S & Ors, R v [2008] EWCA Crim 1636

No: 200800100A9, 200706607A9Case No 200706668A9[2008] EWCA Crim 1636
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 4 July 2008
Strand
London, WC2A 2LL
B e f o r e:
LADY JUSTICE HALLETT
MR JUSTICE TEARE
Venue RECORDER OF BIRMINGHAM
(Sitting as a Judge of the Court of Appeal Criminal Division)
R E G I N A
v
(1) S
(2) SEHRA
(3) AZAM
(4) ABDULLAHI
Computer Aided Transcript of the Stenograph Notes of
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(Official Shorthand Writers to the Court)
Mr W Clegg QC appeared on behalf of the First Appellant
Mr E Henry appeared on behalf of the Second Appellant
Mr S Farrell QC appeared on behalf of the Third Appellant
Mr J Cross appeared on behalf of the Fourth Appellant
Ms A Hunter and Mr D Milne appeared on behalf of the Crown
J U D G M E N T
Between
S & OrsDefendantRCrown

LADY JUSTICE HALLETT: Teare J will give the judgment of the court.

[2]MR JUSTICE TEARE: There are before the court four appeals against sentence. The first appellant, who was at the time of his offences a solicitor of the Supreme Court, pleaded guilty on 22 December 2006 and on 22 March 2007 at the Kingston Crown Court to three counts of perverting the course of justice; one count of contempt of court; one count of conspiracy to obtain property by deception; and one count of false accounting. On 5 December 2007, he was sentenced to 13 years on each count of conspiracy to pervert the course of justice concurrent; 18 months consecutive on the conspiracy to obtain property by deception; and concurrent sentences of four months and nine months on the contempt of court and false accounting counts. Thus the total sentence was 14 and a half years, less time spent in custody on remand of 551 days.[3]The second appellant, Mandip Sehra, pleaded guilty on 22 March 2007 to doing an act tending or intending to pervert the course of justice, and conspiracy to pervert the course of justice. On 27 November 2007, he was sentenced to four years and ten months on the first count, and 14 months consecutive on the second count. Thus the total sentence was six years, less 524 days spent in custody on remand.[4]Mohammed Azam, the third appellant, pleaded guilty on 22 March 2007 to conspiracy to pervert the course of justice, and was sentenced on 27 November 2007 to four years and ten months, less 144 days spent in custody on remand.[5]Mohammed Abdullahi, on 5 February 2007, pleaded guilty to doing an act tending or intended to pervert the course of justice. On 27 November 2007, he was sentenced to four years and two months, less 477 days spent in custody on remand.[6]Before summarising the facts of the offences, it is necessary to mention Ahmed Osman Hersi. He pleaded guilty to conspiracy to possess firearms with intent to endanger life; conspiracy to possess ammunition with intent to endanger life; possession of firearms with intent to endanger life; possession of ammunition with intent to endanger life; being concerned in the supply of class A drugs; two counts of conspiracy to pervert the course of justice; money laundering; and two counts of handling stolen goods. As that recitation of his offences indicates, he was heavily involved in drug dealing. His offending was at the centre of the offences committed by the four appellants.[7]The facts of the offences committed by the four appellants were as follows. On 18 October 2004, Hersi was stopped by police while driving a Mercedes in Shepherd's Bush. In the vehicle police found £32,000 in cash. He told the police the vehicle and the money belonged to his boss. He was arrested, and in custody asked for his solicitor, the first appellant. In consultation with him, Hersi told him he was going to say that the money belonged to Azam. Azam ran a car rental business, and Hersi had rented vehicles from him on a number of occasions. It was the Crown's case that Hersi and Azam had an arrangement that Azam would cover for Hersi if he was ever stopped moving large sums of money around. In interview, in the presence of the first appellant, Hersi said that Azam had given him the money to purchase a car from auction. Significantly, at the end of the interview, the first appellant asked the interviewing officers:
"I fully appreciate there isn't enough to show where the money has come from but at what stage would you be happy for me to contact this chap Mohammed [Azam] because I want to give you the opportunity first to avoid the suggestion that he has got his head together with Mohammed..."
