Farrell, R. v [2009] EWCA Crim 511

[2009] EWCA Crim 511

Case No 2007/06600/B4

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Friday 13 March 2009

Between

R E G I N ACrown

The Strand

London

WC2A 2LL

B e f o r e:

LORD JUSTICE AIKENS

MR JUSTICE TUGENDHAT

and

MR JUSTICE NICOL

__________________

- v -

Between

STUART JAMES FARRELL

__________________

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__________________

Mr M I Davies appeared for Appellant

Mr G Reeds appeared for Crown

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J U D G M E N T

[1]On 11 April 2006, in the Crown Court in Liverpool, Stuart Farrell, pleaded guilty to one count of conspiracy to supply a controlled drug of Class B (count 1) and to a count of conspiracy to supply a controlled drug of Class A (count 2). On 12 June 2006 he was sentenced by His Honour Judge Boulton to eight years' imprisonment on count 1 and to nine years' imprisonment, concurrent, on count 2. In addition, the judge ordered that he should be returned to custody to serve a consecutive period of twelve months because at the time of the offences he was on licence from an earlier sentence of imprisonment which had an unexpired term of 621 days. That order was made under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000. Mr Farrell was also made the subject of a five year Travel Restriction Order following the date of his release from custody.

[2]On 13 November 2007 the judge also made a confiscation order against Mr Farrell in the sum of £504,031.08.

[3]There are two aspects to this sentence which Mr Farrell wishes to challenge in this court. The first contends that the judge ought to have made an order under section 240 of the Criminal Justice Act 2003 that the 206 days which he had spent on remand should count towards his sentence. The single judge granted him leave to argue this aspect of his appeal.

[4]The second aspect concerns the confiscation order. The judge determined that the benefit which the applicant had obtained from his offending exceeded the available amount. Accordingly, it was the latter which could determine the maximum amount of the confiscation order. In assessing that amount the judge included the value of a property at 166 St Helens Road, Liverpool. The applicant accepted that he had in the past owned this property, but it was his contention that in 2002 he had sold it effectively and completely to his parents. The judge considered that this transaction was a sham and accordingly included the value of the property in deciding the available amount. The applicant wishes to challenge that conclusion and, if necessary, to rely on fresh evidence to demonstrate that the transaction was not a sham. As far as this aspect is concerned, the single judge concluded that the trial judge was entitled to make the findings that he did. In renewing the application for leave, the applicant has amended his grounds so as to include reliance on the fresh evidence if that is necessary.

[5]We return to the ground for which the single judge gave leave: whether the trial judge should have deducted the time spent on remand from the sentences which he imposed. With some important qualifications, section 240 of the Criminal Justice Act 2003 requires a judge to order that a sentence of imprisonment shall be reduced by the number of days that the defendant has spent on remand. This way of dealing with time spent on remand was an innovation. Before then section 67 of the Criminal Justice Act 1967 automatically reduced a sentence of imprisonment by the number of days spent on remand. The new duty on a sentencing judge applies where the offence is committed after the commencement of section 240: see section 240(1). The section was brought into effect on 4 April 2005: see the Criminal Justice Act 2003 (Commencement No 8 and Transitional and Saving Provisions) Order 2005.

[6]In the present case there appears to have been some uncertainty as to when the appellant's offences took place. Count 1 of the indictment charged him and others with a conspiracy between 14 September 2004 and 17 November 2005. Count 2 charged a conspiracy between 28 February 2005 and 17 November 2005. It can be seen, therefore, that both conspiracies spanned the critical date of 4 April 2005. However, section 240(9) provides:

"Where an offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it shall be taken for the purposes of subsection (1) to have been committed on the last of those days."

That would suggest that both count 1 and count 2 were to be taken to have been committed on 17 November 2005 and so governed by the 2003 Act.

[7]However, there appears to have been an assumption at the time the sentences of imprisonment were imposed that the former regime would apply to them. In his sentencing observations

Judge Boulton said this:

"[Farrell] is also in breach of the licence flowing from his commission of the offence within the period of licence following his release from the six year sentence back in June 2001. By reason of totality I do not think it is right to bring all of that licence into operation but it must come in in some form, and I reduce the total to one of twelve months. Twelve months' imprisonment will begin to run from today, and consecutive to that will be nine years' imprisonment. How that falls between the old law and the new is not for me to say. It looks as though it is the old law only and, therefore, the old calculation of the right to apply for parole is the one that existed before the 2003 Act came into force."

