Baybasin & Ors, R v [2013] EWCA Crim 2357

Case Nos: 2011/04304/C4,2012/01815/C4, 2011/06502/C4, 2011/06490/C4,2011/06411/C4, 2011/04305/C4, 2011/04306/C4[2013] EWCA Crim 2357
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Date 13/12/2013
ON APPEAL FROM THE CROWN COURT AT LIVERPOOL
QUEEN ELIZABETH II LAW COURTS
LIVERPOOL
Before
LORD CHIEF JUSTICE OF ENGLAND AND WALESMRS JUSTICE COXMR JUSTICE HOLROYDE
Between
RRespondentMehmet Sirin BaybasinAppellantsNeil William Bogle and othersApplicants
N Wrack for appellants Baybasin and Molloy; Colin Wells for the appellant McMullenK Sutton and M Reid for CrownThe applicants Bogle and Oyuncu were represented by B Carville, Fairbrother by P Lewisand Smith by F Fitzgibbon QCHearing Hearing dates : 13 and 14 November 2013
JudgmentThe Lord Chief Justice of England and Wales :
[1]The applications for leave to appeal before us relate principally to large scale conspiracies to import cocaine and other class A drugs. The applications were heard by this court sitting in Liverpool.[2]The Crown’s case against all those involved was that they were involved in the importation and supply of cocaine and other class A drugs. However for convenience their involvement had been divided up into six separate indictments. In April and May 2011, prior to the trial of Baybasin, McMullen and Molloy, the applicants Azis, Smith, Oyuncu and Geraghty pleaded guilty to counts on the indictments. On 15 May 2011 the applicant Fairbrother pleaded guilty.[3]The trial of Baybasin, McMullen and Molloy at the Crown Court of Liverpool before His Honour Judge David Aubrey QC and a jury began on 18 May 2011. On 8 July 2011 each was convicted of conspiracy to import cocaine; Baybasin was also convicted of concealing criminal property[4]We will consider first the applications for leave to appeal against conviction. THE APPEAL AGAINST CONVICTION Introduction

THE APPEAL AGAINST CONVICTION

[5]The applications of Baybasin, McMullen and Molloy for leave to appeal against conviction were based on two principal grounds: i) The general practice in the Crown Court at Liverpool of balloting jurors by number in cases of over two weeks in length was said to be unlawful. There was no basis for the judge to have balloted by number, as the prosecution had specifically abandoned their application for that to be done. The judge had also failed to give proper directions to the jury in relation to arrangements relating to their transportation to the court and to their separation from other jurors during the course of the trial. ii) On the basis of fresh evidence obtained through an inquiry by the Criminal Cases Review Commission, it was contended that a member or members of the jury had found on the internet and in a book material relating to the members of the Baybasin family who had been engaged in drug dealing. The judge had specifically excluded evidence relating to the activities of Baybasin’s family.[6]The two grounds gave rise to more general issues relating to the adoption of local practices and inquiries into alleged misconduct by jurors. We grant leave on the first ground only.

The factual background

[7]In the light of the very limited nature of the appeal against conviction, it is only necessary to set out the facts in very brief outline: i) The prosecution alleged that there was a well planned conspiracy between(1) a group of criminals in London headed by Baybasin,(2) a group of criminals based in Liverpool headed by Taylor and(3) other drug dealers based overseas. ii) On 16 July 2008 Baybasin travelled to Liverpool with the applicant Azis and another. They went to Taylor’s house. A bag was taken by Taylor from the van belonging to the applicant Fairbrother (part of the Liverpool group of drug dealers). Baybasin travelled back to London alone. Aziz and another travelled back in a separate car. That car was stopped; £126,000 was found in it. Part of that sum was in a bag that matched the description of the bag taken by Taylor from Fairbrother’s van. It was Baybasin’s case that he had nothing to do with the money; he had not handled it and his fingerprints were not found upon it. He had travelled to Liverpool to try and secure an Irish passport. These matters formed the basis of the count of concealing criminal property said to be the proceeds of drug trafficking (count 3 of indictment 1). iii) The prosecution alleged that between September 2008 and April 2009 there was a sophisticated and large scale conspiracy to import cocaine from Central America to the UK. It was alleged that Baybasin and members of his group had several meetings with Taylor in relation to this importation. It was alleged that Baybasin also had travelled extensively and had meetings with Ricardo Ocampo, a Columbian, and Javier Oponte, a Venezuelan. It was the prosecution’s case that Baybasin provided the link to Ocampo who was, in turn, the link to drugs supplies in Central America. It was Baybasin’s case that he was on legitimate business and had no involvement with the conspiracy. These matters formed the basis of count 4 of indictment 1. iv) The prosecution case against McMullen was that he was a member of the Liverpool team providing expertise in transportation. It was alleged he travelled to Central America. It was McMullen’s case that he was not involved in the conspiracy and had not been to South America. He had other businesses interests that did not involve drugs. His links with Taylor were explicable. v) The case against Molloy was that he was a person who delivered the drugs; Molloy’s case was that when he had delivered articles he was not delivering drugs.[8]The evidence adduced by the prosecution comprised surveillance evidence and evidence of recorded conversations obtained from probes installed in buildings.[9]It is not necessary to set out any more of the evidence; we can turn immediately to the first issue.

