England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT NEWCASTLE
MR JUSTICE SIMON

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/12/2009

The Lord Chief Justice of England and Wales:

1. The appellant is now 41. He is a career criminal.
2. On 5 March 2007 in the Crown Court at Newcastle, after the jury had heard the evidence of Derek Blackburn, the appellant pleaded guilty to murder and conspiracy to supply controlled drugs. He was sentenced to imprisonment for life. On 27 April the minimum term was specified at 26 years. A sentence of 7 years' imprisonment concurrent was imposed on the drugs conspiracy. Appropriate orders were made in relation to time spent on remand.
3. On 14 November 2007 the appellant entered into a statutory agreement with a specified prosecutor pursuant to section 74 of the Serious Organised Crime and Police Act 2005 (the 2005 Act). Following a referral to the Crown Court, on 24 July Simon J reviewed the sentence and reduced the specified minimum term by 5 years. In accordance with the relevant requirements the term was expressed as one of 27 years with a discount of 5 years under the statutory agreement with a further reduction of 1 year for the guilty plea, again less the time already spent in custody. The sentence for the drugs conspiracy was unaffected.
4. The application for leave to appeal against the reviewed sentence was referred to the full court by the Registrar. After hearing the argument we granted leave, but dismissed the appeal. The question for decision is whether the 5 year reduction in the minimum term is sufficient.
5. The facts of the case are stark. On 24 May 2006 David Rice was murdered in a gangland execution. The appellant was deeply involved in and, as he admitted by his eventual plea, party to the killing. He made arrangements with Mr Rice to meet him in a car park in South Shields. As he was waiting there, a black Ford Mondeo pulled up next to him. There were two front seat occupants in the car, both wearing balaclavas. The driver was the appellant. The passenger was a man called Allan Foster. As Mr Rice was sitting in the car, Foster raised a semi-automatic handgun fitted with a silencer and shot him a number of times. Mr Rice tried to escape. He scrambled across to the passenger side of his car and opened the door. He was already badly injured. Foster left the Mondeo, walked around the back of the car which had been occupied by Mr Rice, and shot him again and then, at point blank range, shot him through the head to make sure he was dead. The appellant drove the Mondeo away, and after a short distance the two men abandoned the car, setting it on fire to destroy any evidence. They then transferred to a waiting orange van and were driven away. The driver was Blackburn.
6. Mr Rice was 42 years old. A large part of his income was derived from working in and with drugs. He and the appellant worked for Foster, who was himself very heavily involved in drug crime. Foster had met the appellant while they were both in prison, serving sentences for conspiracy to supply drugs, and on their respective releases they worked together in the importation and distribution of drugs. Mr Rice had a lesser role, collecting drugs from Foster, or Foster's partner, and acting as part of the distribution chain, and then returning the proceeds of drug supply to Foster. In the months before Mr Rice's death Foster appeared to believe that Mr Rice had told Foster's partner that Foster was involved with another woman, and he began to distance himself from Mr Rice.
7. On the morning before the shooting the appellant was in contact twice with Mr Rice. Foster had left the United Kingdom on 4^th May. He was living in Majorca. In the morning of 24 May on a flight from Tenerife he returned to this country using a false passport. The appellant met him, and the two travelled to Sunderland together. On the afternoon of the shooting Mr Rice had asked a friend to help him count £6,000 in cash which represented part payment towards an outstanding drugs bill owed by him to Foster. He said that he was meeting the appellant. At 3.43pm there was a telephone call from the appellant to Mr Rice. At 3.50pm Mr Rice called his friend asking him to bring the money. He then drove to the car park, and after waiting for Foster's arrival, was shot 8 or possibly 9 times. The £6,000 in cash he had taken to the scene, together with another £2,000 was still in his vehicle.
8. The appellant was placed under police surveillance. He was arrested 2 days later. He produced an alibi for the moment of the killing. He denied any involvement in the murder, suggesting that he was a good friend of Mr Rice. In the meantime Foster left the country and went to Spain.
9. Police inquiries led them to identify the driver of the orange van. Initially Blackburn claimed to have sold his van to two travellers and denied knowing anything about the killing. However he was arrested on 3 August, and eventually confessed to having been involved with Foster in criminal activity in April 2006. On the morning of 24 May he had been telephoned by Foster. Foster asked him to produce an orange van to help shift some drugs. He would be paid £100. He drove to Sunderland. He met Foster and the appellant. They told him to wait while they collected the drugs. After waiting for about half an hour, two masked men, whom he recognised as Foster and the appellant ran back to the van shouting to him to "drive, drive, drive". Foster was carrying a handgun. The appellant said to Foster that he had "got him in the head".
