Jersey Unreported Judgments

[2006]JCA095

COURT OF APPEAL

14^th July 2006

Before     :

P. D. Smith, Esq., Q.C., President; M. S. Jones, Esq., Q.C., and; J. W. McNeill, Esq., Q.C.

Richard Charles Robert Styles

Joseph Dean Day

Joseph Thomas Carney

Cliff Alberto De Sousa

-v-

The Attorney General

Application for leave to appeal against the convictions passed by the Criminal Assize Court on 8^th December, 2005 and the sentences passed by the Superior Number of the Royal Court on 27^th January, 2006, AND applications for leave to present new evidence.

1 count of:

Conspiracy to contravene Article 61 of the Customs and Excise (Jersey) Law 1999.

S. M. Baker, Esq., Crown Advocate.

Advocate R. Tremoceiro for Styles.

Advocate M. L. A. Pallot for Carney.

Advocate R. C. L. Juste for De Sousa.

Advocate M. J. Haines as Amicus Curiae for Day.

JUDGMENT

Smith ja:

A          INTRODUCTION

1.        These applications for leave to appeal against conviction, for leave to adduce fresh evidence and for leave to appeal against sentence arise out of the prosecution and conviction of the Applicants in the Royal Court on one count of conspiracy to contravene Article 61 of the Customs and Excise (Jersey) Law 1999.  The particulars of the offence were that the Applicants, on or between 1^st July 2003 and 6^th October 2003, conspired with each other and others to fraudulently evade (sic) the prohibition on the importation of a controlled drug specified in Part II of the Second Schedule to the Misuse of Drugs (Jersey) Law, 1978, namely cannabis resin.

2.        The Crown case at the trial was that approximately 90 kgs of cannabis resin, packed into three holdall type bags, had been dropped from an aeroplane flying over Jersey on the night of 2^nd/3^rd October 2003. The cannabis was in the form of "nine" bars. These had been made up into parcels bound with masking tape which were surrounded by kitchen paper and plastic packaging material to protect them against impact damage. Styles was alleged to have piloted the aeroplane.  Day and Carney were alleged to have been passengers and have participated in getting the cannabis out of the aircraft.  De Sousa was alleged to have been involved in an unsuccessful attempt to retrieve the drugs after they had been dropped.  We deal first with the applications for leave to appeal against conviction.

B          STYLES: SIMILAR FACT EVIDENCE: THE BELGIAN EVIDENCE

3.        Prior to the trial the judge, Sir Richard Tucker KBE, Commissioner, conducted a directions hearing.  At that hearing, the Crown applied for leave to adduce at the trial as against Styles certain evidence on the ground that it comprised similar facts.  That evidence, described for convenience as "the Belgian evidence", was in the following terms:

"On 19^th September 2000 Richard Styles flew a four-seater Cessna aircraft registered G-GEAR from Wycombe in Great Britain to Belgium.

At 20.10 hrs on 19^th September 2000 G-GEAR landed at St Hubert.  Shortly afterwards Styles manoeuvred G-GEAR for take off but something went wrong and G-GEAR crashed.

Styles climbed from the cockpit and was questioned and later detained at the scene of the crash.

The following day at 13.15 hrs a black canvas travel bag was recovered near the crash scene in the woods.  The bag contained approximately 130,000 ecstasy tablets.  These were contained in 130 packets wrapped in a sleeping bag and in a thin mattress and further protected by 13 bath towels.  A global positioning system was found in G-GEAR. 

On 21^st September 200 two men were spotted near the scene of the crash in an English registered Ford Mondeo.  One of the men was arrested, the other escaped.

On 18^th November 2003, Styles was convicted in his absence of having imported, exported, manufactured, transported, had in his possession, sold, offered for sale, delivered or acquired illicitly for payment or freely without previous authorisation from the competent authority 130,000 ecstasy tablets.

Styles was sentenced in his absence to three years' imprisonment and fined 100 Euros. 

On 15^th December 2003, Styles appealed in his absence to the Liege Court of Appeal.  On 20^th December 2003 the Court of Appeal dismissed Styles' appeal and in his absence increased his sentence to five years' imprisonment."

4.        As will be seen, we have found it necessary to divide this evidence into two parts:  We deal first with everything except the last three pieces and then with those pieces which detail Styles' conviction, punishment and appeal in Belgium.

5.        In his ruling on this issue, the Commissioner set out the test he considered he had to apply in the following terms:

"In essence ... the question which I have to decide is whether the proposed evidence is truly probative and to such a degree that it outweighs the undoubted prejudice that it would cause, or whether it does no more than demonstrate a propensity in the Defendant to commit this type of offence."

The Commissioner went on to quote from the speech of Lord Mackay of Clashfern LC in Director of Public Prosecutions -v- P [1991] 2 AC 447.  He continued:

"Advocate Preston [who appeared for Styles in the Royal Court] has pointed ... to differences between the Belgian conviction and the present allegation.  Nevertheless, both of them relate to the use of a light aircraft and the transportation of illicit drugs.  Both relate to the carrying of  drugs - in one case ecstasy and, in this case, cannabis resin - carefully packaged, as may be inferred from both cases, in my view, against a drop from that aircraft. 

I have to ask whether or not it would be an affront to the common sense of a Jury to exclude the evidence of the Belgian conviction from their consideration.  Can it be right for the Jury to be left in ignorance of the previous conviction?  Is it likely, I ask myself, that flying over or around Jersey airspace at the relevant time there were two pilots each of whom had interest in the illicit transportation of drugs, one of whom had a previous conviction for so doing and the other not?

It seems to me highly material that, in determining whether or not, in the case of Mr. Styles, he committed this offence, the Jury should know that he was convicted of an offence committed, in my view, in very similar although I concede not identical circumstances.  I recognise obviously the prejudicial effect it will have upon him, but I have to ask whether it has probative value. To that question, there is, in my mind, only one answer.  It clearly has overwhelming probative value.  In the course of summing-up, if the case comes to that stage, I shall be careful to warn the Jury about the approach that they should make to such evidence, but I have no doubt that it is admissible."

6.        In this Court, Advocate R. Tremoceiro appeared for Styles.  He contended that the Commissioner ought not to have admitted the Belgian evidence.  In particular he argued:

(i)        The Commissioner erred in so far as he held that DPP -v- P extended the previous principle of striking similarity or uniqueness;

(ii)       The Commissioner had appeared to indicate, mistakenly, that a lower degree of probative force was required of similar fact evidence following DPP -v- P;

(iii)      That the similarities identified by the Commissioner between the Belgian evidence and the present case did not provide the level of probative force required for the evidence to be admitted;

(iv)      That the relevant issue was one of identification and that therefore the test of "striking similarity" should have been applied; and

(v)       That there was no basis for the Commissioner's rhetorical question as to the presence of two pilots in or around Jersey airspace on the night of 2^nd/3^rd October 2003.

7.        The Commissioner did say that in DPP -v- P the House of Lords extended the previous principle of striking similarity or uniqueness, by which we understand him to mean that the Lords have relaxed this requirement.  In this he was undoubtedly correct (see p. 460 of the report).  However, we can find nothing in what the Commissioner said to indicate that he thought that the effect of DPP -v- P was to lower the requisite degree of probative force.  Where Mr. Tremoceiro was on apparently stronger ground was in submitting that the issue to which the relevant Belgian evidence related was one of identification and that, therefore, the test of "striking similarity" still had to be met before it could lawfully be admitted.

8.        This submission was based on the statement in Lord Mackay's speech (at p. 462) which reads as follows:

"Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of the argument a signature or other special feature will be necessary."

