England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Thursday, 29th June 2006

1. LORD JUSTICE LATHAM: On 14th May 2003, at the Crown Court at Southwark, following a retrial, this appellant was convicted on a count of being knowingly concerned in carrying, removing, depositing, harbouring, keeping or concealing controlled drugs, in this case heroin, and was sentenced to 13 years' imprisonment.
2. The facts were, for the purposes of this appeal, as follows. In October 2002 the appellant was stopped when driving his car in which were found five one kilogram packets of heroin. His house was then searched: 22 one kilogram packets of heroin were found there. The drugs had a very substantial street value. The appellant always accepted that he was guilty of the offence of harbouring those drugs; and he identified two men in particular, right from the start, as being the people for whom he was keeping those drugs, Tunjay Kubilay and Michael Watson. Those two men were subsequently also arrested; but they were bailed and absconded. Tunjay Kubilay to this date remains a fugitive from justice, as we understand it.
3. The consequence was that the appellant was tried by himself. He pleaded not guilty on the basis that, although he admitted the substance of the offence, he had been acting as the keeper of these drugs under duress. That was the sole issue for jury. At the first trial the jury disagreed, but then at the second trial he was convicted. It was in those circumstances that he was sentenced to the substantial sentence of imprisonment against which he now appeals.
4. His appeal arises out of what happened after the trial. Michael Watson was apprehended during the course of 2003. Customs officers then approached this appellant in prison and asked whether or not he would be willing to give evidence in the trial of Michael Watson. The appellant sensibly took legal advice but then agreed to give evidence and did so. He did so in accordance with the account that he had always given about his involvement in the drug dealing in question. At the end of Michael Watson's trial, Michael Watson was convicted. The prosecution have made it plain that they do not consider that he would have been convicted without the evidence of this appellant. The judge at that trial said:

"In my judgment, it took considerable courage on the part of [the appellant] to give evidence in this case."

5. It is submitted that this court should consider a substantial discount on the sentence imposed by the judge by reason of the courage that he showed in giving that evidence. There is no doubt as to the general principle in relation to those who are prepared to give evidence, indeed information, in relation to criminal activity by others. The courts have over the years made it plain that those who are prepared to assist the authorities in that way are entitled to discounts, depending on the quality of material that is provided and the nature of the way in which it was provided, and that the discount can be as high as a discount of two-thirds. The amount of the discount is dependant upon both the quality of the material which the defendant provides and, a very important factor, the extent to which he was prepared to provide it, despite the fact that that could create danger both for himself and his family.
6. In the present case, from the material that we have and in particular from the concessions made by the prosecution, it is quite apparent that the assistance that was given by this appellant was at the highest end of the spectrum. Not only was he prepared to give information, he was prepared to give evidence. His evidence was critical for the conviction of Michael Watson. The fact that it took courage for him to give that evidence was acknowledged by the judge, as we have already said; and the material that we have makes it plain that the threats to him and his family were real and indeed may well be continuing.
7. In those circumstances, it seems to us that this is a case where, if it is possible for the court to do it, it should provide a very substantial discount to this appellant. There is an apparent difficulty created by the case of R v A and B [1999] 1 Cr. App. R (S) 53, [1998] EWCA Crim 3529 where the then Lord Chief Justice, Lord Bingham, indicated that, where a defendant has denied guilt and has then been convicted and sentenced, he cannot expect this court to intervene in what was otherwise a proper sentence by thereafter deciding to give information to the police. That general principle, in so far as it can be said to be a principle, was acknowledged by this court presided over by me in R v K [2003] 1 Cr App R 22, [2002] EWCA Crim 927. In both judgments the point is made that this court is, generally speaking, a court of review and, accordingly, that material which arises after the sentencing judge has imposed a sentence will not normally permit an appellant to reopen what was otherwise, at the time of sentencing, a proper sentence.
8. This is undoubtedly the general rule. But the powers of this court are contained in section 11(3) of the Criminal Appeal Act 1968, which provides as follows:

"On an appeal against sentence, the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may

(a) quash any sentence or order which is the subject of the appeal, and

(b) in place of it pass such sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence

But the Court shall so exercise their power under this subsection that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below."

9. It is plain from that section that, despite the general rule, the court is not precluded in exceptional cases from taking into account material which has arisen subsequently. We would wish, however, to reiterate that the remarks made by Lord Bingham in relation to defendants who deny guilt and subsequently decide to improve their position by giving information remain valid. But that is not this case. Quite the opposite. This is a case where the appellant has maintained the same account as to the substance of his involvement in the drug trading in question right from the beginning and carried it through into the evidence that he gave at the trial of Michael Watson.
10. It seems to us that this is a paradigm case for this court to take the view that it can and should reflect what occurred after sentence by making an appropriate reduction in the sentence that was imposed. As we have already indicated, the authorities suggest that anything up to a two-third reduction is appropriate depending on the quality of the material and the circumstances of the case. From what we have already said, it will not be surprising that we consider that we should reflect the appellant's evidence here with a very substantial reduction indeed. We accordingly reduce the sentence of 13 years' imprisonment to a sentence of five years' imprisonment. It may be that that will result in his relatively early release.