But, the National Offender Management Service took the view that the appellant's position was governed by the 2003 Act and that in the absence of a judicial order there would be no allowance for the time spent on remand.

[8]The parties went back before the judge on 27 April 2007. The judge was sympathetic. He said that if he had had the power to order that the period spent on remand should count towards the appellant's sentence, he would have so ordered. However, he also thought that he no longer had any such power. He maintained his view that it had indeed been the old regime which applied to the sentence.

[9]A few days later, on 4 May 2007, the parties were again in front of Judge Boulton. On this occasion he said that he thought that a provision such as appears in section 240(9) raised only a rebuttable presumption as to when the offence was committed. That accords with the tentative views of this court in R v Howe

[2007] 2 Cr App R(S) 11

. In the present case the judge considered that the presumption was rebutted by the defence that the appellant had committed the offence before the relevant date and that it was treated as such.

[10]That view is difficult to square with the way in which the prosecution opened the case after the guilty pleas had been tendered. As far as count 1 was concerned, the prosecution opening of the facts referred to significant conversations by the appellant in September and October 2005. That was plainly after the critical date of 4 April. The prosecution's case on count 1 was that there had been an industrial scale conspiracy over the whole of the period pleaded in the indictment.

[11]When the date on which an offence takes place is of critical importance in determining the length of a defendant's sentence, it is vital that there should be no ambiguity. Assuming, as we do, that a provision such as that in section 240(9) creates only a rebuttable presumption, the defendant and the Prison Service must be in a position to know whether court did find it to be rebutted on the facts of the particular case. There was no such clear ruling in the present case at the time that the sentences were imposed. We do not consider that the remarks of Judge Boulton on either 27 April or 4 May 2007 provided it. That left the position governed by the indictment and section 240(9) with the result that section 240 did apply to the appellant. This in turn meant that, subject to the exclusions to which we will come, the judge was obliged to direct that the days that the appellant had spent on remand would count towards his sentence: see section 240(3).

[12]A judge is not under that duty in two situations. The first is where the case comes within the rules made by the Secretary of State: see section 240(4)(a). The rules that have been made provide that there is no such duty where the term of imprisonment would fall to be reduced by the same day by virtue of section 67 of the Criminal Justice Act 1967: see Rule 2(b). This is a sensible provision to avoid double counting (or rather double discounting). But the period that Mr Farrell spent on remand pending his sentences for the present matters would not fall to be reduced by section 67.

[13]The second situation in which a judge is not obliged to make allowance for time spent on remand is where "it is in the opinion of the court just not to give [such] a direction": see section 240(4)(b). However, in those circumstances the judge must state in open court that he or she is of this opinion and the reasons for it: see section 240(6)(b). In this case Judge Boulton did neither of those things.

[14]In a letter dated 16 January 2008 from an officer of the Liverpool Crown Court, Mr Farrell was told as follows:

"In clarifying your sentence, Judge Boulton has stated that the twelve months were ordered to be served first and before the nine years described above. This calculation takes account of 206 days spent on remand and a further 50 days rounded down, so that the defendant should spend no longer in prison than was absolutely necessary."

[15]It seems to be suggested here that the period of recall was reduced from the total outstanding sentence because of the period spent by Mr Farrell on remand. However, that does not fit easily with the explanation which Judge Boulton gave at the time, namely that the entirety of the outstanding period could not be re-imposed, consistent with the principle of totality. In any event, if the judge had deliberately decided not to make a direction that time spent on remand should not count, he would have needed to observe the requirements of section 240(6)(b).

[16]In conclusion, our view is that section 240 did apply to the sentences imposed by Judge Boulton and that there was no reason not to make the direction required by section 240(3). Accordingly, this aspect of the appeal is allowed and we will direct that the 206 days which the appellant spent on remand will count against the sentences imposed on him by Judge Boulton.