(a) The general practice as to ballot by number: R v Comerford

[10]The usual procedure for empanelling a jury is to ballot from those assembled by calling out the names of the jurors in open court in the presence of the defendant. As each person’s name is called, that person steps into the jury box and is sworn. In this way everyone in court knows the names of the jurors who are to try the defendant.[11]In R v Comerford [1998] 1 Cr App R 235, this court (Lord Bingham CJ, Potts and Butterfield JJ) considered an appeal from a trial in the Crown Court at Middlesex Guildhall where jury nobbling was anticipated. The assembled jurors were each allocated a number before being brought into court. Instead of their names being called out in the ballot, their number was called for the ballot. No juror was identified in court by name. This court held that this procedure was lawful as it had no material and adverse effect on the fairness of the trial for reasons we set out at paragraphs 26-29 below. At the conclusion of the judgment Lord Bingham giving the judgment of the court made clear: “It is highly desirable that in normal circumstances the usual procedure for empanelling a jury should be followed. But if, to thwart the nefarious designs of those suspected of seeking to nobble a jury, it is reasonably thought to be desirable to withhold juror's names, we can see no objection to that course provided the defendant's right of challenge is preserved.” (b). Prosecution application for balloting by number and its withdrawal[12]On 17 May 2011, immediately before the trial was due to begin, the judge raised with counsel the empanelling of the jury. The prosecution then invited the judge to proceed to ballot by number. The judge asked the prosecution if they would indicate why it was that the prosecution suggested that it was in the interests of justice that the jury be balloted by number; he said that the defence would then be entitled to make representations.[13]The prosecution then put before the court information which they contended justified that process. Mr Wrack who was then representing only Baybasin asked for a good deal more information. Counsel for the prosecution observed that the request for further details was a fair one but

the judge then observed:

“there are many, many cases up and down the country where, in fact, jurors are balloted by number especially in long cases, especially where there are a number in the jury panel. We have moved beyond Comerford to the Criminal Procedure Rules…”
[14]When Mr Wrack observed that it was fundamental that balloting should be by name unless there were exceptional reasons,

the judge said that he disagreed and added:

“Let us live in the twenty first century. In fact, I am aware that in this building it may be that a similar application is being made in another long trial that is about to commence. So may be as far as this buildings is concerned if I were to grant this application, it would actually be the norm as opposed to an exceptional circumstance. As I say each case is fact specific, but it depends upon what is said to a jury”
[15]The judge said he could not rule on the matter until further information was available. On the following day, 18 May 2011, the prosecution decided that they would not pursue the application for balloting by number.

(c) The judge’s decision to ballot by number

[16]Mr Wrack then made a submission to the effect that, given the stance taken by the prosecution, there was no need for any jury protection of any sort in the case. The judge made clear that he was not prepared to say in open court what arrangements would be made. Submissions were made by Mr Wrack in support of his position relying on Comerford.[17]On the following day, 20 May 2011, the judge gave his ruling. “The issue has been raised whether a jury should be balloted by name, which is the customary manner, or balloted by number. Notwithstanding the Crown’s withdrawal of any application for the jury to be balloted by the latter method and having reflected upon all the matters and having taken into account the submissions previously made by counsel and all the defence counsel - and this court is not going to receive any further submissions - it is, in fact, standard practice in this building for juries in long cases to be balloted by number. This court is clearly of the view that no prejudice whatsoever is occasioned by such a jury provided, of course, that the panel is told that it is the normal practice in this building for cases of some length. “…In my judgment there is no reason whatsoever to depart from that standard practice. Furthermore, in my judgment in this specific case it is proportionate, necessary and in the interests of justice. I have been referred to the case of Comerford on many occasions…I also remind myself that that authority and judgment is of some antiquity and predates by many a year the Criminal Procedure Rules and the overriding objective ” The judge concluded that the overriding objective in dealing with a criminal case justly included not only dealing with the case efficiently and expeditiously, but by respecting the interests of jurors.[18]The court then proceeded that day to empanel the jury by balloting it by number. The judge explained the process to the assembled jurors in waiting saying in the following terms that it was standard practice in the court, as he had indicated: The position is this, that we now have a panel of 23... We are in fact going to do it by numbers but I think you have all been given a number, is that right? It is the normal way of doing this in long cases, it is the standard practice in this building in longish cases, it makes it much easier for the administration and that is the reason and the only reason we do it this way (d). The judge’s initial directions to the jury on other arrangements[19]In his general directions to the jury at the outset of the trial the judge told them that they would start at 10 o’clock and have a break for coffee. They were going to be provided with coffee and tea making facilities in their room. He told them that was normal practice in long cases to make things as comfortable as the court possibly could.[20]Later that day, though not in open court and unknown to counsel for these appellants (who did not normally practise in Liverpool), the jurors were told by the jury manager that additional arrangements would be made which was standard practice for trial with an estimate of over two weeks. Those arrangements were that the jury would be met at an agreed pick-up point by a member of the court staff and taken to the court by specially provided transportation; at the end of the day they would be taken from the court to that same location. They were also told that, when they were not in court, they would be accommodated in their jury room and would not return to the jury assembly area.

