England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		5th December 2006

1. MR JUSTICE MCCOMBE: On 2nd September 2005, in the Crown Court at Luton, the appellant pleaded guilty to count 3 on an indictment charging conspiracy to supply a controlled drug of class C, namely cannabis, and guilty on rearraignment to counts 1 and 2, namely transferring criminal property and conspiracy to supply a controlled drug of class C, again cannabis. On 13th October 2005 he was sentenced to five years' imprisonment concurrent on counts 2 and 3 and three years and four months' imprisonment concurrent on count 1. The total sentence was, therefore, one of five years' imprisonment.
2. The appellant appeals against that sentence by leave of the full court.
3. The facts which gave rise to these charges were as follows. On the evening of 20th July 2004 Customs officers observed a Mercedes motor vehicle, being driven by the co-defendant Dooner, and a Vauxhall motor vehicle arrive at a car park. The applicant got out of the Mercedes and engaged in conversation with the driver of the Vauxhall. The Vauxhall driver then opened the boot of his car and the applicant took out a carrier bag and a holdall which he placed in the Mercedes. He got back into the Mercedes, but before Dooner could drive off the officers moved in and arrested the three men. The bags which had been placed in the Mercedes were found to contain some £216,640 in cash, together with a quantity of euro currency also. The money was mainly in denominations of £10 and £20 notes. Analysis of notes from the carrier bag revealed a high level of contamination with a constituent of cannabis. In interview the appellant stated he collected the bags at Dooner's request as a favour, but had no idea what the bags contained. That gave rise to count 1.
4. The matters giving rise to counts 2 and 3 were as follows. On 22nd July 2004 the police executed a search warrant at some premises in Milton Keynes. The search indicated that those premises were a major centre for the storage and distribution of cannabis with a turnover of hundreds of thousands of pounds.
5. The applicant pleaded guilty on rearraignment before the commencement of the trial involving his co-defendants Dooner and Jones. There was a basis of plea prepared in respect of this appellant Taylor. That basis of plea was not accepted by the learned judge in circumstances to which we shall return.
6. The basis of the plea maintained that from time to time at his friend's request (namely Dooner's request) the appellant would drive and fetch, and on fewer occasions deliver, bags which he believed contained money which he suspected was connected with crime. This occurred, according to the basis of plea, on a total of five occasions of which two were delivering money and the rest were collecting it. It was said that this was not a frequent occurrence and that these incidents had been spread over a period of about 15 months. For undertaking the work the appellant would be paid either some £100 or £200 in cash.
7. The basis of plea also indicated in relation to the cannabis offences that he had been involved with cannabis in two different ways. First, so far as delivery was concerned, he had on occasions, about once a month, been involved in the delivery of about a kilogramme of herbal cannabis. On about ten occasions he had been given a bag containing the cannabis and told where to deliver it. Those deliveries had stopped around Christmas 2003. Again he had been paid about £100 for each delivery.
8. It was also contended that around the same time in 2003 he had started purchasing quantities of cannabis to supply to friends. He purchased on each occasion about a kilogramme of the drug. That had occurred on about two occasions. He said he had never sold drugs to members of the public.
9. The basis of plea dealt with references to the appellant in the documentary evidence. It also dealt with his finances and his bank statements. It was his case that for his driving to deliver cannabis, or deliver or collect money, he had simply been paid sums which he described as "beer money". In total he would have received no more than £2,000 to £2,500 over the period of about a year.
10. The prosecution produced a response to the basis of plea in which it was stated that the Crown did not accept what was contended. In the circumstances, counsel for the appellant asked the judge, His Honour Judge Foster, to hold a Newton hearing into the appellant's involvement if the plea basis was not to be accepted.
11. The learned judge gave a short ruling in which he gave his reasons for not holding such a hearing. He considered that it would be inappropriate in the circumstances. He mentioned that he was called upon to sentence against the background of a trial which had lasted some weeks. He referred to the judgment in this court in the case of Patrick Smith (1988) 10 Cr App R(S) 271 and concluded that he was not obliged to sentence one defendant on the basis of the facts advanced by him and to sentence the others on the basis of totally disparate facts advanced by them. He referred in his judgment to a passage from the headnote of the report of the Court of Appeal in the Smith case to the following effect:

"In deciding what the factual situation was he [that is the judge] is not bound by the rules of admissibility which would be applicable in the trial of the issue of guilt or innocence. He can take into account the contents of witness statements, or depositions; he can take into account evidence he may have heard in the trial of the co-defendants. He must, however, ... bear in mind the danger that self-serving statements are unlikely to be true ..."

12. However, in making that quotation the learned judge omitted the following passage:

"... that such statements have as a rule not been subjected to cross-examination and that the particular defendant whom he is sentencing may not have had the opportunity to put forward his version of events. The last danger can be avoided by giving the defendant the opportunity to give evidence if he wishes."