9.        However, in the case of John W [1998] 2 Cr. App. R. 289, the Court of Appeal of England and Wales examined this statement very carefully and concluded, in our respectful view correctly, that in making it Lord Mackay had in mind the type of case in which the alleged similar facts constituted the only evidence of any substance against the defendant on a particular count.  Stress was laid on the phrase "and evidence of this kind is important in that connection."  (p. 300C-E).

10.      In our opinion it was not necessary for the Commissioner to have identified a "signature" or other special feature in the instant case.  That part of the Belgian evidence with which we are dealing was not the only evidence of substance against Styles.  We mention, by way of example, the evidence that the French civilian radar system tracked the aircraft G-SHUG, which had been hired by Styles on the same day in High Wycombe, being flown across the north-west corner of Jersey in the late evening of 2^nd October 2003 in the dark and in the direction of Dinard.  And there was evidence (from a Mr. P. E. F. Guivarc'h, Manager of the Brest Air Control Centre) that, although the aeroplane was flying at 2000 feet before it reached Jersey, it descended to 1300 feet (1150 when adjusted for air pressure) as it crossed the Island, climbing to 2500 feet as it continued towards Dinard.  In his committal statement Mr. Guivarc'h described the sequence as "not usual" and especially dangerous for an aircraft flying on instruments at night.

11.      Mr. Tremoceiro laid great stress on the argument that when, in the course of giving his ruling, the Commissioner posed the rhetorical question as to two pilots flying over or around Jersey airspace there was no foundation for a restriction of the relevant time to the night of 2^nd/3^rd October 2003.  It had not been demonstrated, he continued, how long the drugs had been in the field at L'Etacq when they were found there on 3^rd October and he referred to evidence emanating from police witnesses shortly after the drugs were found, and reported in the Jersey Evening Post, to the effect that the drugs had been where they were found for some days.

12.      We do not consider that the Commissioner can be criticised for posing the rhetorical question in the terms he did.  It was clearly going to be a matter for the Jury to decide whether the drugs were lying in the field prior to the aeroplane piloted by Styles passing over Jersey.  If they considered this to be even a reasonable possibility then the case against Styles would have collapsed and the Belgian evidence would have had no significance.  But in order properly to consider the admissibility of that evidence the Commissioner had to take the view that it would be open to the Jury to be satisfied, on the evidence and when properly directed, that the drugs did land on the night in question.  In our opinion he was right to do so.

13.      What we have said deals with arguments (i), (ii), (iv) and (v).  This leaves argument (iii) to which we now turn.

14.      We consider that the correct approach to the admissibility of similar fact evidence is to be found conveniently summarised in the speech of Lord Carswell in O'Brien -v- South Wales Police [2005] UKHL 26 at para 67 et seq.  His Lordship there pointed out that the question of admission in both civil and criminal cases involves a two-stage process.  The first stage is the test of relevance, whether the evidence is logically probative or disprobative of some matter which requires proof (para. 69).  In a criminal case the second stage involves the balancing of the probative force of the evidence against the degree of prejudice to which it may give rise (para. 70).

15.      In our opinion, the evidence was undoubtedly relevant to the question of whether the drugs had been dropped from an aircraft piloted by Styles.  We refer, in particular, to the similarities identified by the Commissioner: the use of a light aircraft, the carrying of illicit drugs and the packaging of the drugs against a drop from that aircraft.  It is true that the type of drug was not the same in each case and that the nature of the protective packaging differed.  But there is no requirement that the facts should be identical, only that they should be similar; and we agree with the Commissioner that the material facts in question were very similar and that the dissimilarities were not of any great importance.

16.      Turning to the second stage, the facts to which we have referred were obviously highly prejudicial to Styles tending, as they did, to support the Crown's contention that it was from an aircraft piloted by him that the cannabis resin was dropped.  However, it does not follow from this conclusion alone that admission of the evidence must be rejected at the second stage:  after all, similar fact evidence is inevitably prejudicial, often highly prejudicial.  In striking the balance we also have to consider its probative force.

17.      Mr. Tremoceiro argued that the probative force of the evidence was limited in that it only went to show propensity.  He supported his argument by suggesting that there was nothing very unusual about the use of an aeroplane to import drugs into Jersey and that therefore the evidence did not have the requisite degree of enhanced relevance or substantial probative value (see O'Brien -v- South Wales Police op. cit. per Lord Phillips of Worth Matravers at para. 33) to overtop the high degree of prejudice. 

18.      We reject this argument. We do not accept that evidence showing propensity must automatically be rejected (see O'Brien -v- South Wales Police op. cit. at para. 73 per Lord Carswell and R -v- Randall [2004] 1 WLR 56 at para. 26 per Lord Steyn).  It is one thing to reject similar fact evidence where the modus operandi is known to have been adopted by numerous other offenders. It is quite another when the commission of the crime involves the application of sophisticated skills possessed by a relatively small number of people. Over the years and, in particular, in recent years many cases of importation of illicit drugs have come before the Island's courts.  This Court is not aware of any case in which the importation was effected by them being dropped from an aircraft, and we were not referred to such a case by Mr. Tremoceiro. 

19.      To our minds it is the fact that the Jury would have been entitled to draw the inference from that part of the Belgian evidence, with which we are now dealing, that at the material time Styles was in the process of taking off in the aeroplane in which he was found with the intention of dropping the drugs found nearby from that aeroplane onto a particular target which gives that evidence its powerful probative force.  In our judgment, the balance comes down firmly on the side of admissibility.

20.      Before leaving this aspect of Styles' application we would add two things.  First, although we agree that it was incumbent upon the Commissioner to review his ruling as to admissibility in the course of the trial as and when the need arose, we do not agree with Mr. Tremoceiro's contention that that need arose when evidence emerged at the trial that other unidentified aircraft had flown over Jersey in the early hours of the morning in the week or so prior to 2^nd October 2003.  In our opinion, the test for admissibility, which we have adumbrated above, remained met after that evidence had been given to the same extent that it had been met before.  Secondly, we record that if, in the circumstances of this case, and contrary to the view we have already expressed, it was necessary for a special feature to have been identified to render the evidence presently under consideration admissible, we would have held that the similarities to which we have drawn attention are so striking as to meet this requirement.  We now turn to the evidence of Styles' conviction, prosecution and appeal in Belgium.

21.      In the course of the hearing before us, we invited counsel for the Attorney General, Crown Advocate S. M. Baker, to explain how this evidence was capable of being characterised as similar fact evidence or was otherwise admissible.  Mr. Baker responded in written supplementary contentions supplied after the conclusion of the hearing of the applications in this Court and Mr. Tremoceiro furnished a written response on behalf of Styles.

22.      Mr. Baker made the following points:

(i)        A conviction in a foreign court is a fact capable of admission in evidence by agreement between the prosecutor and the defence;

(ii)       The Crown would have acceded to a defence request to remove the reference to the conviction in the Belgian evidence had one been made;

(iii)      Before the Commissioner the defence did not challenge the admissibility of the Belgian conviction, as such, and this was not specifically raised by the defence in Styles' grounds of appeal;

(iv)      There was no prejudice to Styles in the fact of the conviction being admitted.