(e) The general practice at Liverpool

[21]The Crown Court at Liverpool was directed by this court’s order of 22 November 2012 to provide a statement of the practice at Liverpool as to balloting by name and whether the practice was applied to other cases. In accordance with that direction, the Deputy Court Manager of the Crown Court Liverpool provided the following information:
“The practice at Liverpool which was instigated by the judiciary is for any trial that is over two weeks length the jury will be balloted by number. Having said that it is still at the discretion of the trial judge and they will give the appropriate direction to the jury.”
[22]That statement, provided by the court manager was a succinct statement of the practice. Inquiry by this court during the hearing at Liverpool of the appeal and applications showed that the practice had originated in a Guidance Note: Trial Management in Long/Secure Cases issued on 15 January 2004 by the then Recorder of Liverpool and approved by the Presiding Judge of the Northern Circuit. The Guidance set out in a clear and careful manner the practice to be followed at Liverpool under a series of headings. We refer only to those parts relevant to the selection of a jury by ballot and other arrangements for the jury “Pre-trial case management 5. In high security trials the parties to be told at a PDH/PTR that special arrangements would be made for the jury including the fact the ballot will be by numbers and not names. The parties should not be told the nature of the arrangements except in relation to the procedure for jury selection… The Guidance set out in some detail how in such cases the jury was to be selected. It next contained a section entitled:
“Special jury arrangements during the trial”
. Amongst the arrangements were “1. At the outset of the trial, the judge should tell the jury that special arrangements have been put in place. They can be told that when the building was designed no great thought was given to the practicalities and in a long case there is the greater risk that jurors and witnesses /defendants/legal representatives may accidentally come into contact with each other and this can cause embarrassment. The jury can also be told the arrangements will help to ensure the smooth running of the trial and hopefully will be of help/assistance to the jurors themselves.” The Guidance then set out details about collection points in the city and the provision of tea and coffee making facilities in the jury room.[23]It appears that the practice as summarised by the court manager and that applied by the judge in the present case had been modified in the period after 2004 so that in all cases of more than two weeks in length, subject to the discretion of the judge, jurors were balloted by number and special arrangements about transportation and refreshment were made for them. Each jury to which this practice was applied were told that these arrangements were standard practice.[24]It is therefore clear that in the present case the procedure followed by the judge was in accordance with the general practice adopted at the Crown Court at Liverpool for all cases over two weeks in length, irrespective of whether there was any evidence of risk of jury nobbling. (f). The position in the Crown Court at locations other than Liverpool[25]At our request, the Registrar of this Court conducted an enquiry to ascertain whether the practice adopted at Liverpool extended to locations of the Crown Court in other cities: i) At the majority of other locations of the Crown Court, there had never been a case where a jury had been balloted by number. ii) At locations of the Crown Court where there had been balloting by number, such balloting had only taken place on a minuscule number of occasions and then only in exceptional circumstances where there had been an application by the prosecution. iii) Three locations, apart from Liverpool, have written guidance – Kingston, Woolwich and Southwark. At Kingston, the detailed protocol makes clear that the decision to ballot by number is one for the judge to make on application by the prosecution as part of the jury protection procedure. The standard form direction to the jury makes clear that they must not hold the arrangements against the defendants.

(g) The effect on the fairness of the trial of the appellants

[26]Although therefore it is clear that the practice adopted in the Crown Court at Liverpool is one that is unique to that location of the Crown Court, we cannot see how in the circumstances of this case it had any effect on the fairness of the trial.[27]In Comerford this court determined the fairness of the trial was not affected by the procedure of balloting by number as long as the right of the defendant to challenge was not impaired. It is difficult to see how these rights could be impaired given the right to inspect the panel from which the names of jurors might be drawn under s.5(2) of the Juries Act 1974. There is no suggestion in the present case that the right of challenge was in any way impaired.[28]Nor could it have had any effect on the perception of the jury in the light of the explanation given by the judge to the jury as set out at paragraph 18 above.[29]In any event we would agree with the comment made in the Criminal Law Review in its report on Comerford at [1998] Crim LR 285: With the procedure adopted by the judge in this case, it is unlikely that the jurors themselves would have known that the procedure was unorthodox, so there is no reason to suspect that they adopted a different attitude to the accused because of it.[30]Nor in our view did the arrangements for lunch and coffee have any effect on the fairness of the trial. Although the jury were not directed that they should not hold these arrangements against the defendants, the jurors would have attached no significance to the court making such arrangements for refreshments; it is fanciful to suggest that these could have that effect.[31]This is quite distinct from the situation where the jury have to be given special protection as was the other part of the arrangements made in Comerford. In such a case as Lord Bingham said at page 242: It is axiomatic that no matter what the exigencies of any case, no procedural application should be granted which might in any way jeopardise the fairness of the outcome of the trial. That consideration is paramount. If a defendant cannot be fairly tried he must not be tried at all. Our practice has, however, sanctioned measures for the protection of juries in appropriate cases. The practice is to warn the jury in very clear terms that they must not in any way hold it against the defendant that such measures have been taken. Such a warning was given in this case, and no complaint is made that it was in any way inadequate. As in any other case the jury must decide the case on the evidence they hear in court and nothing else. We have no reason to doubt that the jury paid proper attention to the warning given.[32]The practice of picking jurors up at a point in the City is, in our judgment, not a measure that is akin to special protection of which the jury might become aware and so lead jurors to be tempted to “view with disfavour an accused person whose friends or associates are thought likely to act in a criminal way”. It is, however, an unusual step and could give rise to some suspicion as to why it was being done. In the present case, as this was the practice at Liverpool in cases of over two weeks duration, the jury were rightly told that this was the usual practice. There was no risk that the jury would therefore hold this against these applicants.[33]We have therefore reached the conclusion that the fairness of the trial was not affected and the safety of the conviction not in any way impaired by the practice adopted at Liverpool.

(h) Observations on local practices

[34]It was submitted on behalf of the appellants that the Crown Court was a single court and local practices should not be permitted. There is very considerable force in this submission. The practice at Liverpool of balloting by number was adopted before the creation of the Criminal Procedure Rules Committee and the gradual systemisation of procedure and practice through the Criminal Procedure Rules and Practice Directions by the Lord Chief Justice.[35]Such local practices, including the practice at Liverpool, can therefore no longer be justified. The Crown Court is a single court; its procedure and practice must be the same in all its locations, unless there is an objectively justifiable basis for such a practice based on local conditions. If a court considers that such a practice is required because of local conditions, then in these rare circumstances, details of the practice and the justification must be submitted to the office of the Lord Chief Justice before it is implemented. The Lord Chief Justice may, if appropriate, refer it to the Criminal Procedure Rule Committee.[36]No such justification for the local practice of balloting at Liverpool was advanced by the prosecution before us. However, the practice has some advantages; it may be the case that balloting by number is a practice which should be allowed in defined circumstances in the Crown Court. We will therefore ask the Criminal Procedure Rule Committee to consider the issue.[37]Although these observations are directed at local practices which are needed because of objectively justifiable local conditions, there are practices that are initiated in some courts with a view to improving the just and fair despatch of the business of the Crown Court. Such initiatives are to be greatly welcomed and encouraged. However, to ensure such initiatives are looked at in the wider context that there is a single Crown Court, courts should inform the office of the Lord Chief Justice of such initiatives before embarking on them. The initiative can then be referred to the Criminal Procedure Rules for consideration and monitoring. If the practice is beneficial, that benefit can be extended to the whole of the jurisdiction of England and Wales. If not, such a practice must cease.

