Hartwell v R. [2016] EWCA Crim 42

[2016] EWCA Crim 42Case No 201201755 B1 & 201600703 B1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LIVERPOOL
His Honour Judge Boulton
T20101334 & T20107424
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/03/2016
Before
LORD JUSTICE TREACYMR JUSTICE FLAUXSIR DAVID MADDISON
Between
ELLIOT HARTWELLAppellantTHE QUEENRespondent
M. Hill QC & C. Harding (instructed by Carter Moore) for AppellantM. Ainsworth & S. McNally (instructed by the CPS) for RespondentK. J. Hegarty QC appeared as Special CounselHearing Hearing dates : 23 & 24 February 2016
JudgmentLord Justice Treacy :Background
[1]This case involves an application for leave to appeal against conviction referred to the Full Court by the single judge for which an extension of time of 525 days is required. Secondly, it involves a referral by the Criminal Cases Review Commission of the sentence imposed.[2]On 10 September 2010 the applicant pleaded guilty to count 1, conspiracy to supply cocaine, alleged to have taken place between 1 June 2009 and 14 April 2010 and count 3, possession of cannabis with intent to supply on 5 February 2010. The judge sentenced Hartwell to 14 years and 8 months imprisonment for the conspiracy. This equated to a term of 22 years after a trial. Hartwell was granted full credit for an early guilty plea, the time for entering such a plea having been extended in order to enable his counsel to have consultations with him. 291 days served on remand was ordered to count towards sentence pursuant to section 240 of the Criminal Justice Act 2003. A concurrent term of 2 years imprisonment was imposed in relation to count 3. Sentencing took place at the end of a two day hearing on 25 November 2010. Prior to that date the Crown had served a lengthy opening note setting out the nature of the conspiracy and detailing the involvement of individuals within it including Hartwell.[3]When Hartwell had been interviewed he had made no comment; he had not served a defence statement despite initially pleading not guilty to the conspiracy count; nor did he serve a written basis of plea before or after receipt of the Crown’s opening note.[4]In all there were about 18 co-conspirators named in the count to which Hartwell pleaded guilty. Those names did not include Aaron Coghlan, a person said at that stage by the Crown to have been significantly involved in the conspiracy. He was not arrested until the day Hartwell pleaded guilty on his return to this country from abroad. By the time of sentence it was intended that there should be a trial of Coghlan and others, some of whom had not pleaded guilty to the conspiracy, in the spring of 2011. A separate indictment was created for that purpose.[5]At Hartwell’s sentencing hearing in November 2010 the Crown, which was asserting that Hartwell had been involved at a high level in the conspiracy, raised with the judge the possibility of putting off sentence in Hartwell’s case until after the trial of Coghlan and others. Mr Ainsworth for the Crown raised the matter again after mitigation for Hartwell had sought to dissuade the judge from placing Hartwell as high in the hierarchy of the conspiracy as the Crown was contending for. On both occasions counsel for Mr Hartwell indicated that his client was anxious to be sentenced that day, notwithstanding the fact that amongst other things connections between Hartwell and Coghlan had been referred to in the opening, with Hartwell’s counsel asserting that such contacts were merely social.[6]The judge had indicated that he was minded to place Hartwell after mitigation in the organisational role which the Crown contended for, but that he was prepared to postpone sentence to enable counsel for Hartwell to urge a different view after Coghlan’s trial. Notwithstanding the judge’s indication Hartwell’s counsel, after conferring with him, invited the judge to proceed to sentence. The judge then indicated, according to the court log, that he would not refer to the involvement of Coghlan or others pleading not guilty when sentencing.[7]The conspiracy was said to have run for a period just short of a year, but not all defendants were active participants for the entirety of that period. The Crown’s case was that the conspirators were well organised and well equipped. There had been a sophisticated series of importations of the drugs from Spain. After arrival in this country the drugs were cut at locations used by the conspirators from which significant items of equipment, mixing agents and other paraphernalia were recovered. The architect of the conspiracy was said to be Simon Dutton who had not been arrested. His principal role was as the organiser of consignments of drugs to be imported from Spain in air-conditioning units. Although the drugs were imported, the case as charged was one of conspiracy to supply in this country encompassing their sourcing in Spain, their importation, their cutting after arrival, and their distribution through a supply network so that the drugs eventually reached the street. The conspirators were those who had been involved in this process in a substantial way. Street-level dealers were not indicated as conspirators.[8]Hartwell was placed at a level of responsibility below Dutton. He together with Anthony Carter, Mark Smith and others were advanced by the Crown as Dutton’s principal lieutenants who had all played significant and organisational roles within the conspiracy. The role attributed to Hartwell was one of a high level supplier of the drugs with a number of people working underneath him including Daniel Houldsworth and Matthew Barnes. Those men in turn, were said to have had other distributors working for them. Carter was said to be someone close to Dutton involved in the distribution of drugs once imported. He appears to have been a provider of the drugs to Hartwell.[9]In opening the Crown made plain that it was not referring to every item of evidence against Hartwell. Paragraph 96 of the opening note reads as follows:
“h. Elliott Hartwell: (i) Played an organisational role in this conspiracy. (ii) 17th July 2009 Simon Dutton was overheard speaking to someone called “Mel” or “El” referring to ‘tickets’ and ‘a picture’. (iii) He was in telephone contact with Carter throughout July 2009 (iv) He met with Carter on the B&Q car park on George’s Road on the 26th August 2009, Carter having returned from Spain that day. (v) Hartwell was (with Smith, Carter and Barnes) organising the delivery of Cocaine on the 3rd November. He met with Smith and Carter prior to that date and was in telephone contact throughout with them and Barnes. (vi) Hartwell was observed meeting Daniel Houldsworth on the 5th February 2010 and later that day was arrested at 57 Buxton along with Houldsworth and a large quantity of Cannabis, a quantity of Cocaine and more than £5,000 in cash. (vii) Across various telephones, either by direct contact or by stored numbers in his or their telephones, Hartwell was linked to Keith Grice, Anthony Carter, Matthew Barnes, Daniel Houldsworth, Justin Evans, James Hill, Mark Smith and Catherine Mason. (viii) ‘Tick-lists’ recovered in the case featured the name ‘Elliot’.” (i) Played an organisational role in this conspiracy. (ii) 17th July 2009 Simon Dutton was overheard speaking to someone called “Mel” or “El” referring to ‘tickets’ and ‘a picture’. (iii) He was in telephone contact with Carter throughout July 2009 (iv) He met with Carter on the B&Q car park on George’s Road on the 26th August 2009, Carter having returned from Spain that day. (v) Hartwell was (with Smith, Carter and Barnes) organising the delivery of Cocaine on the 3rd November. He met with Smith and Carter prior to that date and was in telephone contact throughout with them and Barnes. (vi) Hartwell was observed meeting Daniel Houldsworth on the 5th February 2010 and later that day was arrested at 57 Buxton along with Houldsworth and a large quantity of Cannabis, a quantity of Cocaine and more than £5,000 in cash. (vii) Across various telephones, either by direct contact or by stored numbers in his or their telephones, Hartwell was linked to Keith Grice, Anthony Carter, Matthew Barnes, Daniel Houldsworth, Justin Evans, James Hill, Mark Smith and Catherine Mason. (viii) ‘Tick-lists’ recovered in the case featured the name ‘Elliot’.”
[10]The evidence showed that there had been four importations of cocaine between July and early September 2009. Only the last consignment was intercepted. It was found to involve 10.43 kilograms of cocaine at 72 percent purity. Those drugs had a wholesale value of over £500,000, with a street value after cutting of about £3 million. The Crown invited the court to infer that the three previous importations must have involved similar quantities of drugs.[11]The reference at (v) above to 3 November 2009 involved the Crown asserting that after the fourth importation from Spain had been intercepted, the conspiracy to supply continued with drugs sourced from elsewhere. On 3 November police made a seizure of just under one kilogram of cocaine. Barnes, who worked for Hartwell, was arrested and subsequently pleaded to a substantive count of possession with intent to supply for which he received 6 years imprisonment.[12]The reference at (vi) above to 5 February 2010 relates to a raid by the police on premises in Stockport at which Houldsworth and Hartwell were arrested. 917 bags containing just over one kilogram of cannabis were found together with about 200 grams of cocaine, £5000 cash, scales, and distribution bags. Houldsworth pleaded guilty to a substantive count in relation to this, receiving full credit. A sentence of 8 years imposed by the judge was subsequently reduced to one of 6 years by this court, giving full credit for an early guilty plea.[13]Hartwell’s arrest on 5 February 2010 brought to an end his drug activities. He remained in custody until this court granted him bail pending appeal on 15 December 2015.[14]When Hartwell’s counsel mitigated he made a number of points in seeking to place himself lower down the hierarchy than the Crown suggested. He had not been involved in the importations: the Crown had not suggested he had been. He was not present at key meetings of other organisers. He was not linked to the cutting factories: the Crown had not suggested he was. The tick-lists showing drug supply recovered from other individuals but relating to Hartwell only disclosed the value of drugs in one case. That was at a level indicating supply of a relatively modest quantity of drugs. He was said to be a “medium level supplier of class A drugs”, not supplying multi-kilo amounts. His position in the conspiracy should be seen as somewhere below the level of Dutton’s principal lieutenants and organisers into which the Crown had placed him.[15]Hartwell’s counsel, Mr Warne, identified others who were not to be sentenced but who were to be tried in the following year as amongst those closest to Dutton.[16]He said:
“Mr Hartwell’s position…is when one looks fairly at the evidence he is somewhere below tier two but it may be difficult to see exactly [where] he fits below that bracket if it is right that those others who I have mentioned can properly be viewed as trusted lieutenants…He accepts that he had an interest in some of the drugs that were being imported, as he himself was a medium level supplier of class A drugs, not multi-kilo amounts but amounts that were consistent with what was found at the Buxton Road address where he was arrested with Houldsworth.”