13. In sentencing the appellant the learned judge indicated that the basis of plea was rejected. He considered that certain aspects of the evidence, in particular the evidence relating to the monitoring of mobile telephone conversations and the surveillance evidence, showed that the appellant and Dooner were jointly at the top of this enterprise.
14. Before this court Mr Bennathan QC, who appears for the appellant, as he did below, advances a short ground of appeal. That is that the learned judge erred in law in refusing to allow this appellant to call evidence to support his basis of plea. He contends that in those circumstances the appellant's sentence should now be reduced to take account of that basis of plea, to reflect his lesser role in the conspiracy and to draw a distinction between him and the co-accused Dooner.
15. Amplifying the point in a helpful skeleton argument, Mr Bennathan submits that reported cases require the judge, if such be the case, first, to make it clear to the defendant why his account is not accepted and, failing resolution of the issue, secondly, to deal with the matter in one of three ways: (a) to put the issue before the jury (obviously not appropriate here); (b) to hear evidence himself and resolve the issue; or (c) to hear no evidence but to listen to submissions; but (d) if this is the course followed and substantial conflict remains, it is the defendant's version, so far as possible, that must be accepted.
16. Mr Bennathan accepts that in some cases a judge is able to reject a basis of plea rendered by a defendant as being manifestly absurd, but, he submits, the present case cannot be within that category for a variety of reasons. These were, first, the basis of plea was full and detailed and dealt with virtually all the prosecution evidence. Second, admissions were made of some activities unknown to the Crown. Third, the prosecution accepted that the appellant played a lower role in the conspiracy than the co-accused Dooner, contrary to the judge's ultimate conclusion. Fourth, documents produced to the judge suggested that there was a legitimate source for the major sum paid into the appellant's bank account during the time of the conspiracy. Fifth, the judge did not tell the appellant he was rejecting his basis of plea as manifestly absurd. Sixth, if he was going to take that course, he should have put counsel on notice to enable him to deal with the point. We note that it was in this last respect that reliance was placed on the case of R v Underwood [2005] 1 Cr App R(S) 478, particularly at page 484. It was also concern about this last point that caused the Full Court to grant leave to appeal.
17. Mr Bennathan also relied upon Article 6 of the European Convention on Human Rights and in particular Article 6(3)(d) as to the right to "obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses again him; "he" and "him" referring, of course, to the defendant. He relied upon the case of Papageorgiou v Greece (2004) 38 EHRR 30. Mr Bennathan's submission in his written argument was that the proper course in this case, if we are with him so far on his grounds of appeal, is to reduce the appellant's sentence to reflect the facts accepted in the basis of plea.
18. Mr Griffiths for the Crown, on the other hand, submits that this was a case where the basis of plea was manifestly false. It had been so submitted in the Crown's response to the basis of plea submitted at the sentencing hearing and in the opening of the facts to the learned judge. That is certainly correct. When the Crown made that point in opening the learned judge said this (page 6C and D):

"I say this now for the benefit of those representing Mr Taylor and Mr Barton -- my own view is, having presided over the trial, that I too do not accept those bases of plea, and I shall invite their respective counsel to deal with my view of that in their mitigations."

19. During the course of mitigation Mr Bennathan invited the judge to hold a Newton hearing. The judge's reaction to that submission was this:

"I have given consideration to whether a Newton hearing might be appropriate. It seems to me I, having presided over a trial that went into five weeks (albeit not five weeks of evidence), and having heard all the evidence in the case, I, as a matter of law, am entitled to take a view on the basis of plea and come to a conclusion based upon the evidence I heard at the trial. Therefore, a Newton hearing would be inappropriate. It seems to me, looking at the law point, the only situation in which that would not be appropriate is where I am relying upon self-serving statements by co-defendants -- and that I am not doing."

20. It is clear from that course of proceeding that, if the judge had reached the conclusion that evidence was unnecessary because the basis of plea was absurd or manifestly untenable, he did not in fact explain why he had reached that conclusion. He did not say why it was, if such was the case, that the evidence at trial had undermined the basis of plea to render it untenable.
21. We think that this might well have been one of those cases where the judge could have resolved the matter against the appellant without having heard further evidence. On the basis of plea as tendered the appellant had given a lying account about his involvement on no less than three occasions. There was ample material in the telephone evidence to reject the full force of the appellant's basis of plea. Moreover, he had on his own account played a very substantial role in the conspiracy by way of money transfers and delivery of drugs, while contending that he was paid only paltry sums of money for the risk and trouble that that entailed.
22. In such cases judges may well be able to take a robust approach to a defendant's expressed desire to give evidence. In this case, however, that situation was not made as clear as if might have been by the judge. Counsel may well, therefore, have been in doubt as to the proper basis for mitigation. In such circumstances judge should, in our view, deal with the arguments on full submissions from both sides and give a reasoned decision so that the basis upon which mitigation is to take place can be entirely clear to all concerned. That having been said, the Crown was accepting that the appellant played a lesser role than Dooner in this conspiracy, whereas he was treated by the judge as his equal, albeit with suitable credit for his plea of guilty being given.
23. In the circumstances we think that, even if it was inevitable that the basis of plea could not be accepted in its entirety, some distinction had to be drawn between the two defendants. That did not happen. Both were found to be "chief executives and major shareholders" in the enterprise. In all the circumstances, we consider that the appellant's offending and his role in the conspiracy can be properly reflected by a total sentence of four years' imprisonment in substitution for the five years imposed in the Crown Court. We would therefore reduce the sentence of five years concurrent imposed on counts 2 and 3 to sentences of four years concurrent on each, leaving the sentence on count 1 undisturbed. To that extent this appeal is allowed.