Patel & Ors v R. [2010] EWCA Crim 976

[2010] EWCA Crim 976Case Nos: 200900257 C1; 200900458 C1; 200901178 C1; 200901147 C1IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SNARESBROOK
His Honour Judge Birts QC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/04/2010
Before
LORD JUSTICE STANLEY BURNTONMR JUSTICE DAVID CLARKEHIS HONOUR JUDGE STEWART QC(sitting as a Judge of the Court of Appeal Criminal Division)
Between
SHILPA PATELAppellants/ApplicantsNICHOLS DRAKOUAppellantEDWARD LEVYAppellantABDULHAMID ELDOWAppellantTHE QUEENRespondent
M Magarian for Shilpa Patel; D Wood for Nicholas Drakou and Edward Levy; M Latham for Abdulhamid EldowD Markham and A Mazibrada for CPSHearing Hearing date : 14 April 2010
Judgment
[1]On 11th December 2008 at the Crown Court at Snaresbrook before H.H.J. Birts QC and a jury, Shilpa Patel was convicted of two counts of conspiracy to rob (counts 7 and 9) and two counts of conspiracy to have a firearm with intent to commit an indictable offence (counts 8 and 10). Nicholas Drakou was convicted of one count of conspiracy to rob (count 11) and one count of conspiracy to have a firearm with intent to commit an indictable offence (count 12). Edward Levy was convicted of two counts of robbery (counts 3 and 5), two counts of having a firearm with intent to commit an indictable offence (counts 4 and 6), three counts of conspiracy to rob (counts 7, 9 and 11), three counts of conspiracy to have a firearm with intent to commit an indictable offence (counts 8, 10 and 12) and he pleaded guilty after the jury was sworn to one count of possessing a prohibited weapon (count 13) and one count of possessing ammunition without a firearm certificate (count 14). On 12th December 2008, Abdulhamid Eldow was convicted of one count of possessing a prohibited weapon (count 13) and one count of possessing ammunition without a firearm certificate (count 14).[2]On 30th January 2009 they were sentenced by HH Judge Birts QC as follows: Count Patel Drakou Levy Eldow 3 (robbery) - - IPP with a min. term of 10 ½ years - 4 (having a firearm with intent) - - IPP with a min. term of 10 ½ years - 5 (robbery) - - IPP with a min. term of 10 ½ years - 6 (having a firearm with intent) - - IPP with a min. term of 10 ½ years - 7 (conspiracy to rob) 7 years imp. - IPP with a min. term of 10 ½ years - 8 (conspiracy to have firearm with intent) 3 years’ consec - IPP with a min. term of 10 ½ years - 9 (conspiracy to rob) 3 years’ conc - IPP with a min. term of 10 ½ years - 10 (conspiracy to have firearm with intent) 3 years’ conc - IPP with a min. term of 10 ½ years - 11 (conspiracy to rob) - IPP with a min. term of 7 years IPP with a min. term of 10 ½ years - 12 (conspiracy to have firearm with intent) - IPP with a min. term of 7 years conc. IPP with a min. term of 10 ½ years - 13 (possessing prohibited weapon) - - 5 years’ imp. conc. 3 years’ imp. 14 (possessing ammunition without certificate) - - 2 years’ imp. conc. 2 years’ imp. conc. TOTAL 10 years’ imprisonment less 71 days spent on remand. Indeterminate sentence of Imprisonment for Public Protection with a minimum term of 7 years less 25 days spent on remand Indeterminate sentence of Imprisonment for Public Protection with a minimum term of 10 ½ years less 433 days spent on remand 3 years’ imprisonment less 49 days spent on remand[3]A co-defendant, Mark Vernegepleaded guilty to four counts of conspiracy to rob (counts 5, 13, 15 and 17 of the joinder indictment), four counts of conspiracy to have a firearm with intent to commit an indictable offence (counts 6, 14, 16 and 18 of the joinder indictment), three counts of robbery (count 9, 11 and 19 of the joinder indictment) and three counts of having a firearm with intent to commit an indictable offence (counts 10, 12 and 20 of the joinder indictment). He was sentenced to a total of an indeterminate sentence of imprisonment for public protection with a minimum term of 7 years less 433 days spent on remand.[4]On 14 April 2010 we heard the following appeals and applications:(i) Shilpa Patel’s appeal with leave of the single judge against her conviction, on the ground that the judge failed to give the requisite good character direction in relation to the credibility of her interview.(ii) Her renewed application for leave to appeal against conviction on the ground that the judge wrongly allowed the prosecution to admit evidence of the telephone call referred to in paragraph 13 below.(iii) Drakou’s renewed application for leave to appeal against conviction, after refusal by the single judge, on the ground that the judge wrongly allowed the prosecution to adduce evidence of his bad character.(iv) Eldow’s appeal against conviction, with leave of the single judge, on the ground that the judge wrongly refused to allow the jury to consider the defence of duress of circumstances.[5]Having heard submission on behalf of Patel, Drakou and Eldow, we stated that the appeals would be dismissed and the renewed applications refused. We said that we should give our reasons subsequently, and we proceeded to hear the following appeals and applications on sentence:(i) Shilpa Patel’s appeal.(ii) Drakou’s renewed application for leave to appeal.(iii) Levy’s renewed application for leave to appeal.(iv) Eldow’s appeal.[6]Having heard the submissions on their behalf, we made the following decisions:(i) Shilpa Patel’s appeal was allowed, to the extent that the sentences imposed on her were ordered to run concurrently, so that the total term of imprisonment in her case was reduced to 7 years less 71 days on remand.(ii) We granted Drakou leave to appeal, and treated his application as the hearing of his appeal. We allowed his appeal, to the extent that the minimum term to be served by him under the IPP imposed by the judge was reduced to 5 years, less 25 days on remand, i.e. the equivalent of a determinate sentence of 10 years less time spent.(iii) Levy’s renewed application was refused.(iv) Eldow’s appeal was dismissed.[7]We said that we would give reasons for these decisions in a written judgment to be handed down in due course. We now do so.