23.      In our opinion the Crown's response to the admissibility issue (points (i), (ii) and (iii) above) is totally misconceived. Under the common law of Jersey a conviction is not admissible in criminal proceedings and there is no statutory exception relevant to this case. The admissions were sought under Article 3(1) of the Criminal Justice (Evidence and Procedure) (Jersey) Law 1998.  This provision only applies to "any fact of which oral evidence may be given in any criminal proceedings."  The fact of the Belgian conviction, and the associated punishment and appeal, were not facts of which oral evidence could lawfully have been given and we record that at no time has the Crown sought to argue to the contrary.  The prosecution ought not to have sought to have these facts admitted.  That the inadmissibility of this evidence was, it appears, overlooked both by the advocate who represented Styles at the time and the Commissioner does not, to any extent, relieve the Crown of the responsibility for what happened.  It would appear from the transcript of the directions hearing that the minds of those involved in addressing the question of the admissibility of the Belgian evidence were so focussed on the similar facts aspect that they simply did not advert to this aspect, the facts of the conviction etc. being mistakenly treated as within the scope of the similar facts application.

24.      The purported admission of the Belgian evidence did not render the evidence of the conviction, punishment or appeal admissible and they ought not to have been put before the Jury.  Furthermore, Mr. Tremoceiro was entitled to rely on this point in this Court.  As we have said, the Belgian conviction was admitted on foot of the similar facts application and in his application for leave to appeal Styles challenged the admissibility of all of this evidence.

25.      As to Mr. Baker's fourth point (the absence of prejudice), we have come to the conclusion, albeit with a degree of hesitation, that the facts in question could not have added significantly to the admissible similar facts with which we have already dealt.  If the jury accepted that those facts were probative of Styles' guilt as contended by the prosecution, the conviction and other inadmissible facts could have added nothing.  If the jury took the view that the similar facts were not probative of Styles' guilt it is inconceivable that they did not also conclude that the conviction, punishment and appeal, all based on those facts, were not probative of his guilt either.

26.      We are confirmed in this conclusion by reference to the transcript of what the Commissioner said about the similar facts issue at the directions hearing.  Although he referred on a number of occasions to "the Belgian conviction" he attached significance only to the actual similar facts.  Bearing in mind that at the time the Commissioner was acting as the tribunal of fact as well as of law, this strongly supports the view that it would be on those facts, and not on the conviction or appeal or punishment, that a reasonable person would fix when faced with the material in question.

27.      Mr. Tremoceiro referred us to a Law Commission Report "Evidence of Bad Character in Criminal Proceedings" (Law Com No 273) published in 2001.  This concluded (at para. A.35 on p. 249) that "any previous conviction unfavourably affected the magistrates' impressions and verdicts."  However, while it is reasonable to assume, as a generalisation, that the effect on a jury would be similar we do not believe, for the reasons given, that there would have been any such effect in the instant case.

28.      We deal with the formal significance of our conclusions on this issue later in this judgment.

C          STYLES: THE NICHOLLS EVIDENCE

29.      At the directions hearing Styles' advocate objected to the admissibility of part of the evidence the Crown sought to adduce from a Mr. Charles Martin Nicholls.  In his statement Mr. Nicholls described hiring a light aircraft to Styles on 30^th July 2003.  There was evidence from which it could be inferred that this aeroplane was flown by Styles to Rennes in Brittany on 31^st July 2003 with Carney on board and, during the same period, Day was in Jersey.  A couple of days after the aircraft was returned Mr. Nicholls noticed damage to the exterior paintwork "underneath the passenger doors (sic)."  The damage appeared to him to have been caused by a strap or seatbelt becoming accidentally trapped in the door and beating against the aircraft panelling.  Furthermore, on the same day Mr. Nicholls found a cut black shoulder strap under the rear seats.  Although he did not retain the strap Mr. Nicholls was subsequently shown a strap from a bag which matched the bags which were found in the field at L'Etacq an in which, according to the prosecution, the cannabis resin had been dropped.  He said that he felt very confident that that strap was the same type as the one he found in the aircraft.

30.      The Crown put their argument that the evidence was admissible on the basis that the Rennes trip, which occurred during the period specified in the charge of conspiracy, had formed part of the planning for the October drop on Jersey and that it may have involved a drugs importation, the Crown did not know.

31.      Mr. Tremoceiro argued that the parts of Mr. Nicholls' evidence to which we have referred ought not to have been admitted as the Jury may have concluded from it that Styles had committed an offence similar to that on which he stood indicted but with which he had not been charged or convicted and he referred us to Noor Mohammed -v- The King [1949] AC 183.

32.      Noor Mohammed's case is a similar facts case.  There is nothing to indicate that the Commissioner viewed the evidence in question as similar facts evidence and he did not give a similar facts warning to the jury in relation to it.  The evidence was not inadmissible merely because it might have been interpreted as suggesting that an offence other than that charged had been committed (see Makin -v- A-G for NSW (1894) AC 57 at p. 65).  The Commissioner appears to have viewed the evidence as evidence of and incidental to the alleged conspiracy.  In doing so we believe that he was correct.  As part of his duty to ensure a fair trial he considered whether the prejudicial effect of the evidence outweighed its probative value and decided that it did not.  We agree with his conclusion.

D          STYLES: THE STRENGTH OF THE EVIDENCE

33.      All four of the Applicants raised this issue in their written contentions in one form or another.  In dealing with it we have to remind ourselves of the limited scope of our powers which are contained in Article 26(1) of the Court of Appeal (Jersey) Law 1961 ("the Law") which, so far as is material, is in the following terms:

"Subject to the following provisions of this Part, on any appeal against conviction, the Court of Appeal shall allow the appeal if it thinks that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that, on any ground, there was a miscarriage of justice, and in any other case shall dismiss the appeal ... "

34.      When enacted Article 26(1) followed the wording of the equivalent provision in the Criminal Appeal Act 1907 which was replaced in England in 1968 by the "unsafe or unsatisfactory" test which has never been adopted in Jersey.  The 1907 wording was interpreted as conferring only the right to "a limited appeal which precludes the court from reviewing the evidence and making its own valuation thereof."  (See Aladesuru -v- The Queen [1956] AC 49, at pp. 54-55 per Lord Tucker) so that "[if] there is evidence to go to the jury, and there has been no misdirection, and it cannot be said that the verdict is one which a reasonable jury could not arrive at, this court will not set aside the verdict of guilty which has been found by the jury" (see R -v- Hopkins-Husson [1949] 34 Cr. App. R 47 at p. 49 per Lord Goddard CJ). The passages we have set out were quoted and their applicability endorsed in the recent decision of the Privy Council on the appeal from this Court in the case of Attorney General -v- O'Brien [2006] UKPC 14.  In giving the Judicial Committee's reasons for the decision in that case, and having concluded that the prosecution evidence raised a compelling prima facie case, Lord Hoffmann said that "[if] the Court of Appeal [which had quashed the conviction] was ... looking at the matter after all of the evidence, their Lordships consider that the Court of Appeal usurped the function of the Jurats" (the tribunal of fact in that case).  Lord Hoffmann's remarks are a salutary reminder that we must not stray beyond our limited role and this, of course, applies to all four of the applications for leave to appeal presently before us.

35.      Mr. Tremoceiro drew our attention to twenty respects in which he contended that the prosecution evidence was weak, flawed or inconsistent. In our view, in the light of Attorney General -v- O'Brien it would not be appropriate for us to sift through those points and attempt to evaluate them. Moreover, Mr Tremoceiro expressly predicated his argument on the exclusion of the Belgian evidence and that of Mr. Nicholls with the implication that when that is taken into account the evidence was strong enough to support Styles' conviction. Our confirmation of the admissibility of that evidence (apart from the Belgian conviction etc.) is another reason why we should not conduct this exercise.

