One can suggest, by way of example, a one-off importation by a returning holiday maker in a non-commercial quantity. A large importation, having sophistication, from a country well-known to be a source of supply would obviously give rise to different considerations. An established pattern of travel between one or more foreign drug sources with the likelihood that a network of contacts in the trade would have been established would be another.
11. It is unrealistic, if not impossible, to set out the broad range of facts which are likely to arise in individual cases. Suffice it to say, that the starting point should be a careful consideration of the circumstances of the offence and of the offender with a view to making a realistic assessment of the risk which arises from the facts of the case.
12. Assuming that a risk has been identified, and a need for an order arises, the principles of proportionality and fairness require a balanced approach to the length of the restriction to be imposed. A restriction on a person's freedom to travel is, as has been pointed out in the skeleton argument presented for this appellant, a restriction on a significant aspect of modern life. It is not to be taken away from a person for a number of years unless there are grounds for doing so. It cannot be for less than two years. It could in many cases affect his right to live and work abroad, to visit his family and so forth. That is a matter to which the court will wish to have regard. But having said that, we must emphasise that the weight to be given to such factors, when they are present to be taken into account, is to a significant degree, affected by section 35, which provides for the revocation and suspension of a travel restriction order. In our judgment the legislature must have contemplated that an order of this sort could affect an individual so as to prejudice his future employment and his personal life. Such prejudice must be regarded as being the contemplated and necessary consequence of the imposition of an order for which the statute provides a specific regime of relief.
13. In this instance the learned judge imposed 15 years. It has been pointed out, with some force, that, having regard to the age of the appellant, it follows he will be aged 50 before he will be allowed to travel anywhere in the world.
14. Having regard to the impact of the restrictions, the length of an order should be measured to the defendant. Some factors can be enumerated by way of example; his age, his previous convictions, the risk of reoffending, which can be assessed generally, and of course, as we have mentioned, family contacts, employment considerations and so forth. The length should be that which is required to protect the public in the light of the assessment of the degree of risk which is presented by the facts. But, as we have said, it should be tailored to the defendant to such a degree as the court feels able when balanced against the risk. It is to be noted that the drug trade is truly international. It is no doubt for that reason that the provisions of this Act, and in particular section 33, do not of themselves contemplate a travel restriction order which is linked to only certain parts of the world where the drug trade flourishes with its great greatest potency.
15. So far as this case is concerned, it has to be said that the judge adopted a very full and fair procedure. His approach should be followed. He indicated to counsel that he intended to consider making an order and he invited counsel to take instructions from the defendant as to any particular matters which could be relevant to his decision. In response, counsel said:

"Mr Mee does not wish to raise anything specific at all with the court. Clearly it is a matter very much for your Honour's discretion. Mr Mee has absolutely no intention of reoffending and no submissions to make to the court as to the length of the period. May I simple say it is a lengthy sentence and ask that your Honour keep the period to a minimum."

In effect a submission as to proportionality.

16. The learned judge said this:

"There will be in addition to your sentence a travel restriction order for a period of 15 years. That is you are not to travel out of the United Kingdom for 15 years."

17. We suggest that unless the exchanges between counsel and the court clearly disclose why the need to make an order arises and, secondly, why a certain period is to be imposed, the judge should give succinct reasons explaining why he is imposing the order and his reasons for the period he imposes. In this case one is unable to see why the judge concluded 15 years was an appropriate period.
18. With that said, we turn now to the facts of this case in order to apply some of the general principles which we have set out. The facts are that on 4th May 2003 the appellant was stopped by Customs officers at Heathrow Airport after he had arrived on a flight from Jamaica. After routine questioning, he was allowed to reclaim his luggage. As he passed through the green channel he was stopped again. His luggage was searched and seven fruit juice tins, which tested positive for cocaine, were recovered. He was then arrested. We have already set out the consequences of the examination of the contents of the tins.
19. When he was interviewed, he said he had purchased the tins of fruit juice in a supermarket on the last day of his stay Jamaica. He said he would not have brought them into this country if he had known they contained cocaine. He could not explain why somebody he did not know him would give him the tins.
20. We have a transcript of the interviews and questioning of the appellant. It is apparent that he was asked initially, "How long have you been away?" He replied:

"Originally two weeks but I met a girl and stayed out there.

