England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LIVERPOOL CROWN COURT
HHJ AUBREY QC
T20107971

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/10/2016

Mr Justice Turner :

The Background

1. On 15 April 2011 in the Crown Court at Liverpool the applicant pleaded guilty to five drug related offences the most serious of which was conspiracy to import approximately two tonnes of cocaine in respect of which, on 19 October 2011, he received a sentence of 20 years imprisonment passed by HH Judge Aubrey QC. The sentences for each of the other offences were ordered to be served concurrently to this sentence and to each other. He appeared with nine co-defendants each of whom also received long sentences of imprisonment for serious drug related offending.
2. On 27 February 2013, the same judge imposed on the applicant a Financial Reporting Order ("FRO") under section 76 of the Serious Organised Crime and Police Act 2005 for a period of fifteen years together with a Confiscation Order in the sum of £9,044.74.
3. The applicant now seeks leave to appeal against his sentence of imprisonment. However, he faces two significant hurdles even before any consideration of the substantive merits, if any, of his grounds. Firstly, he has already and unsuccessfully applied for leave to appeal to this Court against the FRO. Secondly, his application is made nearly five years out of time.

The Procedural History of the Appeal

4. When the matter came before this Court on 16 June 2016, there was much confusion and uncertainty as to the sequence of events which had given rise to the long delay. Accordingly, we granted the applicant an adjournment in order to give him the opportunity to waive legal professional privilege in the hope that the material and information thus obtained would cast some light on the issue. The applicant duly signed a formal waiver document on 6 July 2016.
5. This exercise has prompted the disclosure of a very considerable tranche of documentary material together with formal written responses from counsel, Mr Stone QC and Ms Mushtaq, each of whom has advised the applicant in the period following his conviction and sentence. A response has also been served by Mr Robinson of Emmersons Solicitors Limited who have acted for the applicant since early 2012 following the termination of the retainer of their predecessors. The picture which has emerged of the events of the years which have elapsed since then betrays a significant lack of focus and coherence in the way in which the case has been progressed.
6. On 7 November 2011, comfortably within the 28 day time limit within which any appeal notice ought to have been filed, Mr Barraclough of counsel, who had represented the applicant throughout, drafted detailed advice and grounds supporting the contention that the period of imprisonment imposed upon the applicant was manifestly excessive. Significantly, however, a contemporaneous handwritten note appears at the head of the advice stating "lodged then withdrawn". This, it is conceded, is a reference to the fact that the applicant asked his solicitors to withdraw the appeal at that stage.
7. The basis upon which the applicant took issue with the advice and grounds drafted by Mr Barraclough is not clear from the material with which we have been provided. The consequence of the applicant's decision not to proceed with the appeal at that stage, however, was that the 28 day time limit for the service of an appeal notice had predictably expired before new counsel was retained. Indeed, the applicant was fully aware of this at the time as is revealed in the skeleton argument drafted on his behalf which notes that the applicant had instructed his original solicitors upon withdrawing the appeal "to ask for an extension of time".
8. Three months after sentence had been passed and two months after the applicant was out of time with respect to the filing any appeal notice, he wrote directly to fresh counsel, Mr Stone, asking for his advice. Mr Stone saw the applicant in conference on 24 February 2012 but, at this stage, had not seen the full case papers and, in the absence of public funding, was acting on a pro bono basis. Funding was eventually put in place on 22 May 2012 with new solicitors, Emmersons, acting on behalf of the applicant. Mr Stone then read the documents in the case and rapidly came to the unequivocal view that the applicant had no arguable grounds of appeal against either conviction or sentence. Furthermore, Mr Stone was unavailable to appear on the POCA hearing which at that stage had been listed to take place on 3 October 2012. Accordingly, the brief with respect to the confiscation proceedings was passed to Ms Mushtaq of counsel.
9. Eventually, on 23 February 2013, the applicant was made the subject of a confiscation order and FRO. By email dated 30 April 2013, Mr Stone QC (as he had by then become) suggested to his instructing solicitors that he should relinquish all further involvement in the case to Ms Mushtaq. He volunteered to waive the entirety of his fee so that Ms Mushtaq could "readdress the issues". His solicitors agreed to this suggestion.
10. Mr Stone QC clearly intended that he should play no further part in the case. However, Ms Mushtaq appears to have assumed that her role continued to be limited to the confiscation and related ancillary matters. No thought appears to have been given to the possibility that any appeal against the prison sentence might prove, in procedural terms, to be inextricably linked to a challenge to the FRO.
11. In the event, Ms Mushtaq lodged grounds of appeal against the FRO and, on 30 July 2013, the single judge refused permission observing that:

"The 15 year period, although the maximum, was not wrong. Under section 75(5) it had to run for more than about 8 or nine years in order to have effect after your release on licence. An effective period of 6 or 7 years after your release cannot be said to be excessive".