36.      We consider that there was ample evidence on which the Jury, properly directed (and there was no criticism of the Commissioner's summing-up), could have convicted Styles.  In addition to the admissible Belgian evidence, the French radar evidence, that of Mr Guivarc'h, that of Mr Nicholl and of the July flight to Rennes to which we have already made reference, we list the following, which includes inferences the Jury could legitimately have drawn: 

(i)        After hiring G-SHUG on 2^nd October 2003, Styles flew to a remote airfield at Pocklington in the north of England.

(ii)       He filed a flight plan indicating his intention to take three passengers (including himself) to Dinard by a route that would take the aircraft over the north-west tip of Jersey.

(iii)      What was observed by a witness at that airfield in the early evening of that day was consistent with the arrival of others and the loading of the drugs.

(iv)      Styles flew to Dinard where he arrived after midnight.

(v)       The drugs were found the next day (3^rd October) near the area over which G-SHUG had flown at a reduced speed and height.

(vi)      On that day Styles flew to Jersey in G-SHUG with Day and Carney.

(vii)     On arrival in Jersey Styles told Customs officers that he had gone to France to attend the Dinard Film Festival but by the time he had landed on the previous evening the films would have finished.

(viii)    Styles left Day and Carney in Jersey.

(ix)      Straps matching those which are supplied with the holdall type bags in which the drugs were found were retrieved from G-SHUG after Styles had returned it.

(x)       A piece of notepaper from the Hotel de France was found in Styles' loft when it was searched some months later.  On it was written a set of Global Positioning System (GPS) co-ordinates which relate to a model aeroplane runway at Les Landes on the north-west corner of Jersey and which is near the field at L'Etacq in which the drugs were found.

(xi)      A number of men were seen searching the area of the model aeroplane runway on the early evening of 3rd October 2003.

E          DAY'S APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION

37.      Although he was represented in the Royal Court Day was not represented before us.  However, in advance of the hearing Advocate M. J. Haines was appointed amicus curiae to assist this Court in dealing fairly with an unrepresented person.

38.      The evidence against Day, including the inferences which the Jury could legitimately have drawn, may be summarised as follows:

(i)        Styles was supplied with two additional headsets (making a total of three) when he hired G-SHUG on 2^nd October 2003.

(ii)       G-SHUG flew over the north-west corner of Jersey on the late evening of 2^nd October 2003.

(iii)      At or around 14.50pm on 3^rd October 2003 Styles, Day and Carney arrived in Jersey from Dinard on board G-SHUG.

(iv)      A number of men were seen searching the area of the model aeroplane runway at Les Landes, which is near the field at L'Etacq in which the drugs were found, on the early evening of 3^rd October 2003 when Day and Carney were in Jersey.

(v)       Day and Carney did not leave Jersey with Styles on G-SHUG but left by ferry on 4^th October, their tickets having been booked on that day by use of a credit card belonging to Day's mother and registered at Day's address in Liverpool.

(vi)      On 31^st July 2003, the same day that Styles and Carney flew to Rennes in an aircraft hired from Mr. Nicholls, Day was in Jersey.  The explanation he gave for being on the Island was far-fetched.

(vii)     Day provided an alibi statement to explain how he came to be in Dinard on 3^rd October 2003.  It was absurd, involving him in sleeping all the way from England to France before mistakenly taking a train to Dinard in Brittany rather than Den Haag in the Netherlands, having misheard a railway announcement.  Dinard does not have a railway station.

(viii)    Straps matching those which are supplied with the holdall type bags in which the drugs were found were retrieved from G-SHUG after it had been returned.

39.      In our opinion a reasonable jury could also have legitimately inferred that Day was indeed one of the people in G-SHUG besides Styles when the cannabis was dropped on Jersey and could reasonably have convicted on the basis of the evidence and inferences we have summarised.

40.      In the documents furnished to the Court by Day he raised a number of other issues relating to the trial.  Not all of these were proceeded with before us.  Those that were related to the location of the three holdall-type bags which were found at L'Etacq and which appear to have contained the 90 kgs of cannabis resin; the circumstances surrounding the discovery of the straps in G-SHUG and events at Les Landes in September 2003.

41.      Each of these issues was explored fully before the Jury who clearly did not consider that either individually or cumulatively they raised a reasonable doubt about Day's guilt, or the guilt of any of his co-accused.  Bearing in mind O'Brien's case we must be careful not to usurp the function of the tribunal of fact.  Accordingly, we do not consider it to be open to this Court to contemplate taking a different view of them.

F          CARNEY'S APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION

42.      Advocate M. Pallot, who appeared for Carney both before us and in the Royal Court, contended that the verdict was unreasonable and could not be supported having regard to the totality of the evidence.  While these words echo part of Article 26(1) of the Law (with the addition of "totality of") we consider, as we have already indicated, that the test to be applied is that adumbrated by Lord Goddard in R -v- Hopkins-Husson and endorsed by the Privy Council (see para. 34 above).  In other words, no misdirection having been alleged, the question is whether the guilty verdict against Carney was one which a reasonable jury could reach.  The evidence against Carney, including inferences the Jury could legitimately have drawn, may be summarised as follows:

(i)        Styles was supplied with two additional headsets (making a total of three) when he hired G-SHUG on 2^nd October 2003.

(ii)       G-SHUG flew over the north-west corner of Jersey on the late evening of 2^nd October 2003.

(iii)      At or around 14.50 pm on 3^rd October 2003 Styles, Carney and Day arrived in Jersey from Dinard on board G-SHUG.

(iv)      A number of men were seen searching the area of the model aeroplane runway at Les Landes, which is near the field at L'Etacq in which the drugs were found, in the early evening of 3^rd October 2003 when Carney and Day were in Jersey.

(v)       Carney and Day did not leave Jersey with Styles on G-SHUG but left by ferry on 4^th October, their tickets having been booked on that day by use of a credit card belonging to Day's mother and registered at Day's address in Liverpool.

(vi)      Straps matching those which are supplied with the holdall type bags in which the drugs were found were retrieved from G-SHUG after it had been returned.

(vii)     On 31^st July 2003 Carney had flown to Rennes in the aircraft piloted by Styles which had been hired to him by Mr. Nicholls.  On its return the aircraft had damage to the paintwork which appeared to have been caused by a strap or seatbelt having become accidentally trapped in the door and having beaten against the aircraft panelling.  Furthermore, a cut strap was subsequently found in the aircraft of the same type as a strap from a bag which matched the bags found in the field at L'Etacq and in which the cannabis resin had been dropped. 

(viii)    When interviewed by police Carney denied that he knew Styles, was evasive as to whether he had even been to Dinard, as to how he came to be on the aircraft on which he arrived in Jersey on 3^rd October 2003 and as to the circumstances of his stay.

43.      Mr. Pallot made a number of points in relation to the evidence at the trial: as to the absence of corroboration and its circumstantial nature; as to the absence of identification of his client at Pocklington or Dinard or at Les Landes as one of the searchers; as to inconsistency between the description of Carney and of the men he took to Les Landes given by de Sousa to the police; as to the absence of forensic evidence; as to alleged adjustments in the evidence of prosecution witnesses to meet the prosecution case; and as to the absence of evidence that the drugs could not have been in the field at L'Etacq on the day or days preceding the day on which they were found.