The facts in summary

[8]Vernege and Levy were the joint architects and planners of a series of armed robberies between December 2006 and April 2007. They teamed up in 2006 and decided to commit armed robbery as and when the opportunity arose.[9]On 12th December 2006 they committed an armed robbery of Lloyds TSB Bank, Hilldene (counts 3-4). Between 9.30am and 9.45am Vernege and Levy attacked the guard responsible for transferring cash to and from the bank. They were both armed with guns. Levy forced his gun into the guard’s neck. Vernege pointed his gun into the guard’s chin in order to get him to open the cash box. When he resisted he told Levy to kill him. Vernege then hit the guard’s helmet with such force that the gun shattered and fell apart. Levy pointed his gun at a customer before discharging it towards the top of the security screen. The guard opened the cash box and they made off with £25,000.[10]On 7th February 2007 they committed an armed robbery of NatWest Bank, South Woodford (Counts 5-6). Vernege and Levy again attacked the guard responsible for transferring cash. When the cash box could not be opened Levy pointed his gun at the guard before removing the cash box containing £25,000.[11]Counts 7-8 charged a conspiracy between 31st December 2006 and 25th April 2007 to commit armed robbery at HSBC Bank, Loughton. Shilpa Patel was an employee at this bank. She had been friends with Vernege for 6-7 years. At 10.15am on 24th April 2007 Vernege and Levy entered the staff section by keying in the security code which had been supplied to them by Shilpa Patel. Shilpa Patel was serving a customer at the time. Vernege and Levy threatened the four staff, including Shilpa Patel, with their guns. They forced a cashier, Lesley Holmes, to input the security code for the safe. A second code was required which was inputted by Shilpa Patel’s line manager, Sheila Smith. Vernege and Levy made off with £200,000.[12]Shilpa Patel was initially treated as a witness. In her witness statement she stated that she had only briefly glanced at “the black male” (Vernege). She could not describe the robbers in detail but believed that the black male had a moustache. She did not believe that she knew either of them and could not recall the black male at all. She had not given her entry code to anyone.[13]Counts 9-10 charged a second conspiracy between Vernege, Levy and Shilpa Patel to commit a second armed robbery at the HSBC Bank, Loughton. At about 8.30am on 11th October 2007 Smith, Shilpa Patel’s line manager the bank, parked her car nearby. At 9.58am a phone call was made to her mobile from Shilpa Patel’s home telephone number. At 12.31pm there was a further call to Jo Prosser, the bank manager, at the bank. Shilpa Patel was not working on this date. At about 2-2.30pm Smith went to the car park and found the bumper and fog lights of her car had been damaged. There was a note underneath the windscreen wiper apologising for the damage and asking her to call a number between 6pm and 7.30pm.[14]On 12th October Vernege and co-accused Taplin (who was acquitted) allegedly had a meeting in the Roding public house to discuss financing the conspiracy. Taplin’s mobile phone was subsequently found by police to contain Smith’s name and home telephone numbers. On 31st October Levy had gone to an address looking for Sheila Smith. The address was for a different Sheila Smith than Shilpa Patel’s line manager. Subsequent to Vernege’s arrest on 22nd November 2007 his Satellite Navigation system was interrogated. An address pertaining to the incorrect Sheila Smith was found on it. In the end, the robbery was never carried out.[15]Counts 11 and 12 charged conspiracies between Vernege, Levy, Nitin Patel, Trusha Patel and Drakou to commit armed robbery at Debenhams, Romford. Trusha Patel was a security officer at Debenhams. She was related to and very close to Nitin Patel. On 1st November Nitin Patel introduced her to Vernege. Between that date and 19th November there were 3 or 4 meetings between Vernege and Trusha Patel. She provided Vernege with sketches of the layout of the store, information about opening times and blank visitor’s stickers. Communications between Vernege and Nitin Patel were also ongoing. Between 8th and 20th November there were several phone calls and meetings between Vernege, Levy and Drakou. On 20th November Vernege, Levy and Drakou met up at 2.30pm in a Matalan car park in Romford. All three allegedly met up again later on in the evening in Romford. Between 8.30pm and 8.43pm Levy’s mobile’s SIM card was transferred to Drakou’s mobile telephone. On 21st November, the day of the robbery, the three of them