12. On 13 December 2013, this Court, [2013] EWCA Crim 2357, refused a renewed application for leave to appeal against the FRO in the following terms:

"We turn finally to the applicant Geraghty, who has not sought to appeal against his prison sentence of 20 years for his part in the main conspiracy to import cocaine (Count 4 of indictment 1) and for other offences, but renews his application for leave to appeal against the Financial Reporting Order which was made in his case. It is submitted on his behalf that any such order was wrong in principle, or alternatively that the duration of the order for the maximum permitted term of 15 years was manifestly excessive. We cannot accept those submissions. The judge was entitled to make the assessment he did of the risk of future re-offending, and in the light of that assessment it cannot be said that the order was unnecessary. Nor was it disproportionate or excessive in its duration; the order does not impose any particularly onerous demands upon Geraghty, and its duration has to take account of the fact that he will be in prison for a number of years, and that important parts of the order will not effectively bite until he is released".

13. Thus, it is plain from the reasoning, both of the single judge and of the Full Court, not only that the length of the prison sentence was assumed not to be the subject of appellate challenge but also that the assessment of the appropriateness of the length of the FRO was, at least in part, contingent upon the length of time the applicant could be expected to remain in custody. Put simply, had the prison sentence been shorter then the length of the FRO would have been more vulnerable to challenge. This, however, was not a point which had occurred to Ms Mushtaq. In a written advice dated 12 November 2013, she referred to the FRO as being "the subject of a separate appeal" to any challenge to the length of the prison sentence. She went on to conclude that there were grounds to appeal the latter and advised that her grounds and advice "should be submitted as soon as possible".
14. Four months later, no grounds and advice had been filed and, by letter dated 24 March 2014, the applicant dispensed with the services of Ms Mushtaq. There is a dispute between Ms Mushtaq and Mr Robinson of Emmersons as to who was responsible for the lack of appellate progress over this period which we do not find it necessary to resolve.
15. Later in 2014, the applicant's present, and fourth, counsel, Mr Monteith, was instructed to advise on appeal against the prison sentence. He prepared a written advice dated 1 March 2015 in which he called for sight of a number of documents following receipt of which he said he would advise further. By July 2015, Mr Robinson was able to inform the applicant that information had been provided to counsel and that he expected to receive a response "any time soon".
16. In the event, it was not until 2 January 2016 that counsel provided the further advice citing a frustrated hope to have a conference with the applicant and "pressure of work" as the reasons for the egregious ten month delay. After further unhurried exchanges between the applicant and his legal team over the contents of the proposed appeal bundle, Form NG was finally served on the Court on 30 March 2016 i.e. about four and half years out of time. Against this background, the assertion in the Grounds of Appeal that "there are good reasons" for the delay is brave indeed.

Jurisdiction

17. The first issue to be considered is the jurisdictional question as to whether the earlier and unsuccessful application for leave to appeal against the FRO now precludes this Court from further consideration of the applicant's present challenge to his sentence of imprisonment.
18. Section 9(1) of the Criminal Appeal Act 1968 provides:

"A person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (not being a sentence fixed by law) passed on him for the offence, whether passed on his conviction or in subsequent proceedings".

19. Section 50 (1) of the 1968 Act provides insofar as is material:

"Meaning of "sentence"E+W

(1) In this Act "sentence", in relation to an offence, includes any order made by a Court when dealing with an offender…"

There follows a list of orders which are to be taken to be included within the scope of this section. However, the list is by way of example only and although an FRO is not therein expressly referred to it is clear that such an order is one which is "made by a Court when dealing with an offender".

20. This was the conclusion reached by this Court in R v Adams [2009] 1 WLR 301:

"24 The first question however is whether this Court has jurisdiction to deal with the financial reporting order at all. That is because there is no statutory provision which expressly provides (as has been the case in a number of other statutory provisions) that such orders shall be considered to be sentences of the Court for the purposes of the right of appeal under the Criminal Appeal Act 1968. The problem that would be presented if it was not to be treated as a sentence of the Court is that it would be an order made which was related to a matter arising on indictment, and therefore judicial review would be precluded as well. The consequence would be that there would be no apparent means whereby any defendant wrongly subjected to a financial reporting order could have the matter rectified. That is clearly a consequence which this Court should avoid if it can possibly do so. The solution, it seems to us, is that, for the purposes of the 1968 Act, the financial reporting order is indeed a sentence".