That is a reference to the events of 5 February 2010. A little later Mr Warne continued:
“I would respectfully suggest that in terms of where Hartwell should sit and the relevant sentence therefore, that Your Honour might well feel able to pass today or tomorrow, the Buxton Road address is an indication of what he was involved in at the time and the level of his involvement.”
He concluded by saying:
“…Mr Hartwell accepts his role as I have outlined this morning and his concern is that he is not aligned with those who have a connection to the actual importation itself. His role, as outlined this morning, is that he was clearly involved in the supply of significant quantities of drugs.”
[17]It was after that mitigation that the judge indicated that Hartwell was in an organisational role at the level advanced by the Crown and gave Hartwell the opportunity to await the outcome of the further trial. When the judge passed sentence the following day he said that he was “satisfied that Hartwell was a trusted lieutenant playing an organisational role in the conspiracy.”[18]Hartwell initially appealed against his sentence and subsequently, having instructed new counsel, sought leave out of time to appeal against his conviction. The sentence appeal came before this court in December 2012. Hartwell’s grounds were rejected. One submission which he made alongside co-accused was that there was disparity with Carter who was later sentenced to 9 years imprisonment after his case had been put off for a Newton hearing. It appears that he was dealt with on the basis that he was a supplier of drugs, but not an importer. In rejecting disparity, the court observed that it was clear that the trial judge had not adopted the prosecution’s submissions as to the roles of each defendant in every case. He had reached his own conclusion on the evidence as to each defendant’s role and culpability. That judgment is Hartwell and others[2012] EWCA Crim 3151.[19]Immediately prior to that hearing, Mr Harding for Hartwell had invited the court to adjourn the appeal against sentence pending the resolution of the application relating to conviction. The court declined to do so but assured Mr Harding that, if matters emerged on the conviction appeal which shed new light on Hartwell’s role, the matter of sentence could be reopened. Two members of this court recently considered those assurances and held that in the light of Yasain [2015] EWCA Crim 1277 this court was functus officio, having dismissed the earlier appeal against sentence. By that stage matters had emerged in relation to the conviction proceedings which shed a different light on Hartwell’s role in the conspiracy. We therefore invited the Criminal Cases Review Commission to consider referring the matter back to this court in relation to sentence on an expedited basis (see Hartwell [2015] EWCA Crim 1977). We record our gratitude to the Commission for its prompt and efficient turnaround of the matter which has enabled both conviction and sentence to be dealt with at this hearing.