were together for most of the day. Levy and Vernege then met up again three hours before the robbery at 8.20pm at some gasworks (the “gasworks meeting”). Surveillance officers gave evidence that they saw a third man who came from the direction of Levy’s car and went into a nearby public house. This was Drakou who was also present at this meeting. Two telephone calls were made from Drakou’s phone to Vernege at 8.06pm and 8.11pm. For reasons unknown Levy and Drakou withdrew from the agreement at the last minute. At 11.30pm Vernege gained access into the store as an official visitor. Trusha Patel then led him to the cash room. Staff members were tied up at gun point and made to lie on the floor. Vernege hit one of them. There was about $48,000 cash on the table which was put into holdalls. Vernege and Trusha Patel were unable to access the safes. They then left with the holdalls and were arrested by police who had been observing Vernege.[16]Counts 13 and 14 charged possessing a prohibited weapon/possessing ammunition without a firearm certificate on 22nd November 2007. At 12.24am on 22nd November police attended Levy’s flat. He was arrested. Drakou was also there as he had been staying at Levy’s flat for a few days. He was also arrested. Eldow was a neighbour. Just before the police arrived Levy knocked on Eldow’s door and asked him to look after a bag. Eldow agreed and took it. Eldow subsequently told the police that Levy had put a bag inside an electric cupboard in his home. The police searched Eldow’s flat and found a grey bag containing the gun and ammunition from the Hilldene robbery inside the electric cupboard. Eldow was also arrested.[17]On the same date Shilpa Patel was also arrested. She made no reply to caution. In her first interview she admitted that Vernege had been a friend for 6 to 7 years. She denied all of the allegations. In her second interview she answered no comment to all questions.[18]Drakou answered no comment to all questions when interviewed.[19]Eldow was interviewed and explained that Levy had given him the package. He had not looked inside and had hidden it in the cupboard. He had lied to the police when he said that Levy was the one who put it into the cupboard.

The prosecution case in relation to Shilpa Patel, Drakou and Eldow

[20]Shilpa Patel was part of the conspiracy to commit the first robbery of HSBC Bank, Loughton. She provided the security code to Levy and Vernege. She would have been able to recognise Vernege, who was a long-standing friend of her and her husband, if not by his physical appearance, by his voice. She would have been able to give a fuller description than she did. The inside person could not have been Smith, Prosser or Holmes because they all had the code to the safe, which Vernege did not know. Vernege would not have dared to rob a bank where an innocent friend worked because of the risk, if not certainty, that the friend would have recognised him and would have reported him to the police.[21]After the success of the first robbery at Loughton, Shilpa Patel entered into a further conspiracy to rob the same bank. Having already used her as an insider once before it was necessary to find another insider who had the security code for the safe and strong room. On 11th October Smith was unsuccessfully targeted for this purpose with Shilpa Patel’s phone call and the damage to her car. It was Shilpa Patel who had made the telephone call with the purpose of ascertaining whether Smith was at work and whether her car was parked in the car park. There was no need for her to contact Smith on a day when she was not working. She also made the subsequent call to Jo Prosser at the bank.[22]Drakou was part of the conspiracy between 1st October and 23rd November 2007 31st December 2006 and 25th April 2007 to commit armed robbery at Debenhams, Romford (Counts 11-12). His involvement in this conspiracy was evidenced by the telephone calls and meetings with Vernege and Levy. The aim of the meetings was to plan and co-ordinate the robbery and to reconnoitre the premises.[23]Drakou’s defence that the meetings were about his buying Vernege’s van was implausible. He was present at both the meeting in Romford on the evening of 20th November and also the gasworks meeting on the evening of the robbery. This was supported by the telephone evidence and the surveillance evidence. This was a “last minute” meeting before the robbery. His previous convictions for armed robbery demonstrated a propensity to commit robbery.[24]The prosecution case against Eldow was that he did not know what was inside the package containing the gun but he nevertheless had physical custody it.