44.      All of these points were before the Jury yet they convicted Carney.  In our judgment a reasonable jury was entitled to conclude that Carney also was one of the people in the aircraft piloted by Styles and that he participated in getting the bags of cannabis resin which fell at L'Etacq out of the aeroplane.  We reiterate that it is not for us to usurp the function of the Jury by contemplating taking a different view of the points made than they did.  Furthermore, Mr. Pallot sought to adopt all the points made by Mr. Tremoceiro on Styles' behalf in so far as they related to Carney.  Just as we declined to entertain those points when raised on behalf of Styles we decline also to scrutinise them in respect of Carney.

45.      Mr. Pallot went on to argue that Carney had been denied a fair trial by reason of the incompetence of the police investigation.  He drew attention to the failure of the police to record accurately or at all the alleged impact marks of the bags or the resting places of the bags or their contents (two of the bags had split open) in the field at L'Etacq.  Furthermore, he complained that the evidence of witnesses who gave evidence as to other unidentified aircraft flying in the area was unknown to the Applicant and only came out during the trial.

46.      We accept that the police investigation in this case left a lot to be desired.  We do not, however, accept that this was so prejudicial to Carney that he was denied a fair trial and we note that no application to this effect was made to the Commissioner.  The failure to record and the consequent discrepancies between the evidence of the relevant police witnesses were, if anything, of assistance to the Applicant in lending credence to the case advanced on Styles' behalf that the aircraft which dropped the cannabis must have been flying in a northerly rather than a southerly direction.

47.      As to the evidence of other aircraft we do not see now Carney was prejudiced by its late provision.  The two witnesses in question gave their evidence at the trial, having been called on behalf of other defendants.  We do not accept that earlier notice of their evidence would have had any impact on the way in which Carney's case was run.

48.      Finally, Mr. Pallot argued that there was evidence given at the trial against other defendants which was not evidence against Carney but was prejudicial to him.

49.      It is not necessary to set this evidence out.  The Applicants were tried together.  No application for separate trials was made nor should such an application have succeeded.  Where defendants are tried together there is always the possibility that evidence inadmissible against a particular defendant but prejudicial to another or others will be given.  The problem falls to be dealt with by the judge directing the jury in clear terms that the evidence in question is not evidence against any other defendant.  This is the way in which it was dealt with in this case and we reject Mr. Pallot's argument on this point.

G          DE SOUSA'S APPLICATION AGAINST LEAVE TO APPEAL AGAINST CONVICTION

50.      Advocate R. Juste appeared for de Sousa in this Court and in the Royal Court.  She submitted that his conviction could not be supported having regard to the evidence or, in other words, that a reasonable jury, properly directed, could not have convicted de Sousa on the evidence against him.

51.      The evidence against de Sousa was that he had driven three men to Les Landes on the early evening of, the Jury was entitled to infer, the day after G-SHUG had flown over the north-west corner of Jersey and on the day on which the cannabis resin was found in the field at L'Etacq.  There they searched the area for something, the prosecution contending that that something was the cannabis resin.

52.      The crucial evidence against de Sousa was his alleged oral statement made to the person from whom he had borrowed the car he was driving and after he had returned it that "he had been up Les Landes (sic) looking for a bit of hash."

53.      Not surprisingly, Miss Juste cross-examined that person, Mr. Michael de Freitas Pereira, at the trial.  In the course of her cross-examination she put the question:  "Is it possible that your memory given that it is such a long time ago, is wrong, that you're mistaken?"  Pereira replied "Could be, yes."  On this basis Miss Juste argued that a reasonable jury would inevitably have had a reasonable doubt as to de Sousa's guilt.

54.      However, the question and answer have to be seen in their context.  They were preceded by a series of questions about the arrest of Pereira on 8^th February 2005 on suspicion of being involved in the conspiracy.  He was interviewed by police and it was put to him that at the end of his interview he "made the statement about Cliff de Sousa."  The questions and answers then proceeded as follows:

"WITNESS:  Did I?

ADVOCATE JUSTE:  Straight afterwards.

WITNESS:  Can't remember.  It's been that long.

ADVOCATE JUSTE:  It's been that long you can't remember?

WITNESS:  Yeah.

ADVOCATE JUSTE: But you took that opportunity to get the attention away from you didn't you?

WITNESS: No, not at all.

ADVOCATE JUSTE:  You made up the fact that de Sousa told you that he was up there looking for a bit of hash didn't you?

WITNESS:  No.

ADVOCATE JUSTE:  Is it possible that your memory given that it was such a long time ago, is wrong, that you're mistaken?

WITNESS: Could be, yes."

55.      Three points may be made about this exchange.  First, that Pereira's "Could be, yes" answer may well have related to his memory of his police interview.  It was this to which his remark "It's been that long" referred.  Secondly, if the answer did relate to his memory when he was in the witness box of what de Sousa had told him, it does not follow that it also applied to the time of his police interview.  He was not asked as to the state of his memory at that time. Thirdly, the real thrust of the series of questions was to the effect that Pereira had made up the allegation about the hash, something that the Jury obviously rejected.

56.      This is a classic example of material which a jury is far better placed to evaluate than an appellate court reading a transcript.  In our opinion it was open to the Jury to have concluded from Pereira's evidence that de Sousa did make the oral statement relied on by the Crown and to have further concluded from all of the evidence against de Sousa that he was involved in the conspiracy, his role having been to assist in the retrieval of the cannabis after it had been dropped.

H          THE APPLICATIONS TO ADDUCE FRESH EVIDENCE

57.      Styles, Day and Carney all sought leave to adduce fresh evidence under Article 34 of the Law, the material part of which reads as follows:

"... the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice - ... (b) if it thinks fit, order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the Court, whether they were or were not called at the trial, or order the examination of any such witnesses to be conducted in the manner provided by rules of court before the Bailiff, the Deputy Bailiff or an ordinary judge of the Court of Appeal, any officer of the Court or any other person appointed by the Court for the purpose, and allow the admission of any depositions so taken as evidence before the Court..."

58.      This provision has been considered by the Court of Appeal on a number of occasions.   In Attorney General -v- Gorvel [1973] JJ 2503, Le Quesne JA cited the principles stated by Lord Parker CJ in the English Court of Appeal in R -v- Parks [1961] 46 Cr. App. R. 29 in the following terms (at p. 32):

"Those principles can be summarised in this way:  First, the evidence that it has sought to call must be evidence which was not available at the trial.  Secondly, and this goes without saying, it must be evidence relevant to the issues.  Thirdly, it must be evidence which is credible evidence in the sense that it is well capable of belief; it is not for this court to decide whether it is to be believed or not, but evidence which is capable of belief.  Fourthly, the court will, after considering that evidence, go on to consider whether there might have been a reasonable doubt in the minds of the jury as to the guilt of the Appellant if that evidence had been given together with other evidence at the trial ... "

Le Quesne JA continued (at p. 2505):  "The position, therefore, is that the Court will not admit the further evidence unless the first three conditions stated by Lord Parker are satisfied.  If those three conditions are satisfied and the Court decides to admit the evidence, the Court will be guided by the fourth rule stated by Lord Parker in deciding what effect the new evidence ought to have."  In Barnes -v- Attorney General [1987-88] JLR 669 Chadwick JA confirmed the continuing applicability of Lord Parker's principles and went on to emphasize that the reception of fresh evidence is to be regarded as "wholly exceptional" (at p. 675).

59.      Styles sought leave to adduce evidence from the following witnesses:

(i)        Dr. Uwe Grimm.  Dr. Grimm is a Reader in mathematics at the Open University.  He would give expert evidence to the effect that, particularly in the light of the steep slope of the field at L'Etacq, if the bags had been dropped from an aircraft travelling at the speed and altitude of G-SHUG and along its approximately north-south flight path it appeared impossible for them to have ended up in the rather close proximity in which they were found.  Also, he could not exclude the possibility that the bags were dropped (as he put it) from the road above (i.e., to the north) of the field.