21. Section 9 of the 1968 Act does not expressly limit any prospective appellant to a single appeal in respect of two or more orders following the same conviction. However, it has long been recognised that, normally and in the interests of finality, successive appeals will not be entertained. As this Court held in Hughes [2010] 1 Cr App R(S) 25 at paragraph 6:

"The words of s.9(1) do not explicitly restrict the appellant or the Court to a single appeal. That is, however, their plain effect. Similar words in other statutes in relation to powers of appeal have always been held to have that effect".

22. The Court went on to cite with approval the case of Pinfold [1988] 87 Cr. App. R. 15 in which it was held:

"So there is nothing there on the face of it which says in terms that one appeal is all that an appellant is allowed. But in the view of this Court, one must read those provisions against the background that it is in the interests of the public in general that there should be a limit or a finality to legal proceedings…We have been unable to discover, nor have counsel been able to discover, any situation in which a right of appeal couched in similar terms to that has been construed as a right to pursue more than one appeal in one case".

23. In Hughes, however, in contrast to the present case, the application for leave was directed to precisely the same sentence or order which had already been considered by the Court of Appeal on an earlier occasion. In this case it is argued that, on the correct construction of the relevant statutory provisions, the FRO fell outside the scope of the earlier sentencing exercise which had involved the passing of the sentence of imprisonment and thus the applicant was provided with a launching platform from which could spring a distinct appellate challenge untrammelled by the general rule against second appeals.
24. In support of this approach, the applicant relies on the case of Odesanyi [2005] EWCA Crim 2260 in which the applicant had been sentenced to a long term of imprisonment in respect of drug importation offences. About six weeks later in the same Court before the same judge the applicant was made subject to a confiscation order in the sum of £225,520. An application for leave to appeal against conviction was unsuccessful and was followed by an application for leave to appeal against sentence which, again, was unsuccessful. Undeterred, the applicant made a third application to appeal the confiscation order. The Court proceeded on the assumption, in the applicant's favour and in the absence of contemporaneous documentation, that the first application for leave to appeal against sentence had been limited to the sentence of imprisonment. The issue arose as to whether the Court had jurisdiction to entertain the second application for leave to appeal against sentence. In this context, Longmore LJ observed:

"5. …The first matter which concerns the Court is whether there is jurisdiction to consider this application. Section 11(2) of the Criminal Appeal Act 1968 in general terms permits but one appeal against all elements of a sentence passed on the same day or on different days and declared to be substantially one sentence — see section 10(4) of the Act, the exact words of which are:

"… any two or more sentences are to be treated as passed in the same proceeding if—

(b) they are passed on different days but the Court in passing any one of them states that it is treating that one together with the other or others as substantially one sentence".

Here the confiscation order was made on 15th November 1996 but was not (we feel it necessary to assume) the subject of any complaint. In the case of Neal [1999] 2 Cr.App.R (S) 352, the confiscation order was only made after the appeal against the sentence of imprisonment had been disposed of. That authority is, therefore, unhelpful in a case where the appeal against sentence is mounted after the confiscation order has been made.

6 Because of the long delay the transcript of the confiscation order as made by the judge and his reasons for it is no longer available. We do not know, therefore, whether the Court stated that it was treating the confiscation order and the sentence of imprisonment as one sentence — to use the wording of section 10(4) of the Act. It is, however, unlikely, just as in Neal, that any such statement would be made — in Neal because it was inappropriate and here because it is unlikely that the judge would, some three months later, have gone to the trouble of so stating. We, therefore, somewhat reluctantly, consider that we have jurisdiction to entertain the application".

25. In its Grounds of Opposition, the prosecution purport to concede this jurisdictional point but it is not open to the parties to circumscribe the statutory jurisdiction of this Court by agreement. We are in a far better evidential position than was the Court in Odesanyi and are not compelled to give the applicant the benefit of any doubt as to what the judge may or may not have said when making the FRO. We have been provided with a transcript of the judge's remarks when he considered the appropriate length of the FRO. He observed:

"Furthermore, the Court firstly has to then consider the duration of the order and the terms of such an order. In the Court's judgment, bearing in mind the length of the sentence that this defendant is currently serving in the particular circumstances of the case, it is appropriate for the Court to make an order that this Financial Reporting Order will last for some 15 years".