Shilpa Patel

[25]Inher first interview Shilpa Patel initially stated that she did not know Vernege. Nitin Patel was her husband’s brother but they had not spoken to him for about 4 years. They did not have any contact with him. She then stated that Vernege was her husband’s friend. They had known him for about 6-7 years. She did not know his surname. He had been to their house quite a few times for parties and dinner. Her husband would be the one to telephone him or Vernege would telephone their house asking for her husband. She had definitely not called him. She did not know anything about him and had not known that he was a robber. Vernege knew where she worked. When the robbery happened she did not even see Vernege in the bank or hear his voice. She only knew that there was a black male from other people’s accounts. She had not given the security code to anybody. She would not have done that for the sake of her children. She had not even told her husband what it was. She was not under duress by anybody. She had not told her husband the telephone number of the bank.[26]Shilpa Patel was of good character. She did not give evidence. It is conceded by the prosecution that she was entitled to the benefit of both limbs of the good character direction, although the credibility limb would have been restricted to what she had said in interview. The judge directed the jury to give her the benefit of the first limb, that relating to propensity, but failed to do direct the jury that her good character should be taken into account in assessing the credibility of her statements in interview. We suspect that the judge drafted his directions when he expected Shilpa Patel to give evidence, since his written draft states that she had done so, and that through inadvertence he failed fully to adapt his directions to the jury when she did not do so.[27]The question for this Court is whether the failure to give the credibility direction renders her conviction unsafe. To put it otherwise, are we satisfied that if the direction had been given, she would inevitably have been convicted?[28]It is significant that neither of her counsel noticed the defect; nor did either of the counsel for the prosecution. No application was therefore made to the judge to repair his omission, even when the good character direction was subsequently discussed with the judge (at page 56 of volume IVb of the transcript). In what was a long and careful summing-up, we suspect that the omission would not have been appreciated by the jury. In any event, however, the judge stressed the importance of her interview, and went through it at length. At page 24 of volume IVc he said:
“Now that bit (of her interview) was played to you and you heard Shilpa giving evidence (sic) and you heard what Mr Magarian said about her tone of evidence and you take that into account.”
It is clear that the judge was referring to Mr Magarian’s submission to the jury that the manner in which she answered questions in the interview was indicative of a woman of good character telling the truth. The judge also reminded the jury of the witness statement she had made to the police prior to her arrest. The jury were well aware of the importance of her exculpatory account.[29]The case against Shilpa Patel was a strong one. Not the least pointer to her guilt as the insider in the bank was the improbability of Vernege robbing a bank in which a long-standing acquaintance worked, as he must have known, with the inherent risk of her recognising him. It is no answer to this point that when the robbery at Loughton was carried out, she may have been in a position in which she could not see him, or that his face was covered, or that she did not clearly hear him, or that he was shouting rather than talking. He could not know in advance where she would be working, what might happen, and what he might say. He simply would not have taken the risk of recognition. Secondly, she was one of the limited number of employees who had the external door combination but neither of the safe combinations. The jury were entitled to reject the possibility of her having innocently allowed Vernege to obtain the PIN number of the external lock: she said in interview that she had not even told her husband what it was, and she did not suggest that she had made the elementary mistake of writing it down, let alone writing it down with an indication of its significance and leaving the note in a visible place. The telephone call to Sheila Smith, on 11 October, on the very same day that Smith’s car was damaged in circumstances indicating that the damage was deliberate, added to the evidence against her. Given the case against her, her failure to testify would inevitably have weighed with the jury.