(ii)       Mr. Peter Styles.  He is a commercial pilot and would give expert evidence that it would have been extremely difficult or even impossible for the bags to have been thrown out of the aircraft and for it to have continued towards France with the door open.  The scenario of three adults and the bags of cannabis resin in the cabin would have been highly improbable and the bags could not have been moved around without interfering with the aircraft controls.

(iii)      Ms Julie Thompson.  She would give evidence (a) tending to refute the prosecution suggestion that the flight to Rennes on 31 July 2003 was a trial run by producing a Rennes Airport receipt showing that there were no passengers on board the aircraft piloted by Styles on arrival there; (b) of flight schedules showing that Rennes is a busy airport with a large number of domestic and international flights; and (c) of a bulletin from the British Air Accident Investigation Branch referring to an incident in which the nose baggage bay door, which had accidentally been left unlatched, came off a similar aircraft when it was in flight.

60.      An affidavit was sworn by Styles seeking to explain, from his perspective, the failure to adduce at the trial expert evidence of the sort that has since become available from Dr. Grimm.  According to this affidavit it was only a week or two before the trial that Styles became aware from Mr. Tremoceiro's predecessor, Advocate M. Preston, that the field was very steep and of the theory that the bags were not in the location where they would have been expected to have been found if they had been dropped from an aircraft travelling from north to south.  The affidavit continues: "Even at that point the possibility of calling an expert to give evidence on this issue was not discussed between my lawyers and me, and I was concentrating on other points of the evidence, so I did not give this matter any thought."

61.      The implications of what we have set out is that Styles was in the hands of his lawyer, Mr. Preston, and that his failure to obtain or lead helpful expert evidence which, it turns out, would have been obtainable, should not disadvantage Styles.  Mr. Preston's swore an affidavit in response to that of Styles and from it a rather different picture begins to emerge.  Mr. Preston pointed out that there are references to the steepness of the field in statements made by prosecution witnesses.  These would have been available to Styles for many months prior to the trial.  Moreover, Mr. Preston clearly recalled Styles telling him on 30^th September 2003 (the trial started on 28^th November 2003) that "... he could not trust anybody (including me) to know anything about his defence at that stage" and he avers that on that date or shortly afterwards Styles told him "... that he had instructed a physicist in Cambridge to look at the trajectory of the bags in order to assess whether it was possible for them to have been dropped in the manner suggested by the Crown."  Although Mr. Preston believed that his assistant had followed this up with Styles nothing more appeared to have been heard of "the Cambridge physicist". 

62.      Styles made a further affidavit in response to that of Mr. Preston.  In it he purports not to recollect discussing a specific "physicist from Cambridge" but concedes, contrary to his denial in his earlier affidavit (but without any attempt to explain it), that there were discussions about experts.  And he goes on to state that: "Dr. Grimm was not contacted on my behalf until around the time of the trial."

63.      In the course of the hearing, the Court sought clarification of this last averment from Mr. Tremoceiro.  It transpired that Dr. Grimm was initially approached by Julie Thompson, Styles' girlfriend, on 18^th November 2005 by both telephone and e-mail.

64.      We draw three conclusions from what we have set out above.  The first is that Styles took it upon himself to deal with the issue of whether expert evidence should be called on his behalf at the trial.  The second is that he made the decision to go ahead and take his chance without such evidence.  It may be that he believed, as he states in his first affidavit, "... that the theory put forward by my lawyer to the jury regarding the drugs being dropped from an aircraft in the opposite direction would be accepted by the jury."  Another possibility is that, knowing that the drugs had in fact been dropped on to the field at L'Etacq from G-SHUG, Styles thought that any expert evidence that could be obtained would be unhelpful or, if apparently helpful, would be liable to destruction in cross-examination which would have wrecked his defence.  Whatever the explanation we are satisfied that he, without reference to his counsel, made a conscious decision not to obtain expert evidence in advance of the trial.  The third conclusion is that Styles has not been candid with this Court in the affidavits he has sworn in support of his application for leave to adduce the evidence of Dr. Grimm.

65.      The first of Lord Parker's four principles is that the evidence sought to be adduced must be evidence which was not available at the trial.  As was pointed out by this Court in Baglin -v- Attorney General [2005] JCA 064, at para. 37, it is implicit in this principle that the evidence could not have been produced at the trial by the exercise of reasonable diligence.  This principle has not been met in respect of Dr. Grimm.  Furthermore, we emphasize that applications of this sort must be based on reliable material.  Where, as in this case, false or misleading information is put before the Court it does not have a firm foundation on which to base consideration of the exercise of its discretion in the applicant's favour.

66.      What we have just said is sufficient to dispose also of the applications in respect of Peter Styles and Julie Thompson.  But they also fail on other grounds which may be stated quite shortly.  Where there is a relationship between a proposed expert witness and the party seeking to call him which a reasonable observer might think was capable of affecting the views of the expert so as to make him unduly favourable to that party the evidence should be excluded (Liverpool Roman Catholic Archdiocese Trustees Incorporated -v- Goldberg (No. 2) [2001] 4 All E.R. 950).  Mr. Peter Styles is Styles' brother and, therefore, his evidence could not be adduced as expert evidence on the latter's behalf.

67.      The evidence which Styles sought to adduce from Julie Thompson would have been available at the trial and would not be admissible if given by her.  Furthermore, her purported evidence as to Rennes Airport being busy, when scrutinised, turned out to be demonstrably wrong and, in our view, the incident in which the baggage bay door came off is not relevant to any issue in this case.

68.      Although in the normal course of things we would deal next with Day's application for leave to adduce fresh evidence, we think it more convenient to move to that of Carney.  His application relates to four witnesses:

(i)        Mr. G. M. Geary.  He is an engineer with flying experience and leave was sought to adduce expert evidence from him.  In his report he concludes that it would have been physically impossible for the bags containing the cannabis resin to have been dropped from G-SHUG in such a way that they could all have landed in the same field at L'Etacq.

(ii)       Mr. Mark Burby.  He is a helicopter pilot flying in and out of Jersey Airport.  His evidence would be as to lack of radar coverage around Jersey when flying at low altitudes, in refutation of evidence adduced by the prosecution at the trial that no such gaps in coverage could occur, the inference being that drugs could have been dropped from an unidentified aircraft rather than from G-SHUG.

(iii)      Mr. James Aidan.  He is a transport pilot and certified flight instructor.  He would give expert evidence as to the flight path and variations in speed and altitude of G-SHUG on 2^nd October 2003 and purport to comment on various aspects of the prosecution case against Styles.

(iv)      Ms Baljit Kaur.  In October 2003 she was the girlfriend of a friend of Styles.  She would give evidence that on 2^nd October 2003 she was to fly with her boyfriend from Pocklington to France on an aircraft piloted by Styles but that when she got to the airfield she lost her nerve.  The significance of this evidence would lie in explaining the two additional headsets which Styles took on board G-SHUG and it would tend to show that, besides Styles, G-SHUG was not carrying any passengers when it flew to Dinard on that evening.