The application relating to conviction

[20]Since the sentencing hearing there has been a series of hearings before this court in preparation for the determination of the leave application relating to conviction. Those hearings have focused on the accuracy of the Crown’s assertions as to Hartwell’s place in the hierarchy of the conspiracy, and in particular have involved issues of public interest immunity and disclosure. The process has been a lengthy one and included the instruction of special counsel. Concessions have been made by the Crown that it can no longer rely on some of the assertions put forward at the time of sentencing. The Crown concedes that those concessions lead to the conclusion that Hartwell should not have been sentenced at the significant organisational level at which he was, and that he properly falls lower down the hierarchy.[21]On behalf of Hartwell it is contended that matters go further than that, and that notwithstanding Hartwell’s guilty plea to the conspiracy, his conviction should not be sustained. The applicant relies not only on the concessions made, but other matters dealt with below.[22]As to the concessions made in relation to matters set out above in the Crown’s opening note (see paragraph (9) above):(a) The Crown no longer contends that the man to whom Dutton was overheard speaking on 17 July 2009 was Hartwell. The effect of this is to eliminate any evidence of direct contact between Dutton and Hartwell.(b) The Crown no longer asserts that the events of 3 November 2009, and Hartwell’s involvement with them, were part of the conspiracy to supply drugs contained in count 1 of the indictment.(c) Having made the concession in relation to 3 November 2009 the Crown takes the view that it is logically inconsistent to include the events of 5 February 2010 in the conspiracy and accepts that they should be considered to fall outside it.(d) The Crown does not rely on contacts with Aaron Coghlan on 17 July 2009 and 3 November 2009 which had previously been relied on as evidence of Hartwell’s involvement in the conspiracy. In 2011 the mooted second trial of Coghlan and others did not take place: notwithstanding an earlier unsuccessful dismissal application by Coghlan, the Crown concluded that it had insufficient evidence to pursue the case.(e) The Crown conceded that the overall submission made to the judge that Hartwell had played an organisational role in the conspiracy as a high level lieutenant could not be maintained.[23]For Hartwell Mr Max Hill QC submits that his conviction is unsafe on the following grounds: i) The plea to the conspiracy count was equivocal. ii) The basis of plea advanced in mitigation in fact afforded a defence to the conspiracy. iii) The failures of disclosure demonstrated by the concessions made by the Crown showed that there was never a sustainable case against Hartwell in respect of the conspiracy count so that he should never have been charged with that offence. iv) The Crown was well aware at the time of Hartwell’s plea and sentence that no proper evidential basis existed on which to allege the involvement of Hartwell in a conspiracy founded on the actions of Dutton and the importation of cocaine from Spain. Consequently the prosecution, conviction and sentence of Hartwell for the conspiracy amounted to an abuse of process.[24]A specific disclosure issue raised relates to a briefing pack prepared for officers intending to interview Hartwell concerning the conspiracy in April 2010. The document contained information and evidence which would enable the officers to question Hartwell. The document was not disclosed to Hartwell prior to his plea. It had not been seen by prosecuting counsel by then. It was disclosed in proceedings against Coghlan and others on 6 May 2011 following a PII hearing. It was disclosed to Hartwell in July 2011. Reliance is placed on the non-disclosure of this document to Hartwell before he was sentenced. It asserted that the importation network was headed by Dutton and that Carter was the person responsible for organising the UK distribution of those drugs. Hartwell is described as one of Carter’s principal customers. The briefing referred to the arrest of Hartwell and Houldsworth on 5 February 2010 and referred to Barnes’ arrest after a kilogram of cocaine was recovered on 3 November 2009. It states that:
“The evidence illustrates that Hartwell was the main organiser and distributor of this drug network and Barnes and Houldsworth were both his runners entrusted to collect and deliver drugs lower down the chain. Barnes and Houldsworth are both significant players within the drug dealing fraternity and are several levels above street dealers. Intelligence would indicate that Hartwell had various others who fulfilled lower roles but these do not form part of this evidential package. The evidence shows that Hartwell is directly linked to persons who were running a sophisticated importation operation therefore getting high grade cocaine at a multi-kilo level…It also illustrates his links to other drug networks, sourcing drugs from Liverpool when police activity prevents him from obtaining from his usual supply…”
[25]Mr Hill argued that the failure to disclose this document before sentence was significant. He said that the document was inconsistent with the Crown’s assertions as to Hartwell’s complicity in the conspiracy. In particular he relied on the reference to Hartwell being described as one of Carter’s principal customers as meaning that he was a supplier in a drug chain who was no more than a purchaser from Carter. He should not be regarded as a conspirator related to the importation of drugs. Whilst it was accepted that he was a retail purchaser and then supplier of drugs in some quantity, this briefing note showed that he should not have been included in the conspiracy. Had it been disclosed in time Hartwell could have relied on it.[26]A further area of material non-disclosure relied on related to a document disclosed in May 2011 in Coghlan-related proceedings, and then in July 2011 to Hartwell. That document recites:
“The prosecution has credible information, the source and/or nature of which is sensitive, that Elliot Hartwell and Matthew Barnes were jointly involved in the unlawful supply of cocaine and cannabis for a period beginning at least two years prior to the commencement of the indictment period, and continuing during the indictment period.”