(a) The judge’s direction to the jury at the outset of the trial

[38]Immediately after the jury had been empanelled, the judge gave the jury the standard directions, including a direction that they must not research matters on the internet. He said that included looking up anything to do with the trial, including the lawyers. His remarks were clear and suitably forceful.

(b) The allegation immediately after the conclusion of the trial

[39]On 8 July 2011 the jury returned verdicts of guilty in respect of these three appellants. Some of the members of the jury then went to a public house in Dale Street.[40]After that a juror, who was referred to in open court as juror A, went to another public house, Taff’s Tavern, where he was a regular drinker. There he met and spoke to someone he had know many years, Darryn Robinson. Darryn Robinson was a close friend of Martin McMullen, the son of the appellant McMullen. During that meeting, juror A told Darryn Robinson that he had been one of two jurors who had been in favour of a not guilty verdict but had ultimately voted guilty. He said one of the jurors, referred to in open court as juror B, had googled the defendants. After making an enquiry of others in the public house Darryn Robinson told Martin McMullen, the son of the applicant McMullen, what had been said. On 11 July 2011 Martin McMullen contacted the solicitor for the appellant McMullen stating that witnesses could provide evidence that a member of the jury, juror A, had disclosed that internet research had been carried out. The solicitors took statements from those at the public house, including Darryn Robinson and sought to obtain a statement from juror A. He declined to give one.[41]Based on that material an application was made to this court for leave to appeal against conviction.

(c) The directions given at directions hearings

[42]On 20 December 2011 this court (Pitchford LJ, Wilkie and Sharpe JJ) decided that a reference should be made under s.23A of the Criminal Appeal Act 1968 to the Criminal Cases Review Commission for the conduct of an investigation.[43]The investigation was then conducted in the usual thorough and clear way by the Criminal Cases Review Commission who were assisted by the Merseyside Police in conducting interviews. The Court is extremely grateful to the Commission for their detailed and most helpful report.[44]On 22 November 2012 this court, (Hughes LJ, the then Vice-President, Ramsey and Irwin JJ) gave directions for the hearing of the appeal, including directions for further interviews and for the attendance of some of the jurors at the hearing of the application for leave to appeal.

(d) The conduct of the appeal

[45]In the result it was directed that four jurors, juror A, juror B, juror C and juror D attend. We heard evidence from each at the hearing at Liverpool. With the agreement of counsel they gave evidence anonymously screened from public view. As the allegations, if proved, might expose the jurors to penal sanctions, we warned each that he or she need not answer questions that might tend to incriminate them. Save in the case of juror A, the prosecution led the evidence of each juror. In the case of juror A, his evidence was led by Mr Wrack.[46]Darryn Robinson also attended the hearing in anticipation that he might be called to give evidence. In the course of the hearing we concluded with the agreement of counsel that it was not necessary for the court to consider his evidence as it was accepted that juror A had spoken to him in the terms we have outlined. It was not suggested by the prosecution that juror A had in any way been suborned or otherwise prompted to say what he had said by either Darryn Robinson or by anyone else on behalf of the appellants.

(e) The allegations

[47]In the course of the investigations by the Criminal Cases Review Commission of the allegations of a serious irregularity by the jury in researching on the internet, four specific allegations emerged: i) Juror C had read during the currency of the trial a book entitled Cocky about an infamous Liverpool drug dealer, Curtis Warren, which referred to the Baybasin family. He had told the other jurors of this. ii) Juror B had researched matters on the internet relating to the trial. There was on the internet material about the Baybasin family and Baybasin’s brothers which detailed their extensive involvement in drug dealing. iii) Jurors B and C talked about the value of Baybasin’s house. iv) Juror D had been attracted to one of the barristers and looked him up on the internet. This allegation evaporated during the evidence before us; juror D made it clear in no uncertain terms that she had not been attracted to any counsel. In any event it would have been impossible to see how looking up counsel on the internet could have had any effect whatsoever on the safety of the conviction.

(f) The allegation of reading of books on drug dealing

[48]Juror D gave evidence that she recalled juror C reading the book about Curtis Warren during the trial. Juror B also gave evidence that juror C was reading a fictional book about international drug dealing during the trial, but he did not recall what it was.[49]We found Juror C to be a most impressive witness. We had no hesitation after hearing his evidence on the first day of the appeal in accepting his evidence that he did not read any book about drug dealing during the trial. He had said that he had bought Cocky the book about Curtis Warren and another book to do with drug dealers after the trial, as he was interested in learning more about international drug dealing. He was, however, plainly incensed at the attack on his integrity. After he had given his evidence, he examined his account with Amazon; it showed that he had bought the book Cocky and another book about drug dealing two weeks after the conclusion of the trial. He informed the court of this by a note. This was not accepted as evidence. He was therefore recalled. He produced a print out of the account. Even then he was challenged on the basis he might have read another book on drug dealing. He was plainly extremely upset at this further imputation on his integrity; we unhesitatingly reject this imputation. We are sure that he was a witness of unimpeachable honesty and had carried out his civic duties with complete integrity. As it is clear the book on Curtis Warren was purchased by juror C after the conclusion of the trial, juror D’s recollection when she was asked about this a year after the trial must have been mistaken; even if juror B’s recollection was correct (and we do not think it was) and juror C had been reading a fictional book on drug dealing, it would not have mattered. It would be absurd to suggest, for example, that a juror trying a murder could not read novels involving a murder.[50]The first allegation of jury irregularity therefore fails on the facts.