This was an attempt to throw the officers off any trail back to unveiling this conspiracy to pervert the course of justice.[8]On 22 October 2004, Azam produced documentation in relation to the cash seized from Hersi, and in interview said he often used Hersi to buy cars at auction. The officers were satisfied, and the money was returned to Azam in December. When he collected it, he was continually on the phone to the first appellant. The investigation was terminated. Azam kept £7,000 for his role, and the first appellant was paid £5,000 for his services.[9]In January 2005, Hersi was involved in a firearms incident in Hackney, and during his getaway he crashed a Porsche which he had rented from Azam. £25,000 damage was caused to the vehicle, and Azam later claimed that his motivation for getting involved in a second attempt to cover money seized on 31 May 2005 was to recoup money for that damage. On that date, Hersi, who had been under police surveillance, was arrested and found to be in possession of £29,000. His home address was searched, and approximately 1kg of heroin was found. In interview, he was represented by the first appellant and gave a "no comment" interview. He was released on bail. Once again, through the first appellant, Azam lay claim to the cash.[10]On 30 August 2005, he went to Colindale Police Station, accompanied and represented by the first appellant, and said the £29,000 was his. He said it was a cash float from his car hire company. In the meantime, the money was sent to Mass Spectrometry for analysis and was found to be significantly coated with heroin.[11]On 22 September, Azam was arrested. In interview, he admitted that Hersi and the first appellant had got him to claim the money. He denied that he knew Hersi's money had come from drugs, but guessed that it came from some sort of criminality. With regards to the previous £32,000, he said that he had a meeting with the first appellant and Hersi, and was told how to carry the plan out. Of the £29,000, he was to keep at least £16,000 as compensation for the Porsche Hersi had crashed in January. Those events formed the basis of one count of conspiracy to pervert of the course of justice against the first appellant and Azam.[12]Earlier, on 6 May 2005, another large amount of money was intercepted by police. On that occasion, it was being carried by Abdullahi, Hersi's brother. He was found by police to be in possession of £15,000 and he was arrested. He gave a false name and asked to speak to his solicitor, the first appellant. Officers were unhappy with the name Abdullahi gave, and they had difficulty contacting the first appellant. In the meantime, Hersi was worried that the £15,000 had not arrived, and when he learnt that his brother had been arrested, he contacted the first appellant. He eventually arrived at the police station and a pre-prepared statement was read out at interview. In the statement, Abdullahi claimed the £15,000 belonged to Sehra, who ran a wholesale business. He was dropping off the money at a cash and carry for him. In truth, Abdullahi and Sehra had never met. However, the first appellant and Sehra had known each other for a number of years. In the meantime, the money was analysed and found to be coated in high levels of heroin.[13]On 28 June, Sehra attended, accompanied by the first appellant, with documentation for the money. However, he was arrested for money laundering. In interview, he said he had given the money to Abdullahi to give to a company called Stenford Trading. Enquiries revealed that Stenford Trading was no longer in business. On 7 February 2006, he was arrested again and admitted that the money was not his and that he had been put up to it by the first appellant. On 20 March 2006, Abdullahi was arrested for his involvement in attempting to pervert the course of justice.[14]These events formed the basis of a former count of conspiracy to pervert the course of justice against the first appellant, Sehra and Abdullahi. After Azam and Sehra had confessed their collusion with the first appellant, he (the first appellant) devised a plan to discredit the investigating officers. As part of that plan, Sehra indicated a willingness to co-operate with police in their investigations into the first appellant. A Colin Knott was instructed as his new solicitor. Detective Constable Haddock was appointed Sehra's point of contact, and Sehra tape-recorded conversations where he indicated to DC Haddock that he was willing to embellish information against the first appellant, and sought DC Haddock's approval to do so. He also recorded conversations he had with Colin Knott. Copies of these recordings were recovered in files and laptops found in Sehra's possession. A laptop recovered from the first appellant showed that the files had been manipulated, and it was the Crown's case that they were to be used to form the basis of suggestions of corrupt practices on the part of Colin Knott and DC Haddock. However, DC Haddock emphatically and repeatedly told Sehra that he should only ever tell the truth about his dealings with the first appellant.