69.      Mr. Pallot drew our attention to the difficulties that would have been faced by him in obtaining expert evidence, such as that provided by Mr. Geary, in advance of the trial, particularly those caused by the failure of the police to record what they found in the field at L'Etacq on 3^rd October 2003 and the consequent lack of information in the committal statements.  But he accepted that even if these difficulties had not existed he would still not have adduced expert evidence unilaterally.  The essence of Carney's case was that he was not on board the aircraft from which the drugs were dropped.  Had he, through his counsel, taken the lead on the question of whether the drugs, if dropped from G-SHUG, could or could not have landed in that field he would have run the risk of his defence standing or falling on an issue that was not essential for him to win.  Such a course would have been tactically most unwise and we note from the transcript that at the trial Mr. Pallot touched on this issue very lightly indeed both in cross-examination and in his closing speech.  As Mr. Pallot explained to us with characteristic candour, it was the conviction that changed everything.

70.      In our judgment as it is clear that competent counsel would have judged it imprudent to have introduced the fresh evidence had it been available to him, we do not consider that we should exercise our discretion and permit it to be adduced at this stage.  To do so would be to open the door to the "public mischief" to which Edmund-Davies LJ alluded in Stafford [1968] 3 All E.R. 752 of indefinitely prolonging the legal process.  To put it another way, we cannot accept that it is any part of the policy behind the relevant portion of Article 34 of the Law to permit convictions to be quashed in such circumstances.

71.      As to Mr. Burby's evidence, there are three reasons why we refuse leave to adduce it.  First, it is hearsay, depending on what Mr. Burby says that Air Traffic Control told him.  Secondly, and connected with the first, if it is accurate it may well have been available from Air Traffic Control sources prior to the trial but it has not been suggested that any attempt was made to obtain it at that time.  And, thirdly, it falls into the same category as Mr. Geary's evidence: it is not the kind of evidence that competent counsel would have sought to adduce on Carney's behalf at the trial.

72.      We now turn to the evidence of Mr. Aidan and Ms Kaur.  There are some distinctly odd features of the provenance of this evidence.  According to Styles' second affidavit (to which we have referred in paragraph 62 above) Styles had given his counsel instructions to call Mr. Aidan but he was only available during the scheduled third week and the trial lasted only two weeks.  And Styles must have known about Kaur's evidence, and its value, at all material times but yet it was not adduced at the trial on his behalf and no explanation has been offered as to why not.  What is more, Mr. Pallot informed us that the evidence of both Aidan and Kaur was brought to his attention in March 2006 not by Carney or Styles but by Day, who telephoned his office.  Yet another odd feature is that Mr. Pallot has never had any contact with these witnesses, their statements having been furnished to him in typed up form. And we record that the fresh evidence which Styles sought to leave to adduce from his brother is similar to Aidan's expert evidence.

73.      Before giving our ruling on the applications in respect of Aidan and Kaur we turn to Day's application for leave to adduce fresh evidence.  He, too, seeks leave to adduce the evidence of Kaur and, in addition, he seeks leave to adduce evidence from Styles' girlfriend, Julie Thompson.  But this is not the same evidence that Styles sought to adduce.  This time it is evidence as to what Styles told her of his trip to Dinard, both before and after it had occurred, tending to confirm that he had gone there for the film festival and had travelled alone.

74.      It is not difficult to discern the hand of Styles in the application in respect of Aidan, Kaur and Thompson.  All of those witnesses were available to him prior to the trial, could have given evidence apparently helpful to him but were not called on his behalf.  Now they have been distributed to two people whom the Jury held to have been his co-conspirators.  But this has not been done in an open and transparent way.  As far as Carney is concerned it was done through Day and two of the witnesses, as distinct from their evidence, were not actually made available.  And even if Styles' own application for leave to adduce fresh evidence fails, as it has, he stands to benefit if either of the others are allowed.

75.      What we have to ask ourselves is whether we are dealing with two Applicants who genuinely did not know about the existence of certain witnesses or of the nature of their evidence or, as Mr. Baker contended, whether their applications are barefaced attempts by three co-conspirators to manipulate this Court into quashing their convictions so that, at worst, they may have the benefit of a retrial. We are satisfied that the latter is the true position and, accordingly, we decline to exercise our discretion in favour of either Carney or Day and we refuse them leave to adduce the allegedly fresh evidence of the  witnesses to whom we have referred.

76.      We would add, for the sake of completeness that, in any event, we would have refused leave in respect of Aidan because (a) there are indications in his proof of evidence that he is not independent of Styles and, therefore, by extension of the Liverpool Roman Catholic Archdiocese case (see para. 65 above), we consider that he would be precluded from giving expert evidence on behalf of a co-accused and (b) because the rest of his evidence is inadmissible comment; and in respect of Thompson because her evidence is inadmissible hearsay.

I           THE APPLICATIONS FOR LEAVE TO APPEAL AGAINST SENTENCE: GENERAL POINTS

77.      Two points of general application to all four Applicants were made to us.  The first was that the sentencing guidelines laid down in Campbell -v- Attorney General [1995] JLR 136 at p. 147 in respect of cannabis are excessive.  The second is that the guidelines should not be applied to a case of conspiracy.

78.      The first point was argued before us by Mr. Pallot on behalf of Carney and adopted by the other Applicants.  He submitted that the guidelines are based on information which is now at least ten years out of date; are predicated on premises which no longer have any validity; do not reflect the criminality of this sort of offending when considered properly against other offences and other comparable jurisdictions; serve only to increase the attractiveness of Jersey as a destination for illegal substances by driving up prices; and are in urgent need of review.

79.      It seems to us that, besides the States, which can, if it sees fit, legislate, there are three potential sources of impetus for revision in this jurisdiction:  the Attorney General, the Royal Court and the Court of Appeal.

80.      One of the Attorney General's functions is to represent the public interest.  If he were to conclude that guidelines set by this Court had become outdated we would expect him to draw this to the attention of the Court of Appeal in an appropriate case or cases and to provide information necessary to enable it to decide whether review was required and, if so, to what extent.  This has not happened in this case and it is clear that the Attorney General considers that the Campbell guidelines for cannabis continue to be appropriate.

81.      The unwritten constitution of Jersey vests the determination of sentences in serious criminal cases in the Jurats.  It would be open to the Superior Number of the Royal Court to have indicated, through the Commissioner, on the sentencing of these Applicants that the Campbell guidelines have, in its view, become outdated.  Although this course was urged on the Royal Court on the Applicants' behalf, the Commissioner made it clear in his sentencing remarks that the Royal Court considered the Campbell guidelines to be, as the Commissioner put it, correct.

82.      We accept that this Court has power to embark on a revision of guidelines off its own bat.  However, we consider that, in the absence of a supporting signal from either the Attorney General or the Royal Court, this is something that this Court should be slow to do.  The reason is that both the Attorney General and the Jurats are far better placed than is this Court to judge whether consideration should be given to revision.  With the exception of the Bailiff and the Deputy Bailiff, the judges making up the Court of Appeal do not reside in Jersey and are not as familiar with the social and penological issues here that bear on sentencing policy.  It was recognised by this Court in Campbell (at p. 140) that Jersey, as a separate jurisdiction, is free to set its own sentencing levels.  As Neill JA said in Attorney General -v- Pagett [1984] JJ 57 at p. 65:  "... the Royal Court sitting in Jersey will be aware of current attitudes here to sentencing and will know, in particular, what sort of crimes are prevalent and for what crimes it is desirable to retain a severe deterrent sentence."  This could also be said of the Attorney General.

83.      Adopting this approach we do not consider that the imposition of sentences in drug trafficking cases which are much longer than those imposed in the United Kingdom and are different in their proportions to sentences imposed in respect of other crimes, is intrinsically objectionable.  By logical extension we cannot say that the consequent driving up of prices is objectionable either and, accordingly, we decline to initiate the process of review.