(g) The allegations of research on the internet

[51]This second allegations rested substantially on the evidence of witness A. He was interviewed by the police on behalf of the Criminal Cases Review Commission on 23 August 2012. He made clear in his evidence to us that his recollection was best set out in that interview. In it he said that although he was not really interested, he knew that two jurors had googled Baybasin and one had googled a barrister, as he had overheard conversations. He identified one of the persons who had conducted the google search on Baybasin as juror B; juror B had said he had googled Baybasin and had said Baybasin had a past. He also identified the juror who had looked the barrister up on the internet as juror D; he said she had “fancied” him. He had not reported anyone for doing this during the trial as he did not want to get them into trouble.[52]In his evidence to us he repeated the allegation that juror B had said on one occasion that he had googled Baybasin, but as juror B had not told anyone what he had found, he, juror A, had not told the judge. He said later in his evidence that juror B must have said Baybasin had a past. He added that he was shocked at the conduct of juror B; he had been brazen and he was disgusted with him. The other jurors had laughed and said that he must not do that. He accepted that juror B might have said something which he did not hear properly. He also repeated the allegation about juror D googling the barrister she “fancied”[53]In addition we were provided with a statement from juror E whose evidence was to the effect that jurors B and C had both suggested looking on the internet, but neither had said they had researched anything on the internet. All the other jurors who were interviewed by the Criminal Cases Review Commission made it clear that no jurors had researched matters on the internet.[54]In his evidence to us Juror B denied emphatically that he had conducted any research on the internet during the trial. He said he did so only after the end of the trial when the jury were told they could do so. He had then googled “Baybasin” on his mobile phone when he went to the pub with other jurors, but could not recall what if anything came up; he thought there was nothing specific.[55]Juror C told us that he only looked at the internet in relation to the case after the trial had finished when he was told that the jury could do so. He did not do so during the currency of the trial. He told us that no juror looked anything up on the internet. One of the other jurors in his or her statement to the Criminal Cases Review Commission also looked on the internet about the case after the conclusion of the trial when the jury was told that they could do so.[56]We have considered all of the evidence very carefully. We accept the further part of juror C’s evidence as entirely truthful. We are satisfied that Juror B also gave truthful evidence. Neither these jurors nor any other juror looked up matters relating to the trial during the trial. Juror A was on his own account a man who kept himself to himself. He told us he was an alcoholic who was on anti-depressants. We are quite sure that juror A was an entirely unreliable witness; we have no hesitation in rejecting his evidence. We have no doubt that when he found out that one of those who drank regularly at Taff’s Tavern was a friend of McMullen’s son, he invented the account that he had wanted an acquittal to minimise his own role in the conviction. It is also likely that he also made up the allegations of googling to provide some help to McMullen.[57]This allegation fails (h). The allegations in respect of the value of Baybasin’s house[58]The location of Baybasin’s house in London was given in evidence at the trial. Juror D said that she vaguely recalled jurors B and C speaking about the value of Baybasin’s house; she did not say that they had conducted any research on the internet. We have concluded that her recollection was unreliable in relation to the book about Curtis Warren. We accept the evidence of jurors B and C that they never discussed the value of Baybasin’s house. The allegation fails.

(i) Conclusion

[59]All the allegations of jury impropriety and irregularity fail.[60]We would add that great care has to be exercised before this kind of appeal proceeds. In Lewis [2013] EWCA Crim 776 this court observed at paragraph 25 that the inference that complaints after verdicts simply represent a protest by a juror at verdicts with which he or she disagrees are likely to be overwhelming.[61]It was evident to us that each of the jurors who had undertaken public service in an 8 week trial found it deeply distressing to be recalled to court over 2 years later, to be accused of wrongdoing and to have their integrity questioned. The allegation which led to this appeal was a complaint by a juror who probably was motivated by the desire to disassociate himself from the verdict for personal reasons which we have explained.[62]Although that was not known at the time the investigation by the Criminal Cases Review Commission was initiated, the fact that complaint of irregularity was first made after the verdict should henceforth be a very firm indication against the initiation of any inquiry into the way the jury acted, absent other compelling evidence. Juries are now told in very clear terms to report irregularities during the trial. The evidence from this and other cases demonstrates that juries take their responsibilities with great seriousness and care as one would expect of citizens called to perform such a high civic duty. The evidence is that they do report irregularities if they occur.[63]We therefore have little doubt that if one of the jurors during the trial falls below the standards expected of a juror, the other jurors will report that to the judge during the trial and before the verdict. That is the presumption upon which this court should act, if the complaint is first made after the taking of the verdict. Inquiries should therefore not be ordered in such cases and the finality of the verdict accepted, absent other strong and compelling evidence. To do otherwise is neither fair nor just. Jurors doing their public duty should not in such circumstances be put through an examination of their conduct some considerable time after the performance of their civic duties.

APPLICATIONS FOR LEAVE TO APPEAL AGAINST SENTENCE

[64]The appellants Baybasin, (born 01.01.63 and now 50) and McMullen (born 18.07.50 and now 63) renew their applications for leave to appeal against sentence. Similar application are made by the applicants Huseyin Azis (born 25.10.67 and now 46), James Fairbrother (born 19.12.57 and now 55), Neil Smith (born 14.02.61 and now 53), Neil Bogle (born 04.08.77 and now 36), Neil Smith (born 14.02.61 and now 52), Tosun Oyuncu (born 25.05.59 and now 54), and Anthony Geraghty (born 23.07.70 and now 43). We can deal with these applications comparatively briefly.

