Foulger R. v [2012] EWCA Crim 1516

[2012] EWCA Crim 1516Case No 2011/6714/D4,2011/6719/D4 & 2011/6717/D4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday, 2 July 2012
Strand
London, WC2(A 2LL
B e f o r e:
LORD JUSTICE MOSES
MR JUSTICE ROYCE
MR JUSTICE SINGH
R E G I N A
v
ROBERT FOULGER
KEVIN BURGESS
ANDREW BADLAND
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Miss V Meads appeared on behalf of Foulger
Mr A Baughan appeared on behalf of Burgess
Mr C Gillespie appeared on behalf of Badland
J U D G M E N T
[1]MR JUSTICE ROYCE: On 3rd November 2011 in the Crown Court at Southampton, before His Honour Judge Burrell QC, the applicants were convicted of conspiracy to steal. Foulger and Burgess were sentenced to five years' imprisonment and Badland was sentenced to seven years' imprisonment. Foulger renews his application for leave to appeal against conviction and Burgess and Badland renew their applications for leave to appeal against sentence. On the morning of 7th June 2010, a container load of cigarettes with a black market value of between £750,000 and £900,000 on which over £1 million worth of duty was payable was stolen from a bonded warehouse called Macintyre Scott in Southampton. The cigarettes were destined for Gibraltar and thereafter North Africa. Once the cigarettes arrived in Southampton Macintyre Scott began to make arrangements for their export. Trident Freight was tasked with organising the collection of the load. They offered the job to Best Transport who subcontracted the job to Bluefin Transport. The contact at Bluefin was the applicant Foulger. He and the applicant Badland were old friends.[2]The prosecution case was that by the afternoon of 3rd June Foulger must have obtained the transaction codes which were needed to secure the release of the load and begun the process of disseminating the information to his co-conspirators. He arranged for a legitimate collection lorry to arrive after the load had been stolen. Arrangements were made for a bogus lorry to arrive at the yard in the early hours of 7th June and to transport the cigarettes away. There were other co-accused who were acquitted and it is unnecessary to deal with the parts that they played.[3]The load was taken to the Epping area and was not seen again after that. In fact neither the lorry nor the cigarettes were ever recovered.[4]The bulk of the evidence came from the analysis of telephone data including cell site analysis and ANPR sightings. The prosecution case was that this was a well-planned high value professional theft. Foulger was the inside man. Badland was the organiser. Burgess was responsible for recruiting another man to drive. A further man supplied the lorry and two others were involved in the disposal of the lorry and the cigarettes.[5]It was Foulger's case that he had no knowledge of the conspiracy. The only knowledge that he had of the load was in the course of his employment. The case for Badland and Burgess was essentially that of innocent association.[6]On behalf of Mr Foulger, a number of different grounds are advanced. The first is that the judge should have acceded to a defence application to exclude the evidence of a witness called Julie Sargent as it is contended it was inadmissible or alternatively under section 78 of Police and Criminal Evidence Act. Julie Sargent was a civilian data analyst employed by the Hampshire police. What she had done was to produce charts and maps and a summary collating cell site data in respect of various phones. Her charts, maps and summaries enabled this material to be put before the jury in a readily understandable form.[7]The prosecution did not put her forward as an expert or seek to elicit any expert opinion from her. Miss Meads on behalf of the applicant contends that the effect of her evidence was that expected to come from an expert. However, in reality when one looks at material she was putting before the jury, it is very difficult to maintain the contention that she was being called as an expert. In his ruling at 3C

the judge said this:

"In my judgment, the evidence of Julie Sargent is plainly not expert opinion evidence in the sense contended for by the defence. She is an intelligence analyst, a job which no doubt has a certain expertise and skill itself as an occupation, but she is not for example, an expert communications data investigator. Her task has simply been to put the otherwise complicated, or relatively complicated, telephone data into a more user-friendly format. ... She does not purport to express an opinion of any of this data; she has simply produced by way of example a PowerPoint presentation and other graphic illustrations of the information which has already been sourced as the raw telephone data."
He went on to point out that if the defence wished they could, if they suggested the material was lacking sufficient detail or misleading, call their own expert but he was told they did not intend to do so. We conclude the judge's ruling was entirely appropriate in these circumstances.[8]The second ground is that the judge intervened during the cross-examination one of the Crown's witnesses to warn the defence that if the questioning went further it could amount to an attack on the witness's company and thus could amount to an attack on character. Miss Meads contends that by reason of that interjection the jury would have concluded that the applicant was someone with a criminal record.[9]It appeared to us that the judge was intervening at that stage by way of a gentle warning to the defence that if they went too far it might indeed amount to an attack on character. We do not accept that this precautionary intervention, of which we have seen no transcript, made it obvious that the applicant was someone with an antecedent history.[10]Ground 3 concerns the presence in the jury of a police community support officer who worked from the Bitterne police station where it so happened two defendants happened to have been interviewed. The judge established that the juror had no knowledge of the investigation and knew no one connected to it either directly or directly. Two of the defendants had been interviewed at Bitterne police station as a matter of convenience as it was a quiet station. The investigating officers were not based there and the juror did not know them. This was not a case where in reality the police evidence was in dispute in so far as its credibility was concerned.[11]The judge reminded himself of the authorities of Khan [2008] EWCA Crim. 531 and Adroykoff, Green and Williamson [2008] 1 Cr.App.R 21. More recently, in Khan v United Kingdom [2012] ELR 295, the European Court considered the case of Khan and concluded that where there was a police officer who had personal knowledge of one of the police officers giving evidence in the case, and police evidence was in dispute, the juror should have been discharged from that case. That case is not this case. We consider that the enquiries made by the judge were appropriate to establish that the police support officer was properly impartial and we do not accept that he was wrong in failing to discharge that juror or indeed the whole of the jury.[12]Grounds 4 and 5 concern the allegation that the summing-up was biased in favour of the prosecution and that during the applicant's evidence the judge had by his demeanour and what he said demonstrated bias against the applicant.[13]In refusing leave on these grounds, the single

judge said this:

"There is no basis for the allegation that the summing-up of your case was not fairly balanced and that it sought to undermine your case. The judge told the jury to 'embrace a fair and careful and reasoned approach to the evidence'. [He] reminded the jury of the cross-examination by your counsel of prosecution witnesses. [He] reminded the jury of your evidence. You do not suggest that he failed to remind the jury of any material matters. I do not accept that the summing-up was unbalanced as you suggest. As for the complaint about the judge's words and general demeanour during the course of your evidence, you accept that further to the issue being raised on your behalf the judge directed the jury that if by words or body language he gave an impression of his view it should be ignored. There is no reason to think that the jury had disregarded this direction."
We agree. The fact is that the summing-up reflected what was a very strong prosecution case. We do not consider that it was unbalanced or biased and these grounds looked at singly or collectively are not sufficient to cause us to give leave or to allow any appeal against conviction. This conviction was safe. This renewed application must be refused.[14]We turn to the renewed applications on behalf of Badland and Burgess. Badland is aged 31. He has a 11 previous court appearances for 33 offences between 1998 and 2009. Of significance in his case are convictions for conspiracy and theft in 2001 when he was given 21 months in a young offender institution. That involved him and others using a lorry cab and removing a fully loaded trailer with goods to the value of about £30,000 from an industrial estate. In 2004 he received a three year sentence for theft. He and others had stolen a lorry from Felixstowe Docks. They were pursued by the police. The lorry had a load worth £84,000. In 2009 he received a sentence of 18 months for handling. That involved a container holding 8 million cigarettes of considerable value. Before us, it has been made clear that there was a basis of plea in that case and that basis of plea was that he did not know there were cigarettes in the lorry. He believed the load to consist of noodles.[15]So far as Burgess is concerned, he is aged 52. He had a previous court appearance in 2002 which arose from an offence committed with Badland when they stole the fully loaded lorry from the industrial estate. He received a sentence of 15 months and three months concurrent for a separate forgery offence. It is clear that his previous record is substantially less serious than that of Badland.[16]In sentencing them, the judge said he took account of the Sentencing Guideline Council guidelines for theft. He pointed to the following aggravating factors: 1. The planning of the offence. 2. The deliberate targeting of the bonded warehouse load and the bonded warehouse itself. 3. The high level of gain and high value of property. 4. The impact on the company Macintyre Scott and its Managing Director and in the case of Foulger the breach of trust. In the case of Badland he said he was clearly the ringleader, the linchpin, the organiser and the fixer. He stood to make a lot of money. Neither the cigarettes nor the lorry trailer were recovered. He was an experienced and professional criminal who had done this sort of thing before. He said there was in reality no mitigation and concluded that seven years, the maximum sentence, was the correct one.[17]In relation to Burgess, he said he was Badland's right-hand man and close associate who was there to make sure everything went to plan. He was heavily involved in the organisation. His previous conviction was with Badland. He also took into account the fact that he had significant family responsibilities and that he was likely to have been under the influence of Badland.[18]On behalf of Mr Badland, Mr Gillespie accepts that this offence fell in the top level of the Sentencing Guideline Council guidelines, which has a starting point of three years and a bracket of two to six years for a man of good character after trial where the value of goods stolen is £125,000 or more. Mr Gillespie drew the court's attention to Bright [2008] 2 Cr.App.R (S) 102 where the Lord Chief Justice indicated that maximum sentences should not necessarily be reserved for cases where it was possible to conceive of worse cases. Maximum sentences should be reserved for cases of the utmost gravity. Mr Gillespie maintains that this was not such a case. He does point to the possibility of conceiving of cases of greater value, with vulnerable victims over a longer period of time and with a greater impact, and so it is possible to conceive of more serious cases. However, here the judge was dealing with a professional criminal who took little or no notice of previous sentences for similar offences. He appears determined to carry on with these offences no matter what the courts may do. It would be wrong for defendants who continue to commit this sort of serious offence to think that they will not receive the maximum sentence simply because it is possible to envisage cases with more serious facts. In his case the renewed application is refused. In relation to Mr Burgess, Mr Baughan submits that the judge failed to take sufficient account of his limited, albeit important role, his comparative lack of previous convictions compared with Badland and all other relevant matters. He points to his age of 53, the fact that he has partial responsibility for a nine year old daughter, his lack of a lavish lifestyle and the fact that he has been in paid work for 10 years and that he was not the ringleader. In our judgment, there is some force in his submissions. We conclude, looking at the totality of the material before us, that the proper sentence in his case is one of four years and six months. We allow his application. We give him leave and the sentence is reduced to four-and-a-half years. To that extent his appeal succeeds.[19]MR BAUGHAN: In the case of Burgess, as a result of that, may I ask for a representation order up to this point and to include today?

LORD JUSTICE MOSES: Yes.