[15]When Sehra was arrested for the last time on 20 June 2006, he said he did not know where the recording device was, as the recordings had been made professionally by four men at a cost of £15,000. When the first appellant was arrested on 31 May 2006, a number of digital voice recordings were found on his computer. They were conversations between Sehra and DC Haddock, and Sehra and Colin Knott. These events formed the basis of the third count, a conspiracy to pervert the course of justice, against the first appellant and Sehra.[16]During the investigation, there was a search of the first appellant's family home at the Fairway, Wembley, and one of the items recovered was a mobile telephone. It was found to contain photographs of the jury in a conspiracy to murder trial. At that trial, he had represented one of the defendants. There was also a photograph of an exhibit. They were taken on 13 June 2003 in court 1 at the Central Criminal Court and constituted a case of contempt.[17]Police also executed a search at the offices of Mehra and Co solicitors, the place of the first appellant's employment. There were no records found in the Azam and Sehra files, and his partner, Sunil Mehra, said he did not know where the first appellant kept his records. From the documentation recovered, it became clear that a fraud was being perpetrated on the Legal Services Commission, causing them to make payments to Mehra and Co, and the first appellant's previous place of employment, Wraite and Co. Claims had been made for the services of interpreters, which were either unnecessary or not employed at all. Invoices in the sum of £51,599 were submitted to the Legal Services Commission. He had set up two interpreting firms and fraudulent invoices were submitted. Mehra admitted his role in the fraud. This was the offence of conspiracy to obtain payments by deception, admitted by the first appellant.[18]Police also executed a search warrant at the officers of Sunaji and Co, the accountants used by Mehra and Co. Sunaji told officers that the first appellant called him that morning, saying that he needed to discuss with him as a matter of urgency the £75,000 police had found at the first appellant's home address. In the end the first appellant turned to another accountant, Kamboj, for assistance. Kamboj said he had received a letter from the first appellant's mother, saying that the family business wished to submit new accounts as they had under-declared their income. This letter was forwarded to the tax office by Kamboj three days after the police had discovered the £75,000. Kamboj later said that the first appellant had written the letter and his mother signed it. His father was present and so was his brother. The letter was dated 30 January and so predated the police seizure of the £75,000. Analysis of the letter revealed that it was in fact written by the first appellant's brother. It was the Crown's case that he and the first appellant had created the document to frustrate the police investigation. This was the offence of false accounting.[19]We shall deal first with the appeal of the first appellant. The judge said expressly that he sentenced only on the basis of the offences which had been admitted by him. On the other hand, he took into account that, by conspiring to pervert the course of justice in the way he had admitted, the first appellant had assisted, promoted and allowed Hersi to continue to deal in drugs. The judge said expressly that he was guided by the level of sentences on drug dealers who dealt on a very large scale.[20]We consider that the judge was undoubtedly correct to take into account that the conspiracies to pervert the course of justice involved assisting a serious drug dealer to retain the proceeds of his criminal conduct and to discredit the police officers who were investigating that criminal conduct. However, he was wrong to be guided by the level of sentences for large-scale drug dealers. The appellant had not been charged with, and had not admitted, such a crime. His criminality lay in conduct which undermined the administration of justice, and not in conspiring to supply drugs on large scale: see the discussion of this principle in Walsh and Nightingale [1993] 14 Crim App R (S) 671 and Land and Khaliq [2006] EWCA Crim 2856. That said, the fact that his actions were linked with drug trafficking on a large scale was a seriously aggravating feature of the appellant's offences.