The decision of the single judge

[65]In each case leave to appeal was refused by the single judge, Globe J. who made the following general observations relevant to all the applicants:
“1. The lengthy observations by the trial judge in setting out his sentencing reasons are indicative of the grasp of detail that the judge had about the case as a whole which had arisen partly from having dealt with the case over many months and also partly from having spent 8 weeks trying Baybasin and McMullen on count 4 of indictment 1 and Molloy on count 9 of indictment 1. He was ideally placed to assess the evidence and the criminality and roles played by those involved in the conspiracy in count 4 as well as other associated counts and to make the factual findings that he made. None of the grounds of appeal relied upon by those seeking permission to appeal against sentence which invite consideration of any different factual finding provide an arguable basis for an appeal. 2. In relation to count 4 specifically (Baybasin, McMullen and Fairbrother only): a. The judge was entitled to conclude: i.) That there was a stockpile of 40 tonnes of cocaine available to be shipped from abroad, ii.) That the money was available for it, and iii.) That all Defendants were thereby to be sentenced for their part in international drug trafficking on a vast scale which was highly organised and had been planned and in the course of existence for a considerable time. b. It is apparent from the judge’s reasons that he had full regard to the principle that in circumstances where no drugs have actually been imported a lower sentence may be imposed to take account of that fact. c. Nonetheless, the judge formed the view on the facts and authorities that the extent of the conspiracy was such that for those at the top of the conspiracy a sentence in the region of 30 years was an appropriate sentence. d. In view of the factual findings that were made, it cannot reasonably be argued that the judge’s approach was wrong in principle or led to manifestly excessive sentences by reason only of the fact that he took a sentence in the region of 30 years as that starting point.” a. The judge was entitled to conclude: i.) That there was a stockpile of 40 tonnes of cocaine available to be shipped from abroad, ii.) That the money was available for it, and iii.) That all Defendants were thereby to be sentenced for their part in international drug trafficking on a vast scale which was highly organised and had been planned and in the course of existence for a considerable time. ii.) That the money was available for it, and b. It is apparent from the judge’s reasons that he had full regard to the principle that in circumstances where no drugs have actually been imported a lower sentence may be imposed to take account of that fact. c. Nonetheless, the judge formed the view on the facts and authorities that the extent of the conspiracy was such that for those at the top of the conspiracy a sentence in the region of 30 years was an appropriate sentence. d. In view of the factual findings that were made, it cannot reasonably be argued that the judge’s approach was wrong in principle or led to manifestly excessive sentences by reason only of the fact that he took a sentence in the region of 30 years as that starting point.”

ii.) That the money was available for it, and

[66]We agree with those observations. We emphasise that the judge was in the best position to assess the individual roles and level of criminality of the defendants.

The scale of the conspiracy to import cocaine

[67]The conspiracy to import cocaine to which we have referred at paragraph 7.iii) above was the most serious of the offences which were before the court. It was highly organised drug trafficking on a vast scale, which had been planned and was in execution for a considerable time. We strongly endorse the judge’s sentencing remarks as to the greed of the appellants and applicants, who showed complete disregard for the consequences to others of their evil trade of drug dealing, and for the impact of their activities on the fabric of society.[68]Two points arise in relation to the conspiracy which were the subject of submissions on behalf of several of the applicants. i) The judge as we have indicated was entitled to be satisfied as to the correctness of the prosecution’s allegation that there was an available stockpile of about 40 tonnes of cocaine, which was to be brought into this country piecemeal. That allegation was soundly based on a recorded conversation between Taylor and Fairbrother in April 2009, and had been a feature of the evidence which the judge heard during the trial. ii) A number of the applicants emphasised that no drugs were in fact imported, and submitted that the judge gave insufficient weight to that fact. They submitted that this crime should be treated either as a conspiracy which failed because it lacked sophisticated planning and organisation, or as a conspiracy which was voluntarily abandoned. We do not accept either of those arguments. It is true that a planned importation was frustrated because no suitable shipping arrangements could be made, but the judge was entitled to find as he did that the conspirators had been frustrated by circumstances beyond their control. He was entitled to conclude that “drugs were available and waiting to be shipped, payment was not an issue and the ultimate problem – but not for the want of trying – was over transportation”.[69]We accept, as did the judge below, that the failure to achieve any actual importation is a factor which the court should bear in mind in sentencing: see e.g. the cases cited to the judge of Hardy & O’Sullivan [2004] EWCA Crim 2906, Clough [2010] 1 Cr App R (S) 53 and Shaw [2011] EWCA Crim 98. As against that the court must also have regard to the harm which would have been caused if the intentions of the conspirators had been fulfilled.[70]None of the applicants who pleaded guilty has advanced any ground of appeal to the effect that he received insufficient credit for his plea. It is therefore unnecessary for us to recite the details of the differing stages of proceedings at which specific pleas were entered.

Baybasin

[71]Baybasin was, as we have set out, convicted of two offences charged in indictment 1: concealing criminal property – see paragraph 7.ii) above; and conspiracy between 1st July 2008 and 30th April 2009 to import cocaine (Count 4) – see paragraph 7.iii). He was sentenced to concurrent terms of four and a half years, and thirty years’ imprisonment.[72]On behalf of Baybasin submissions were made as to a number of reported cases in which a starting point for sentence of less than 30 years was either adopted at trial or found to have been appropriate when a higher sentence was considered on appeal. Reference was made, amongst other cases, to Soares [2003] EWCA Crim 2488, Brookhouse [2004] EWCA Crim 3471, and Gonal [2011] EWCA Crim 587. The submission was made, putting it broadly, that those cases involved equal or greater criminality.[73]In our judgment, however, there is nothing in any of those cases which leads to the conclusion that the sentence on Baybasin was manifestly excessive in all the circumstances of his case. We take into account that Baybasin was treated by the judge as being a man of previous good character, and we take into account the point made on his behalf that after the abandonment of the planned importation, Baybasin did not involve himself in any other criminal activity in the months before his arrest. Those points, however, could carry only limited weight having regard to the scale of this drugs conspiracy, and the importance of Baybasin’s part in it.[74]We reject in particular the argument based on a suggested disparity between Baybasin’s sentence and that of Taylor (whose overall sentence for a number of serious offences was based on a starting-point of 33 years). Although the judge below spoke of Taylor having been the head of the Liverpool end of the drugs operation, and Baybasin the head of the London end, it is not correct to say that he thereby equated them in all respects. The evidence showed plainly that Baybasin had engaged in extensive travel to South America in connection with the drugs conspiracy, and the judge was entitled to conclude as he did that Baybasin was near the top of the supply chain and distribution organisation, and was not only controlling and directing operations in London but also had international connections.[75]In Baybasin’s case, accordingly, we can find no arguable ground of appeal against his sentence.