[30]Mr Magarian submitted that the omission of the credibility direction was exacerbated by a lack of balance in the summing up so far as his client was concerned. We do not accept this criticism. When addressing the possible inference to be drawn from Shilpa Patel’s failure to give evidence, the judge said that an adverse inference could be drawn only if the jury were satisfied “that the prosecution case is so strong that it clearly calls for an answer by her, and second, that the only sensible explanation for her silence is that she has no answer or none that would bear examination. So it is a stiff test for you to take that into account against her.” (Our italics). He continued:
“Mr Magarian, on behalf of Shilpa Patel, stressed that last point. He says that the prosecution case against Shilpa is so manifestly weak that it does not call for an answer, therefore she did not have to go into the witness box, therefore her failure to do so should not count against her. Now, if you think that is right, it is self evidently fair, is it not, that you should not take it into account. You have got to judge the strength of the prosecution’s case against Shilpa before you even consider drawing an adverse conclusion from her failure to give evidence. I hope that is clear.”
[31]It is true that the judge commented adversely on her failure immediately to disclose that she knew Mark Vernege, but that comment was fair in the circumstances. The judge dealt fairly and fully with the point made on behalf of Shilpa Patel that Vernege appeared to be ignorant of the need for two codes to open the safe, a fact of which she was well aware and that one would have expected her to tell him if she was the insider.[32]Having reviewed the summing up, we have no doubt that the judge’s omission of the credibility direction was inconsequential.[33]In our judgment, the telephone call on 11 October was rightly admitted in evidence. The fact of the telephone call was not inherently prejudicial. A telephone call is not indicative of guilt, unless its content or surrounding circumstances give rise to an inference of criminality. In this case, in particular if the jury were sure that Shilpa Patel had played a part in the robbery of her bank, the circumstances pointed to a criminal purpose. If the telephone call had an innocent purpose, Shilpa Patel could have given it in evidence. She chose not to do so. In the absence of her explanation in evidence, the jury wee entitled to draw the inference that they clearly did.[34]Mr Magarian did not pursue orally any other grounds on which leave to appeal was sought but for which leave had been refused on paper by the single judge. In our judgment he was right not to do so.[35]We have no doubt as to the safety of Shilpa Patel’s conviction.[36]As to her sentence, a deterrent sentence was called for. An insider such as Shilpa Patel plays an essential part in robberies such as that of the bank in which she worked. Her offending was a serious breach of trust. The robbery itself, with firearms deployed and a threat to use one, was extremely serious. Quite apart from the financial loss, the effect on her innocent colleagues at work, whose lives were endangered, would have been grave in itself. The fact that a repetition was planned is a very considerable aggravating factor. However, her offences were not as serious as those of Nitin Patel and Trusha Patel, who were party to the conspiracies to commit armed robbery at Debenhams, Romford (Counts 11-12). Trusha Patel was the insider needed for that robbery. She played an active role in it. Furthermore, while Shilpa Patel was a woman of good character, whose only role in the first robbery was to provide the external door code, Nitin Patel had a previous conviction for armed robbery, yet received the same sentence. Lastly, we took into account that Shilpa Patel’s situation as a mother of young children means that her custodial sentence will bear more hardly on her, quite apart from its effect on her children.[37]For these reasons, we considered that the sentence passed on Shilpa Patel was excessive. It was reduced to what remains a substantial sentence, namely 7 years’ imprisonment less time served.