84.      The second point was argued by Miss Juste on behalf of de Sousa.  It was contended that, because the possible range of roles in a conspiracy is vast, the Campbell starting point bands are not broad enough to deal with them.

85.      In Campbell's case this Court said quite explicitly that, in relation to the guidelines laid down for cannabis, they were to apply equally to all cases involving the trafficking of Class B drugs on a commercial basis.  Although no express reference was made to conspiracy, we have no reason to doubt that the Court intended to include this offence and, for our part, we can see no compelling reason for excluding it. The application of the guidelines makes allowance for variations in role, as we shall demonstrate.

J          APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE: STYLES

86.      Applying the Campbell guidelines, the Royal Court adopted a starting point of twelve years.  It could find no significant mitigation and therefore sentenced Styles to that period of imprisonment.  In our view the sentence imposed was neither manifestly excessive nor contrary to principle.

K          APPLICATIONS FOR LEAVE TO APPEAL AGAINST SENTENCE: DAY AND CARNEY

87.      As the Royal Court took the view, with which we agree, that these Applicants played similar roles we consider that their applications should be dealt with together.

88.      In Rimmer and Others -v- Attorney General [2001] JLR 373 this Court made it clear that, in determining starting points in drug trafficking cases, regard must be had not just to the amount and value of the drugs but also to the role of the defendant (see p. 387, paras. 20-22). In the instant case this requirement was met by the Crown, which made appropriate adjustments in the starting points it proposed. Yet, although the Royal Court recognised (expressly in Day's case, by implication in that of Carney) that the role played by these Applicants was less than that of Styles, it nevertheless adopted the same starting point of twelve years for all three.  Moreover, in respect of both de Sousa and James (a co-conspirator who had pleaded guilty) the Royal Court adopted the lower starting point of ten years which, given that the amount and value of the cannabis was a constant applicable to all five cases, can only be interpreted as a reflection of their lesser role.

89.      It may be that the lesser role of Day and Carney was taken into account by the Royal Court in assessing the deduction for mitigation (it allowed two years in each case) but, if so, this was not the correct approach and we do not know the extent of any allowance made.

90.      Before dealing with the consequences of this, we turn to the argument advanced by Mr. Pallot on behalf of Carney, and which would, if correct, be applicable also to Day, that the Royal Court was wrong to differentiate between Carney and James.  He argued that Carney ought to have received the same sentence as James (five years) or even less.  In our view, Mr. Pallot's argument on this point confused two different things: the fixing of the starting point and deducting for mitigation.  In respect of James, the Royal Court assessed the starting point in the proper way by taking account of both (a) the amount and value of the drugs and (b) his role.  It concluded that James was the link between England and Jersey as evidenced by numerous telephone calls that he had made.  However, it accepted the view of the Crown that James was further from the source of supply than Day or Carney and adopted a starting point of ten years.

91.      In our opinion it was open to the Royal Court, in fixing James' starting point, on the basis of the material before it, to differentiate between Day and Carney on the one hand and James on the other.  Having reached this conclusion, we have serious reservations about the appropriateness of embarking on a detailed examination of the mitigation available to James and a comparison between it and that available to Day and Carney.  Suffice to say that there were powerful mitigating factors in James' case which were not available to Day or Carney including, of course, James' plea of guilty.

92.      While rejecting the differentiation argument relating to James, we consider, nevertheless, and as we have indicated, that the starting point adopted for both Day and Carney ought to have reflected their somewhat lesser role than that of Styles.  Accordingly, we feel constrained to reduce it to eleven years in each case and, deducting the same period for mitigation as was allowed by the Royal Court, their sentences must be reduced by one year also.

L          APPLICATION FOR LEAVE TO APPEAL: DE SOUSA

93.      Miss Juste contended that the sentence of seven years imposed on de Sousa was manifestly excessive.  Although the Crown accepted that de Sousa was the least involved of all of the defendants and that he was one step further removed from the source of supply than James the Royal Court adopted the same starting point for both James and de Sousa, one of ten years.

94.      In the course of his sentencing remarks the Commissioner stated that "... [in] view of the guideline case the starting point must be one of ten years' imprisonment."  Clearly, this was a reference to Campbell's case which lays down the starting point for over 30 kg of cannabis as "10 years plus".  But in Rimmer (op. cit.) this Court said that the margins of the bands laid down in that case (in respect of heroin and other Class A drugs carried or sold in powder form) were not to be treated as set in stone and pointed out that there may be exceptional cases "...in which on a particular count the starting point may be above or below the band otherwise appropriate" (at p. 390, para. 34).  Miss Juste argued that de Sousa's case was exceptional.

95.      We recognise that this Court must be extremely circumspect in determining that a particular case is exceptional where the Royal Court, for whatever reason, has not done so.  However, we consider that the difference between the roles of Styles, Day and Carney and that of de Sousa is so marked that, if his case were not to be treated as exceptional, de Sousa would be entitled to feel a justified sense of grievance.  In other words, in all the circumstances, a difference in the starting point of two years (Styles) or one year (Day and Carney) is simply too unjust to be right and it is an injustice that we feel bound to correct.  Accordingly, de Sousa's starting point falls to be reduced from ten to nine years and, deducting the three years the Royal Court allowed for mitigation, this produces a reduced sentence of six years' imprisonment.

M         DISPOSITION

96.      In respect of Styles we grant leave to appeal against conviction on the basis that evidence against him which ought not to have been admitted was admitted at the trial.  However, relying on the proviso to Article 26(1) of the Law, we dismiss the appeal as we consider that no substantial miscarriage of justice has actually occurred.  We refuse Styles' other applications.

97.      In respect of Day and Carney we refuse their applications for leave to appeal against conviction and to adduce fresh evidence.  However, we grant each of them leave to appeal against sentence and allow their appeals to the extent that we reduce the sentence imposed on each of them by the Royal Court to one of nine years' imprisonment.

98.      In respect of de Sousa we refuse his application for leave to appeal against conviction but grant him leave to appeal against sentence.  We allow his appeal to the extent that we reduce the sentence imposed on him by the Royal Court to one of six years' imprisonment.

Authorities

Customs and Excise (Jersey) Law 1999.

Director of Public Prosecutions -v- P [1991] 2 AC 447.

Misuse of Drugs (Jersey) Law 1978.

John W [1998] 2 Cr App R 289.

O'Brien -v- South Wales Police [2005] UKHL 26 at para 67 et seq.

R -v- Randall [2004] 1 WLR 56.

Criminal Justice (Evidence and Procedure) (Jersey) Law 1998.

Noor Mohammed -v- The King [1949] AC 183.

Makin -v- A-G for NSW (1894) AC 57.

Court of Appeal (Jersey) Law 1961.

Aladesuru -v- The Queen [1956] AC 49.

R -v- Hopkins-Husson [1949] 34 Cr. App. R. 47.

Attorney General -v- O'Brien [2006] UKPC 14.

Attorney General -v- Gorvel [1973] JJ 2503.

R -v- Parks [1961] 46 Cr. App. R. 29.

Barnes -v- Attorney General [1987-88] JLR 669.

Baglin -v- Attorney General [2005] JCA 064.

Liverpool Roman Catholic Archdiocese Trustees Incorporated -v- Goldberg (No. 2) [2001] 4 All ER 950.

Stafford [1968] 3 All ER 752.

Campbell -v- Attorney General [1995] JLR 136.

Attorney General -v- Pagett [1984] JJ 57.

Rimmer and Others -v- Attorney General [2001] JLR 373.