[21]As to the level of sentence which appropriately reflects the level of criminality involved in the appellant's conduct, counsel submitted that the starting point was eight to nine years, which should be reduced to reflect the plea of guilty and other mitigation. We were referred to the recent case of Jones [2008] EWCA Crim 348, where an appellant had set about the task of derailing a murder trial by intimidating a principal witness. A sentence of 12 years after a trial was described by Sir Igor Judge (President of the Queen's Bench Division) as "the heaviest sentence imposed for this particular offence, at any rate so far as the law reports are concerned". That sentence was upheld. In cases involving corrupt police officers, sentences in the range of five to seven years have been upheld: see an article entitled "Perjury and perverting the course of justice" by Professor Susan Edwards [2003] Crim LR 525 at page 538. But it is to be noted that in King [1999] 2 Crim App R (S) 284, this court said that a sentence of nine years was an appropriate starting point for a defendant who had been a police officer for some four years and had gone into business, but who then made use of the know how and contacts he had established as a police officer in the course of a conspiracy to pervert the course of justice and to corrupt police officers.[22]These cases suggest that the sentence for conspiracy to pervert the course of justice can be in double figures in very serious cases. So one turns back to this case. The appellant, a solicitor aged 32 with no previous convictions, took a major part in a conspiracy to assist a large-scale drug dealer retain the proceeds of his crime. It spanned a period of time from October 2004 to June 2005. After Azam and Sehra had confessed their collusion with the appellant, he then set about, with Sehra, devising a plan to discredit the investigating officer and a solicitor in 2006.[23]We regard this latter conspiracy as a very serious conspiracy, because had a police officer been discredited, not only this investigation could have been frustrated, but also other investigations in which the investigating officer had participated. Its seriousness at least matches the conspiracy to enable the drug dealer to retain the proceeds of his crime, and perhaps exceeds it.[24]In judging the length of sentence which reflects the appellant's wrongdoing, it is appropriate to bear in mind that the sentence for the conspiracy to discredit the investigating officer could properly have been a consecutive sentence. Taken together, these conspiracies were very serious examples of conduct intended to undermine the course of justice. They amounted to a sustained course of corrupt conduct, in gross breach of the trust placed in the appellant as a solicitor, designed to assist a major drug dealer.[25]In our judgment, in the absence of a plea of guilty, the appropriate sentence on the three counts of conspiracy to pervert the course of justice would have been in double figures. A substantial element of deterrence is not out of place, having regard to the special and serious aspects of the appellant's behaviour.[26]It is then necessary to take into account the plea of guilty and the other matters raised in mitigation. However, there is a yet further matter to take into account, and that is the sentence of 18 months consecutive for the offence of conspiracy to obtain property by deception. The amount involved was over £50,000 and was a conspiracy by a solicitor to extract that sum from the Legal Services Commission. That sentence was less than it would otherwise have been because the judge had regard to the principle of totality. We must also have regard to that principle, but are less constrained by it than the judge because, in our judgment, the starting point for the conspiracies to impede the administration of justice was significantly less than that adopted by the judge.[27]We are not able to pass a more severe sentence for the conspiracy to defraud the Legal Services Commission, but in deciding by how much the starting point for the three conspiracies should be reduced to reflect the available mitigation, we take into account the need to reflect in the resulting sentence the total criminality manifested by the appellant's conduct, including the conspiracy to defraud the Legal Services Commission. For that reason we consider that it is appropriate not to reduce the starting point by as much as would usually be done to reflect the plea of guilty and other matters relied on in mitigation.[28]Taking into account all of the material before us, some of which was not before the judge, we consider that the sentence on counts 4, 5 and 9, the conspiracies to pervert the course of justice, should be eight and a half years concurrent. When account is taken of the further sentence of 18 months for the conspiracy to defraud the Legal Services Commission, the total sentence will be ten years instead of the 14 and a half years ordered by the judge. We therefore allow the appeal to that extent.[29]We now consider the appeal by Sehra. He was a friend of the first appellant. He is aged 31 and has been involved in the wholesale wine and spirits business. He has one previous conviction for dishonesty in 1996. He pleaded guilty to one count of perverting the course of justice and one count of a conspiracy to pervert the course of justice. The first count involved providing a false story to the police in respect of the sum of £15,000 found in the possession of Abdullahi, Hersi's brother. The second count involved a conspiracy with the first appellant to discredit the investigating police officer. He was sentenced to a total of six years' imprisonment.