Drakou

[38]On conviction, the contention on behalf of Drakou is that the prosecution case against him was so weak that his bad character should not have gone before the jury: his previous convictions were used to bolster a weak case, and were bound to have been unduly prejudicial, leading to a risk that he was convicted by reason of his previous convictions rather than by reason of the evidence against him on the counts in the indictment.[39]It was accepted by Mr Wood, on behalf of Drakou, that in order to succeed on this issue he would have to show that the judge could not reasonably have assessed the case against him as other than weak. The judge considered the case against Drakou to be strong, and we agree. The surveillance evidence, including evidence of him at the service ramp behind Debenhams, pointed ineluctably to his having taken part in reconnoitring the store. The telephone evidence of his contact with, and the evidence, of his meetings with Levy and Vernege supported the case that he was party to their conspiracy to rob the store. In his case, the evidence of his previous convictions was particularly pertinent: he had convictions for armed robbery, and he and Levy had committed armed robbery of a Securicor van in 1994. He was on licence at the time of the index offences, and it was a condition of his licence that he should not have contact with him. Quite apart from propensity, his convictions were relevant to his case that his contacts with Levy were innocent. The duration of the sentences imposed on him was relevant as indicating the seriousness of his previous offences, and the date of his release from custody relevant because it showed that there had not been any significant period immediately before the planned robbery during which he had refrained from offending.[40]It follows that the judge’s decision to admit the evidence of Drakou’s previous convictions cannot be impugned.[41]On sentence, Mr Wood accepted that imprisonment for public protection was justified. He submitted that the minimum term imposed was excessive, having regard to the following:(i) Drakou had been involved for only 6 days;(ii) the conspiracy had been formed before he became involved and his part in it had not been important;(iii) the prosecution accepted that he had withdrawn from the conspiracy of his own volition before the robbery of Debenhams was carried out.(iv) He had been given the same sentence as Vernege. Vernege had pleaded guilty, and was entitled to the discount for his plea, but he had committed 6 robberies and used firearms. Drakou’s sentence did not adequately reflect the difference between the gravity of their respective offending.[42]We consider that there is substance in these points, particularly his withdrawal from the conspiracy before it was put into effect. We therefore granted leave to appeal; we treated the hearing as the hearing of the appeal; and we allowed the appeal to the extent of reducing the minimum term of Drakou’s IPP to 5 years less time spent.

Levy

[43]On behalf of Levy, it was submitted that his offending was less serious than that of Vernege, and that he should have received a shorter minimum term to reflect that difference.[44]Levy had previous convictions for armed robbery. He had discharged a firearm in the course of one of the robberies that was the subject of the trial. These robberies were near the highest end of the scale: only if injury or death had been caused in the course of these offences, of if the sums involved had been considerably greater, would they have been more serious. We do not accept that, leaving aside the discount for a plea, Levy’s offending merited a lesser sentence than that of Vernege. The judge, who heard the trial, was in the best position to determine their relative culpability. We see no basis for impugning Levy’s sentence as excessive, either viewed separately or in comparison with that of Vernege. Accordingly, his renewed application was refused.

Eldow

[45]On conviction, it was submitted that the judge should have left to the jury the defence of duress of circumstances.[46]Eldow did not suggest that Levy had threatened him. He did not give a consistent account of his reasons for accepting and hiding the package containing a gun that Levy had given him. He referred to Levy’s reputation for violence, but did not suggest that his will had been overborne. He did say that if Levy was upset he, Eldow, would be in trouble, and said he felt in real danger of being shot. However, the thrust of his evidence was that he had heard knocks on the door in the early hours of the morning; when he opened it Levy had thrust the bag into his hands and asked him to take it because the police were after him; he had done so, and hidden it, thinking it was skunk, which Levy had promised to give him in the morning. Eldow did not mention duress or fear when interviewed, and in cross-examination said he was not forced to take the bag.[47]Duress, and in particular duress of circumstance, is a defence that is applicable in very limited circumstances, and it must be kept in narrow bounds. It was clear on his evidence that Eldow was proffered the bag by his neighbour Levy, with whom he was on good terms, and simply accepted it. There was no suggestion that Eldow was in any imminent danger that could have prevented him from informing the police that he had been given a package containing something clearly, from what Levy said, illicit. Instead, he had hidden the bag: again, something that he was not forced to do. Imminent danger that prevents a person from acting lawfully is a necessary ingredient of the defence.

The judge was right not to allow this defence to go before the jury.

[49]On sentence, it was submitted in the grounds of appeal that the judge should have taken into account the immigration status of Eldow and the fact that a sentence of the duration imposed would expose him to liability to be deported. We reject this submission. It would be quite wrong for the court to reduce a sentence so as to avoid liability for deportation. Liability to be deported is irrelevant to sentencing. If an offender has a genuine and well-founded fear of persecution or of breach of his Convention rights if he is deported after completion of his sentence, or can show that deportation will infringe his Convention rights, he will be able to resist deportation, either by convincing the Home Secretary of his case or on appeal to the Asylum and Immigration Tribunal.[50]The judge found that there were exceptional circumstances justifying a reduction in Eldow’s sentence of imprisonment from the otherwise mandatory 5 years. The judge took into account the circumstances in which Eldow accepted the bag, that he may have thought it contained drugs rather than a gun and the brevity of his possession. The concealment of a gun is a serious offence; Eldow knew that Levy was a serious criminal and, on his own account, knew that Levy used a gun. In our judgment, the sentence passed by the judge adequately reflected Eldow’s mitigation. Accordingly, his appeal against sentence was dismissed.