Question: So you had to buy a new ticket?

Answer: Yes, it cost £600."

21. He suggested he had stayed there for some three months as a result of meeting with a girl out there. But the position was otherwise, as was disclosed by his tape recorded interview which was to the following effect and, so far as the issues on this appeal are concerned, significantly to the following effect. He said that he had originally gone to Jamaica in February for a two week holiday. That he had met a girl and they did have a romance. That he had then returned to the United Kingdom and when he was back in the United Kingdom he made contact with her again. He then decided to fly back to Jamaica. The facts disclosed that he had flown back to Jamaica only a few days before his return when he was arrested; the difference between the Thursday and the day when he was arrested. He had also bought a ticket in Jamaica for £600 and made no attempt to change his original homeward bound ticket.
22. He said in interview that he did not say he had been away for three days because he did not want to arouse any suspicion. Then a little later in the interview, having informed the interviewer that he had been ill and as a result of illness had received approximately £10,000 from his salary whilst being off sick, he said that he wanted to use this money for international trips once a year. It was apparent from the documentation, and from what he said, that his trip to Jamaica had not been his first overseas trip. He had been to Honolulu via the mainland of the United States in the prior year.
23. On sentencing it is plain that the learned judge, in our judgment correctly, concluded that he had deliberately travelled to Jamaica simply to import drugs having established a connection there earlier in the year. He observed to the appellant:

"You did not have the presence of mind or the strength of character to go to the police and say to them, 'Look, somebody is sending me off to Jamaica in order to import drugs.' you could have done that, because you had already been to the police to speak to them about the person supplying the drugs to your brother."

24. Plainly the fact that he had returned to the United Kingdom was a matter which the judge rightly focused on to consider the extent to which he was under pressure to return to Jamaica, as opposed to making a deliberate commercial decision to do so for the purposes of importation.
25. It would have been preferable, as we have observed, if the judge had given his reasons for selecting a period of 15 years. In our judgment the facts relevant to his decision which can be identified are as follows. (1) The deliberate nature of the journey. He cannot be regarded as a one-off holiday maker. (2) The fact that he had established a connection in Jamaica at an earlier date and travelled pursuant to such a connection. This was not a romance, but a decision to trade. (3) The deliberate and sophisticated nature of the importation itself. There was an obvious need for contact in this country where the tins could be disposed of. It thus meant that at both ends of the trade the appellant had contacts. (4) His unsatisfactory answers in interview in connection with the true circumstances surrounding his activity and his journey. (5) The suspicion under which his journeying elsewhere obviously then fell and had to be considered.
26. Mr Wilken, who has appeared for him in this Court, has not attempted to suggest that the judge's conclusion that the facts disclosed a risk from future travel was wrong. The only question arises in connection with the period of the restriction. In that regard all the circumstances we have indicated need to be taken into account.
27. There was personal mitigation which pointed to a reduced risk of general reoffending. There were references which were impressive. There was the previous good character of this appellant and there is a letter from the appellant to the sentencing judge, which this Court has seen, and which can properly be regarded as an intelligent, articulate and responsible letter.
28. All these matters, when taken into account, point to this being a case where there was a risk of reoffending by reason of the facts as we have analysed them, but the risk could be regarded as being towards the lower end of the scale. It is also a case where we are satisfied the public interest called for a significant period of restriction, namely a period markedly longer than the minimum period provided for by the statute.
29. Having regard to all the factors which we endeavoured to outline we have concluded that an appropriate order by way of travel restriction in this case should have been five years. The order of 15 years is quashed and for that period a period of five years will be substituted.