[30]The first ground of appeal is that the judge sentenced on a wrong factual basis, namely that Sehra knew of Hersi's involvement in drug dealing. This was stated by the prosecution in its sentencing opening. The signed basis of plea does not expressly assert that Sehra did not know of Hersi's involvement in drug dealing, but states that he only became involved at the first appellant's request. The Crown accepted in their sentencing opening that neither Hersi nor Abdullahi knew Sehra. There was no Newton Hearing. However the sum of money involved was £15,000. He must have appreciated that the money was connected with criminal conduct. Moreover, he then went on to take part in the further and very serious conspiracy to discredit the investigating officers. We shall consider the second ground of appeal that the sentence was excessive on that factual basis.[31]Both counts were serious offences and obviously justified a substantial prison sentence. The judge must have had in mind, in the absence of a plea of guilty, a sentence in the region of eight to nine years. As we have said, the conspiracy to discredit the investigating officer was particularly serious. It could properly have justified a longer sentence than that for the conspiracy relating to the £15,000. The sentences could properly have been consecutive. The judge ordered consecutive sentences of four years and ten months on the £15,000 conspiracy, and one year and two months on the conspiracy to discredit the investigating officer. We cannot increase the latter sentence, but when we assess the length of sentence appropriate to reflect the criminality in both offences, we are in agreement with the judge that a total sentence of six years on a plea properly reflects that criminality. Sehra's appeal is therefore dismissed.[32]We now turn to the appeal of Azam. He was 48 years old with a conviction for dishonesty in 1996. He ran a car leasing and self-drive company. He was sentenced to four years and ten months in respect of one count of conspiracy to pervert the course of justice. It involved two false accounts as to the ownership of money found in the possession of Hersi. The sums involved were £32,000 and £29,000.[33]The first ground of appeal is, again, that the judge sentenced on the basis that Azam knew that the money involved was the proceeds of Hersi's drug dealing. There was a dispute as to this between the Crown and the prosecution. Azam had a business in which he rented out high performance cars. Hersi was a customer of his. Azam said he had lied to the police at the request of the first appellant, hoping that the money could be used to pay off a debt owed to him by Hersi.[34]Counsel said in mitigation that Azam did not know the nature of Hersi's enterprise, but Azam had accepted that he guessed that the money came from some sort of criminality. There was no Newton Hearing. The sums of money involved showed that Azam must have guessed that the money came from serious criminal conduct. We shall assess the second ground of appeal, that the sentence was excessive, on that basis.[35]The judge must have had in mind that in the absence of a plea a sentence in the region of seven and a half years was appropriate. Notwithstanding what we have said about his state of knowledge, the fact that Azam's conduct was in fact linked with large-scale drug trafficking remains an aggravating feature of his offence. If he chose not to enquire what was the precise nature of the criminal conduct in which Hersi was involved, he must take his chance as to what it was.[36]Nevertheless, bearing in mind that, unlike Sehra, he was not involved in the conspiracy to discredit the investigating officer, and allowing for the plea of guilty and other mitigating factors, we consider that the appropriate sentence for Azam was three and a half years. The appeal is allowed to that extent.[37]Finally, we come to the appeal of the fourth appellant, Abdullahi. He was aged 21. He is the brother of Hersi. He has convictions dating from when he was a juvenile for robbery and other offences of dishonesty. He was sentenced to four years and two months for one count of perverting the course of justice. He gave a false account to the police to explain the sum of £15,000 found in his possession. He was aware that Hersi, his brother, was involved in drug dealing. The false account which he gave to the police had been provided to him by the first appellant.[38]It has been submitted that the sentence was excessive. The judge's starting point must have been about six years. It is necessary to bear in mind that Abdullahi gave the police a false account knowing that his brother was involved in drug dealing. He must have appreciated that if his false account had been accepted, he would have been able to return the money to his brother, Hersi, for him to use further in his drug dealing.[39]Nevertheless, bearing in mind that, unlike Sehra, he was not involved in the conspiracy to discredit the investigating officer, and allowing for the plea of guilty and other mitigating factors, we consider that the appropriate sentence was three years. His appeal is allowed to that extent.