26. It is evident from this passage that the judge was expressly treating the terms of the FRO as being inextricably bound up with the length of the sentence of imprisonment he had earlier imposed. The inescapable conclusion is that he was thereby stating that he was treating the terms of the order as substantially one sentence with the sentence of imprisonment. Indeed this Court in Wright [2009] 2 Cr. App. R. (S.) 45 recognised the relevance of the fact, circumstances and length of a sentence of imprisonment with respect to the appropriateness of the making, and duration, of a financial reporting order.
27. Moreover, we reject the suggestion that in order for a case to fall within the scope of section 10(4)(b) of the 1968 Act the judge must make a declaration which follows, verbatim, the precise wording of the subsection. Such an approach would be unduly mechanistic and would mark an unwelcome triumph of form over substance.
28. We, therefore, conclude that the case of Odesanyi does not, as a matter of course, provide a jurisdictional route which an applicant can follow in order to bring a second application for permission to appeal against sentence where the sentencing judge has stated (either explicitly or by necessary implication) that he is treating any substantive sentence when taken together with any subsequently imposed order falling within section 9 of the 1968 Act as substantially one sentence.
29. This applicant had the opportunity to challenge the length of his prison sentence long before he sought unsuccessfully to seek leave to appeal against the FRO. He failed to take up that opportunity. Both the single judge and the full Court dealing with the challenge to the FRO proceeded explicitly and necessarily on the basis that the length of the prison sentence was unchallenged. Thus, we find that the applicant has thereby forfeited any jurisdictional basis upon which he may make any further applications to this Court.
30. We observe, in passing, that cases, such as Neal, where a second or subsequent order is only made after the appeal against an earlier order has been disposed of, will continue to be capable in appropriate cases of providing an exception to the general rule against repeated applications. Moreover, as this Court recently observed in Yasain [2016] QB 146, there is a residual category of cases in which the Court enjoys a very limited jurisdiction to avoid real injustice in exceptional circumstances to exercise an implicit power to reopen a concluded appeal where it is necessary to do so. No such real injustice or exceptional circumstances can be found in this case not least because of the inordinate delay in bringing the appeal and its lack of substantive merit.

Delay

31. It follows from the analysis above that this application fails on grounds of want of jurisdiction but, even if we had found in the applicant's favour on this issue, we would not have granted the necessary extension of time. In the recent cases of Wilson [2016] EWCA Crim 65 and Roberts [2016] EWCA Crim 71 this Court has emphasised the importance of observing time limits in the context of appeals. There is a strong public interest in achieving finality in litigation. In a case such as this where the delay is so very long the Court will inevitably be looking for compelling reasons to justify granting an extension of time. We find no such reasons here. On the contrary, the chronology submitted in support of the application to extend time in this case reveals an all too familiar picture of fitful and desultory progress punctuated by episodes of dissatisfaction with successive legal advisors.
32. We also bear in mind in this case that counsel's original advice on appeal was strongly positive but, notwithstanding this, the applicant himself decided not to proceed expeditiously with any application for leave to appeal. As we have already observed, he took this decision in the full knowledge that it would thus become necessary for him to obtain the leave of the Court for an extension.
33. As time wore on, the applicant and his advisors appear to have laboured under the misapprehension that not only days but weeks, months and years could be allowed to drift past without accruing further significant procedural prejudice to the applicant's prospects of appellate success - as if the damage had already been done. We would wish to make it clear that early delays, far from providing a licence for further procrastination, make it even more important that an appeal is progressed thereafter with proper expedition.

The merits

34. In any event, we find no merit in any of the four substantive grounds of appeal.
35. The applicant was a regional supplier in wholesale quantities of Class A drugs and was intimately involved in the planning of their importation into the UK. His offending was seriously aggravated by a previous conviction for conspiracy to supply controlled drugs in respect of which he had served a substantial sentence of imprisonment. On these facts, the sentence of twenty years was entirely appropriate. The judge expressly referred to and applied the principle of totality by passing concurrent sentences with respect to the four relatively less serious counts to which the applicant had also pleaded guilty. The quantity of cocaine involved was described as between two or three tonnes in the judge's sentencing remarks and up to two tonnes on the later confiscation hearing. The difference between the two descriptions falls far short of justifying any reduction in sentence. An argument based on disparity is raised but this fails to take into account the reality of the applicant's high level involvement in the conspiracy which was accurately reflected in the sentencing remarks of the judge. The minute and, ultimately fruitless, exegesis of the nuances of the involvement of the other defendants relied upon in the applicant's grounds fails to demonstrate any objectionable disparity in sentence and thus takes the matter no further. Furthermore, the factors of personal mitigation advanced fall far short of any which would render the sentence manifestly excessive.
36. In the circumstances, the application is dismissed.