[17]We turn to the confiscation aspect. In making his findings

the judge said:

"It is clear from a transcript of a recording of conversations involving this defendant that he is very well aware of the need to hide as untraceable any property that has come to him as a result of drug trafficking and I have had my attention drawn in the statement of Mr Chadwick to his various utterances which show just how careful he was at the relevant time." 18. ".... I simply find that incredible in all the circumstances because I know what the defendant's father's income was at the relevant time and I know that he purports to have purchased two or three properties in Spain a year before this for a total of something in the region of £200,000. It seems to me incredible that he would raise a mortgage of £50,000 when he had realisable assets of four times that at his disposal." 19. "

I do not know whether it was an undervalue but certainly the property in my view remains that of this defendant in all but name and to that extent he holds the property and holds it at all relevant times."

[18]The judge may not have used the term "sham" in its technical sense of a transaction which was not what on its face it purported to be. We do not think that the judge used it in this sense because he seemed to acknowledge that "in name" the applicant was no longer the owner of the property. We think that he meant that the transaction was simply a device to conceal the fact that, in reality, the applicant remained the owner, ie that he retained the equitable interest in the property.

[19]Mr Davies on behalf of the applicant presents two grounds of appeal in relation to the confiscation matter. His first ground is that, independently of the fresh evidence which he would seek to adduce, Judge Boulton made findings that were perverse. We consider that that ground of appeal is unarguable. The judge had heard evidence from the applicant. He had reached findings as to the credibility of the applicant's evidence. In our view the findings of fact by the judge on those matters cannot even arguably be characterised as unreasonable or perverse.

[20]Mr Davies' second ground of appeal rests on his application to adduce fresh evidence. The elements of fresh evidence which the applicant would wish to adduce are, first, witness statements from his parents who say that they purchased the property and that they have made the mortgage payments. They say that their son has no legal interest in the property. There is also a completion statement from solicitors who apparently conducted the conveyance, an extract from the Land Registry showing title in the names of the applicant's parents, a copy of the mortgage offer of £50,000 from Birmingham Midshires Building Society in relation to the property, copies of certain bank statements from the applicant's parents and copies of their wills. Today, in addition, the applicant has produced certain further statements.

[21]None of this persuades us that the applicant would have had a reasonable chance of displacing the judge's findings. The wills make no reference to specific property. The bank statements show payments out of the mortgage amount (£417), but only for a very limited period. These payments are not inconsistent with covert assistance being provided to them by the applicant.

[22]The other material is also consistent with the applicant in reality remaining, as the judge found, the equitable owner of the property. The new statements show that payments were made to the building society, but not who paid them. Some further statements from another account show payments out matching the mortgage repayment instalments, and balancing credits into the same account, but they do not show the origin of those credits.

[24]The applicant also has applied today for leave to call Mr Farrell Senior to give oral evidence to expand on his written statement. It was not clear quite what Mr Farrell Senior would say in addition to what he had already said in his written statement. We refused this application. Any additional evidence that the applicant wished to present to the Court of Appeal ought to have been reduced to writing in the normal way. Further, Mr Farrell Senior had been available to give evidence at the Crown Court and, as we were told by Mr Davies, a deliberate decision had been taken not to call him. We can see no arguable reason why he should be allowed to do so in this court. We would add that we can see no arguable reason why any of this fresh evidence should be admitted by the Court of Appeal under section 23 of the Criminal Appeal Act 1968. We can see no reasonable explanation for why this evidence was not adduced before the court below. That is one of the matters to which this court would be obliged to have regard: see section 23(2)(d) of the 1968 Act. Mr Farrell Senior, as we have said, was available to be called. All the documents which Mr Davies seeks to place before the court now likewise would have been in existence and available to be adduced before the court below.

[25]Mr Davies tells us that the applicant's solicitors had not informed him that it would be desirable for these documents to be available and their absence was a reason why Mr Farrell Senior was not called to give oral evidence.

[26]We find none of this persuasive. The applicant had previously been involved in an earlier prosecution, as the judge mentioned. That, too, had involved confiscation proceedings. He was well familiar with the process. He was well aware from the statement provided by the prosecution that they regarded him as the owner of 166 St Helens Road. Any evidence he wished to adduce to the contrary ought to have been presented to the Crown Court.

[27]In conclusion, we consider that this application is wholly without merit. It is refused. ________________________________________