10. Blackburn subsequently pleaded guilty to assisting an offender and being involved in the supply of controlled drugs. He entered into a statutory agreement under section 74 of the 2005 Act. The full circumstances are outlined in R v P: R v Blackburn [2008] 2 Cr App R (S) 5. We shall return to the judgment but, following the proceedings, Blackburn not only gave evidence against this appellant, without which he would not have been prosecuted, let alone convicted of murder, but his witness statements in three other prosecutions also produced guilty pleas. It is accepted that without Blackburn's assistance, Freeman, who helped dispose of the orange van, and assisted Foster to escape this country after the murder, would not have been convicted. McAuley was Foster's partner in his drug operations. Cole was involved in the importation of drugs on Foster's behalf. The European arrest warrant currently in force in respect of Foster could not have been obtained without Blackburn's assistance. If Foster is brought back to this country, Blackburn will be obliged to give evidence against him.
11. The appellant's position is very different. Before his trial for the murder of Rice he indicated his preparedness to enter into a statutory agreement which involved assisting the prosecution in relation to Foster's involvement in the murder. In the result, when produced from prison to sign the statutory agreement, he declined to be interviewed and refused to sign. The proposed statutory agreement was revoked by the CPS. A further interview with him was arranged on 30 March. During this interview he said that he was unwilling to provide evidence as he was still in fear for his own and his family's safety. However he indicated that he would be willing to provide intelligence in relation to a police officer, DC Jones, who was involved in a corrupt relationship with Foster. The agreement was duly signed on 14 November. What is striking about this statutory agreement is that it is silent about Foster's involvement in the murder of Mr Rice.
12. The appellant subsequently provided a witness statement which formed the basis of his evidence at the trial of Jones. Its effect was that Jones was on a retainer from Foster and provided him with up to date information from police computers on any police matters of interest to him. By the time the appellant was considering entering into the statutory agreement, an investigation into the criminal activities of Jones, for providing information to Foster, was already in hand, with evidence to suggest that he was being paid for provision of such intelligence. Indeed by the time the investigation began Foster had already ended his relationship with Jones. The appellant's evidence therefore did not disrupt the relationship, nor Foster's use of Jones as a source for information. In the result, notwithstanding the appellant's direct evidence that Foster had paid Jones for information, Jones was convicted of providing information to Foster but acquitted of receiving remuneration for doing so. Despite the verdict it was the prosecution's view that the evidence given by the appellant against Jones was truthful. He maintained his account despite strenuous cross-examination and did not appear to exaggerate his evidence. In due course Jones was sentenced to a total of 5 years' imprisonment.
13. The differences between a criminal giving evidence against a corrupt police officer and giving evidence against a murderer who has shot his victim dead, and between the risks to which a criminal is exposed for assisting in the conviction of such a police officer and those faced by an individual like Blackburn, whose activities have led to the conviction of this appellant for gangland execution, as well as other significant convictions, are obvious. Yet the submission on behalf of the appellant proceeds on the basis that in proportionate terms the sentencing discount should be similar.
14. Simon J carefully examined all the essential features of the case. He referred to R v P: R v Blackburn. He identified two points of particular relevance. First, that only "in the most exceptional case will the appropriate level of discount exceed three-quarters of the total sentence which would otherwise be passed and the normal level should continue to be between a half and two-thirds of that sentence. Secondly, the proper sentencing approach is to assess the proper discount for assistance against all other relevant considerations and then further to discount for the guilty plea". He then addressed the reality that the sentence under review was a life sentence for murder with a specified minimum term. This, he held, would have a "significant impact on the appropriate level of reduction. This was because murder was regarded as an "uniquely serious crime", a consideration reflected in the guidance offered by the Sentencing Guidelines Council on the discount for a guilty plea, which in turn referred to the "special characteristics" of murder and the "unique statutory provisions" for starting points. He noted and took account that in relation to any reduction for a guilty plea, "the reduction will not exceed one sixth and will never exceed 5 years".
15. This approach is criticised by Ms Joanna Greenberg QC on the basis that it reflected a distinction in relation to the review of the minimum term following a conviction for murder, and a review of any other sentences, which was not drawn in R v P; R v Blackburn. It is right that no such distinction was identified, no doubt because the issue did not arise. The judgment explained that the first factor in the review process was the extent of the defendant's criminality: by definition the criminality involved in murder, and in particular in the planned gangland murder rightly approached as a murder of a particularly high level of seriousness for the purposes of schedule 21 of the Criminal Justice Act 2003, is very much graver than that involved in virtually any other crime. While there can be no direct mathematical correlation between the discount for a guilty plea in the context of the definitive guideline issued by the Sentencing Guidelines Council, some of the broad considerations identified in the document will normally be relevant to the assessment of the appropriate discount on the sentencing review. Accordingly Simon J was entitled to reflect on this when reaching his conclusion
16. The essential question which then arises is whether the 5 year discount was sufficient. For these purposes Ms Greenberg relied on one sentence at the end of paragraph 41 of the judgment in R v P; R v Blackburn which reads:

"It is only in the most exceptional case that the appropriate level of reduction would exceed three-quarters of the total sentence which would otherwise be passed, and the normal level will continue, as before, to be a reduction of somewhere between one half and two thirds of that sentence."

She argued that the discount allowed to the appellant was plainly nowhere near one half to two thirds. This is correct, but the argument overlooks that paragraph 41 addressed the submission that there might be a case in which a discount would be total, in effect amounting to immunity from punishment. And paragraph 41 itself must be seen in the context not merely of the judgment as a whole, but in particular the passages in the judgment beginning at paragraph 37 onwards, under the heading the Sentencing Decision. The general approach has been established at least since the judgment in Sinfield [1981] 3 Cr App re (S) 258 and repeated in many subsequent decisions in this court. The essential principle is that "no hard and fast rules can be laid down for what, as in so many other aspects of the sentencing decision, is a fact specific decision". That principle holds good in all cases, and in this appeal in particular.

17. It is true that this appellant complied with his statutory agreement. As a result he made a specific contribution to the successful prosecution of a corrupt police officer. On the other hand, he deliberately elected not to enter into a statutory agreement in relation to the possible prosecution of the man who was with him when the unfortunate Mr Rice was murdered. If he had come forward (as Blackburn did) to give evidence against Foster and admitted his own involvement and guilt of Mr Rice's murder, and helped to bring others to justice, and made himself available to bring Foster to justice if that possibility arose, he would have been entitled to seek and would no doubt have obtained a higher discount. As it is he has never signed a statutory agreement relating to Foster. The appellant is a career criminal. He knew exactly what he was doing. He balanced the risks he was prepared to take. His level of cooperation was completely calculated: it was very far from full. In the end the discount to which he is entitled is the value to the administration of justice of the performance by him of the statutory agreement. The discount of 5 years from the minimum term (in relation to any other sentence, the equivalent of a 10 years reduction) was a sufficient reduction. Accordingly the appeal was dismissed.