McMullen

[76]McMullen, a man of previous good character, was convicted on Count 4 of indictment 1 of the main conspiracy to import cocaine. He was sentenced to 23 years’ imprisonment. He seeks an extension of time in which to renew his application for leave to appeal against that sentence.[77]We take into account his recent diagnosis of a significant medical problem, and the other matters which he has drawn to our attention. We can however find no merit in his submissions that his sentence was too high either in itself, or by comparison with any of his co-defendants. There is no basis on which there could be a successful challenge to the assessment that McMullen, whose drug trafficking activities included travel to Venezuela, was at the heart of the conspiracy and playing a middle-ranking but very significant role.[78]We reject as entirely groundless the suggestion made in written submissions on his behalf that the judge might have shown some unfair hostility to this applicant because of matters occurring in a trial many years ago at which the judge had been counsel representing one of McMullen’s then co-accused.

Azis

[79]Azis, whose only previous convictions were for comparatively minor offences, pleaded guilty to three serious and separate offences. On Count 3 of indictment 1, he pleaded guilty to concealing criminal property in the circumstances which we have set out at paragraph 7.ii), for which he received a sentence of 2 years’ imprisonment, concurrent with his other sentences. On Count 2 of indictment 2 he was sentenced to 6 years’ imprisonment for his admitted role in a conspiracy to supply heroin of which he was in possession of a sample. On Count 15 of indictment 2 Azis pleaded guilty to his part in a conspiracy (also involving Taylor and Oyuncu) to supply false passports for use in assisting persons to enter the UK unlawfully. He had been engaged in that serious criminal activity for about 4 months and had been paid for doing so. He was sentenced to 3 years’ imprisonment, consecutive to his sentence on Count 2. Thus his total sentence was 9 years’ imprisonment.[80]His grounds of appeal are that the sentence of 6 years for conspiracy to supply heroin was manifestly excessive having regard to his role and his personal mitigation, and that the total sentence of 9 years was in any event manifestly excessive. We cannot accept those submissions. We bear in mind that the judge assessed Azis’ role as that of a foot soldier and an employee of the criminal organisation. Azis nonetheless played an important part, and his personal mitigation could carry only limited weight in the context of this serious offending.[81]We also reject the argument that his total sentence, or any part of it, was excessive by comparison with the sentences on other defendants; as Globe J pointed out in his reasons for refusing leave, there were too many differences between Azis’ offending, and that of others, for there to be any arguable basis for contending that his sentence should be reduced on grounds of disparity.

Fairbrother

[82]Fairbrother pleaded guilty to the main offence of conspiracy to import cocaine (Count 4 of indictment 1) for which he was sentenced to 15 years’ imprisonment. He also pleaded guilty to offences of transferring criminal property (Count 1 of indictment 1), conspiracy to supply heroin (Count 2 of indictment 2) and conspiracy to import heroin (Count 3 of indictment 2). For those offences he received concurrent sentences of 30 months, 6 years and 12 years respectively. Thus his total sentence was 15 years’ imprisonment.[83]The judge was in our view entitled to find as he did that Fairbrother was a trusted subordinate providing advice and assistance to Taylor and also passing on information to McMullen. He was also entitled to find that the overall level of criminality which the evidence established meant that Fairbrother’s involvement in drugs was considerable. These offences were greatly aggravated by two previous convictions: in 1993 Fairbrother had received a sentence of 3 years’ imprisonment for supplying controlled drugs, and in 2009 he was sentenced to 8 years’ imprisonment for possession with intent to supply of a class A controlled drug.[84]By the time he was sentenced for these offences, Fairbrother had served about two and a half years of that 8-year sentence. In our judgment the judge had proper regard to that fact when he reduced the total sentence of 20 years which he would otherwise have passed to a total of 15 years’ imprisonment. We cannot accept the submission made by Mr Lewis that the judge took too high a starting point. Nor can we accept the arguments based on totality and disparity. In our judgment, there is no ground on which it could properly be argued that that total sentence was either wrong in principle or manifestly excessive.

Bogle

[85]Bogle, who had previous convictions for comparatively minor offences, had pleaded guilty to four separate counts of conspiring to supply Class A controlled drugs. The basis of those pleas was that he had been a local distributor of those drugs, as follows: i) On count 8 on indictment 1 in April 2009 in relation to dealing in kilo amounts of heroin, ii) On count 9 on indictment 1 in May 2009 in relation to dealing in 1.22 kilos of cocaine, iii) On count 3 on indictment 3 in November 2009 in relation to dealing in 1 kilo of cocaine, and iv) On count 9 on indictment 2 in December 2009 in relation to dealing in 1 kilo of heroin.[86]Bogle was sentenced to concurrent terms of 6 years on the first, third and fourth of those offences, with a consecutive term of 6 years 8 months for the second offence. Thus his total sentence was one of 12 years 8 months’ imprisonment.[87]Each of those offences was serious in itself and was aggravated by the commission of the others. We cannot accept the written submission made on his behalf to the effect that his offending should have been treated as if it were as single offence of dealing in 5-6 kilos of a Class A drug. Once again, we take the view that there are so many differences between the offending of individual defendants that there can be no successful ground of appeal based on any suggested disparity. We are not persuaded by Mr Carville’s oral submissions to the effect that all the sentences should have been ordered to run concurrently. On the contrary it would in principle have been open to the judge to impose consecutive sentences in each case, and he plainly had regard to totality when he decided to make only one of the sentences consecutive to the other concurrent terms. In our judgment there is no arguable basis for contending that the total sentence of 12 years 8 months’ imprisonment was wrong in principle or manifestly excessive in all the circumstances of Bogle’s case.

