England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		Tuesday 20 March 2007

LORD JUSTICE SCOTT BAKER: I will ask Mr Justice Openshaw to give the judgment of the court.

MR JUSTICE OPENSHAW:

1. On 21 July 2006, in the Crown Court at Cardiff, His Honour Judge Morris sentenced the appellant Paul West to a total of four and a half years' imprisonment following his pleas of guilty to two counts on the indictment alleging against him on count 1 a conspiracy to supply heroin, a Class A controlled drug, and on count 2 a conspiracy to supply cocaine, a Class A controlled drug. The judge gave a direction under section 240 of the Criminal Justice Act that the full time which he had spent on remand should count towards the sentence. The appellant appeals against those sentences following the granting of leave by the full court.
2. The facts were as follows. In the autumn of 2005 the police ran an undercover operation targeting drugs dealers in Cardiff. The investigating officers identified two houses in the Splott area of the city which were being used to distribute drugs. It appeared to the police that the system which was being operated was that people from outside Cardiff were being brought to these houses to do the actual distribution.
3. On 22 November undercover officers rang one of the telephone numbers which they had and which appeared to be actively in use at this delivery centre. They ordered some crack cocaine. As a result of what they heard over the telephone they went to an agreed meeting place near one of these houses where they met the appellant who supplied them with drugs for £20. On the afternoon of that same day, two other undercover officers contacted one of the other numbers. Again a meeting was arranged and again a supply was made by the appellant of a wrap of heroin and a wrap of crack cocaine. The next day, following another call, the appellant supplied both sets of officers with drugs at separate times. On 24 November the appellant again made a further supply. Following that, at about noon search warrants were executed at these addresses. The appellant was arrested. He was found to be in possession of the bank notes which the undercover officers had passed to him shortly beforehand. Seventeen wraps of crack cocaine and three wraps of heroin were found hidden in the house. The appellant was found to be in possession of £667 in cash. A number of mobile phones were found in the house. It was plain that these had been used to make contact with abusers on the street who were ready and willing to buy the drugs from him.
4. On 24 May 2006, when the appellant had originally entered his plea of guilty to the indictment, defence counsel had told the judge that a written basis of plea would be lodged in the course of the next few days. In retrospect it can be seen that it might have been better had that been done at the time since it would have given everyone the chance then and there to reflect upon the best course of action. A written basis of plea was eventually sent to the Crown Prosecution Service. That document (at least in the version before us) is unsigned and undated. It reads as follows:

"1. The defendant met a male person known as G whilst working in the construction industry in Birmingham and whilst socialising with mutual friends in the Jamaican community.

2. The defendant agreed to sell a motorbike to G for the sum of £500 and was paid £150 by G. He then left the Birmingham area. The defendant subsequently saw him in McDonald's food outlet in Birmingham in November 2005 and G agreed to repay the monies. However he advised the defendant he would have to go to Cardiff to get those monies and offered to find the defendant employment if he accompanied him to Cardiff.

3. The defendant upon arriving in Cardiff was told that he could live at 2 Inchmarnock Street, Splott, Cardiff [one of the houses which the police had under observation] and he was told at the time that the only work available for him was supplying controlled drugs. G offered him the return of £350 and in addition stated he would provide for him whist he remained in Cardiff and also offer further work if he wished to remain in Cardiff.

4. The defendant will maintain that he intended to remain in Cardiff for no more than one week during which time he was assured of the return of his monies and at that point he would return to the Birmingham area where he lived at the time with his girlfriend and had a number of friends and family.

5. The defendant accepts that between 21 November 2005 and the date of his arrest he supplied heroin and cocaine on a number of occasions. The defendant also accepts that he became aware that G was using other persons to supply controlled drugs but at no time did he come to know any of these persons, nor did he meet them to the best of his knowledge."

5. That basis of plea was sent under cover of a letter from the defence solicitors dated 30 May 2006. That letter was misleading in that it stated:

"We understand that His Honour Judge Morris has invited the Crown Prosecution Service to agree the basis of plea as quickly as possible and look forward to hearing from you in that regard."

Reading this letter, and unwisely accepting it as more or less a direction to agree that basis of plea, a member of the CPS staff is said to have agreed to it without asking counsel who had been retained to prosecute all the cases arising out of this operation. That was unfortunate. When in due course prosecution counsel saw the basis of plea, he immediately realised that it was in fact unacceptable since it claimed for the appellant only a minor role, whereas it was the case for the prosecution that he had been one of the organisers. Therefore when the matter came back for sentence on 21 July, the prosecution sought to persuade the judge to hold a Newton hearing. Although we have no transcript of this exchange, we are told that the judge decided not to do so. He said that he could come to his own conclusion on the material before him, and that is precisely what he did.

6. When sentencing the appellant the judge said as follows:

"The evidence in this case reveals that .... you were recruited from elsewhere in this country to come to Cardiff to manage a drugs distribution operation from two premises in Cardiff. You were recruited to live there and I am satisfied upon the available evidence that your part in the distribution exercise was effectively to control those two houses as stockholding warehouses for heroin and cocaine. I accept straightaway that you were not the main organisers of this distribution chain, and you may very well not know those who may never be brought to book, who were behind the setting up of this whole operation. I accept again that you were but employees, but you were employees in a position when you could, from time to time, direct others as runners or delivery boys, following the receipt of telephone orders, which task you also carried out from time to time yourself, when the need arose. You did so our of purely commercial motives, for easy money in hand, with no questions asked and without any tax implications or liabilities."

It seems to us that the judge had decisively rejected the basis of plea and in so doing we think he was in error. He should have held a Newton hearing. The appellant should have been invited to give evidence. If he accepted that invitation, he could then have been cross-examined upon the improbable assertions which he made and the judge then could have drawn such inferences as he thought fit. Since none of this was done, it seems to use that he should have sentenced the appellant on the basis of the plea entered.

7. In the circumstances the appeal must be allowed. We will substitute a sentence of three and a half years' imprisonment to correspond with the sentences passed upon the other defendants who played similar roles to that admitted in the basis of plea.
8. This case illustrates yet again the critical importance of judges following the guidance given by the Court of Appeal in R v Underwood [2005] 1 Cr App R(S) 478, that is to say that the basis of plea should be put into writing and it should be endorsed with the observations of the prosecution and indeed of the trial judge. If that had been done in this case the serious disputes of fact would have been exposed. We have little doubt that a Newton hearing would have been directed and that these problems would have been avoided.

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