Smith

[88]Smith, who had previous convictions for offences of dishonesty, pleaded guilty to four offences on indictment 2; Count 9, conspiracy to supply heroin, for which he was sentenced to 6 years; Count 16, conspiracy to import amphetamine, for which he received a concurrent term of 4 years; Count 17, conspiracy to supply heroin, for which he received a concurrent term of 12 years; and Count 18, offering to supply amphetamine, for which he received a consecutive sentence of 4 years. Thus his total sentence was one of 16 years’ imprisonment. He seeks an extension of time in which to renew his application for leave to appeal against his sentence.[89]The first of the amphetamine offences related to the importation between June and December 2009 of about 79 kilos of amphetamine, at a high level of purity, from the Netherlands through England into Northern Ireland. The other amphetamine offence, committed in December 2009, related to an offer to facilitate the supply of up to a further 500 kilos. As to the heroin offences, Count 9 related to 1 kilo of heroin which was seized by the police. On count 17 the judge found, and was entitled to find, that Smith had played a significant and important role in brokering the supply of 30 kilos of heroin, at a high level of purity, which was immediately available to him, and the prospective supply of a further 90 kilos which would become available to him at a later date.[90]Plainly those offences were individually and collectively very serious. We cannot accept the submission that the judge over-stated the seriousness or exaggerated Smith’s role in the offences. Nor do we accept that the judge gave insufficient weight to Smith’s mitigation. The judge took full account of totality by ordering that the sentences for the amphetamine offences should be concurrent with one another, and that the sentences for the heroin offences should also be concurrent with one another. There can be no possible criticism of his decision that the overall sentences for each of those two groups of offences should run consecutively. It follows that in our judgment there is no ground in respect of which it could be argued that the total sentence was wrong in principle or manifestly excessive.[91]An additional submission was advanced orally by Mr Fitzgibbon QC on behalf of Smith to the effect that Globe J should have recused himself from acting as the single judge in this instance. The basis of this submission was that in July 2009 Globe J had sentenced a man called Corish for offences of conspiracy to import heroin and cocaine. Later, investigations into these defendants showed that some of them had also been involved in the same crimes: in particular, the relevant conspiracies became the subject of charges against Taylor and Bogle in these proceedings. It was accepted that Smith himself was not charged with any offence which had also involved Corish, and that when Corish was sentenced the involvement of others would not have been known to the court. Nonetheless it was submitted that Globe J should not have acted as the single judge who initially determined Smith’s application for leave to appeal against sentence because there might be an appearance of bias.[92]We reject this submission as wholly without foundation. We cannot think that a fair-minded and informed observer would think there was any risk that a judge might be biased against a defendant merely because the judge had some years previously dealt with a man who could indirectly be linked to the present defendant.

Oyuncu

[93]Oyuncu, who had a previous conviction in 1999 for possession of cannabis with intent to supply, pleaded guilty to the main conspiracy to import cocaine (Count 4 of indictment 1), for which he was sentenced to 19 years’ imprisonment. He also pleaded guilty to conspiracy to supply cocaine (Count 2 of indictment 2) and to conspiracy to possess false identity documents with intent (Count 15 of indictment 2). Thus his total sentence was one of 19 years’ imprisonment. He seeks an extension of time in which to renew his application for leave to appeal against that total sentence.[94]Oyuncu’s grounds of appeal are based on submissions also raised on behalf of other applicants, in particular as to the fact that the main conspiracy did not result in the importation of any cocaine. We have already addressed that point. The judge concluded, as he was entitled to do, that the evidence showed Oyuncu capable not only of acting as Baybasin’s lieutenant but also of operating in his own right in drug trafficking. Notwithstanding Mr Carville’s helpful oral submissions, we can see no ground on which there could be a challenge either to the judge’s findings in respect of Oyuncu’s role or to the length of his total sentence.

Geraghty

[95]We turn finally to the applicant Geraghty, who has not sought to appeal against his prison sentence of 20 years for his part in the main conspiracy to import cocaine (Count 4 of indictment 1) and for other offences, but renews his application for leave to appeal against the financial reporting order which was made in his case. It is submitted on his behalf that any such order was wrong in principle, or alternatively that the duration of the order for the maximum permitted term of 15 years was manifestly excessive. We cannot accept those submissions. The judge was entitled to make the assessment he did of the risk of future re-offending, and in the light of that assessment it cannot be said that the order was unnecessary. Nor was it disproportionate or excessive in its duration; the order does not impose any particularly onerous demands upon Geraghty, and its duration has to take account of the fact that he will be in prison for a number of years, and that important parts of the order will not effectively bite until he is released.

Conclusion on the applications

[96]For those reasons, each of the renewed applications for leave to appeal against sentence fails. It follows that there is no purpose in our granting any extension of time to those applicants who seek one. All applications for extensions of time and for leave to appeal are accordingly dismissed.[97]We conclude by paying tribute to the care and thoroughness with which the judge dealt with a most complex sentencing exercise, involving not only these applicants but also other defendants and a total of 44 counts on five indictments.

Cited in 11 later judgments

and 2 more of the most senior