Reliance is placed on this as material potentially helpful to Hartwell which should have been disclosed in that it might have enabled him to argue that his drug supply activities were not related to the four cocaine importations from Spain.[27]During the course of the hearing, and thanks to the intervention of Mr Hegarty QC, special counsel, the court ordered disclosure of an MG3 charging decision document created sometime between 14 April 2010 (when Hartwell was first interviewed about the conspiracy) and 13 May 2010 (when he was charged with the conspiracy). The document reveals that the CPS solicitor considering the threshold test took the view that the conspiracy alleged should relate to dates between June 2009 and 4 February 2010. Mr Hill placed significance on that latter date because it would indicate that the events of 5 February 2010 were not at that stage contemplated as falling within the conspiracy. That information he contended, would have been of material value to Hartwell.[28]Much was made of the concessions made by the Crown that the events of 3 November 2009 and 5 February 2010 should now be regarded as outside the scope of the conspiracy, contrary to the way in which the case had been advanced at the time of sentence. Particular emphasis was placed on the events of 5 February 2010 where the MG3 document was relied on as demonstrating that the Crown had always recognised that it did not fall within the conspiracy and that the Crown had chosen knowingly to advance the case on a false basis. In addition, it was argued that the inclusion of the events of 3 November 2009 had been motivated so as to use Hartwell’s role in them to establish a link in the conspiracy between Dutton and Coghlan, there being evidence of contacts between Hartwell and Coghlan in July 2009 and on 3 November 2009. This, it was said, represented a manipulation of the process by the prosecution for the sole purpose of implicating Coghlan.[29]Once the events of 3 November 2009 and 5 February 2010 are removed from the conspiracy by reason of the Crown’s concessions, there was nothing left to justify the conspiracy particularly in the light of the further concession that the asserted telephone contact of 17 July 2009 between Dutton and Hartwell had not taken place. This was said to be a highly significant concession. It removed any direct link between Hartwell and Dutton, and thus the importations, and meant that Hartwell should be viewed not as a conspirator of the sort alleged, but merely as an onward supplier of drugs purchased from Carter. In this respect too Mr Hill called into question the good faith of the prosecution, asserting that it must have known at the time of Hartwell’s sentencing that the evidence was incapable of establishing that link. Accordingly, Mr Hill submitted that if those concessions were made all that was left was some general evidence of contact with Carter and others in the summer of 2009 which was wholly insufficient to constitute a conspiracy charge. Had the true position been known, a conspiracy charge could not have been sustained and Hartwell had been put in the position of having pleaded guilty to an offence of which he could not have been guilty. He thus had a defence to the charge which was not appreciated by his counsel or the judge at the time.[30]In addition, the Crown had acknowledged that the references it had made to Aaron Coghlan in opening concerning contacts with Hartwell in July 2009 and on 3 November 2009 could no longer be sustained in the light of Coghlan’s subsequent acquittal and the concession made as to 3 November 2009. It was further suggested that there had been some impropriety in that there had been no reference to Coghlan in the Crown’s opening note whereas those references to him were made in counsel’s oral opening to the judge. This was cited as a further example of bad faith on the part of the Crown which tainted the proceedings. Mr Hill made his suggestions of bad faith without forensic extravagance, but clearly left it open to the court to conclude, on the basis of the materials to which he had drawn attention, that the Crown had presented a case against Hartwell which it knew was false. If so, that would have amounted to an abuse of process and would entitle the court to say that the conviction for conspiracy could not be sustained as the Crown would have been guilty of unconscionable conduct. He put the case on an alternative basis which was that the Crown had presented a case against Hartwell which was in fact false and which in fact did not reveal a conspiracy so that the plea tendered should be regarded as equivocal. Either route he said would lead to a quashing of the conviction. He faintly suggested a third possible route which would be to regard the disclosures and concessions as constituting fresh evidence under section 23 of the Criminal Appeal Act which rendered the conviction unsafe. We do not regard this further route as adding anything material.[31]Mr Ainsworth, who has represented the Crown throughout, resists these submissions. He disputes that the plea entered was equivocal and underlines that, contrary to the Crown’s submissions that sentence should be postponed pending resolution of the trial concerning others, Hartwell had wished to proceed to sentence. The Crown observes that his insistence on being sentenced in circumstances where he had advance notice of the way the Crown put the case against him, including his role in the hierarchy, and where the judge after mitigation had given an opportunity for sentencing to be adjourned, is inconsistent with his application.[32]There had not been grave failings of disclosure as alleged, still less attempts to disguise the truth. There clearly was a sustainable case against the applicant; that was why he had pleaded guilty and why admissions were made on his behalf in mitigation. The allegation that the Crown was aware that there was no proper evidential basis for alleging Hartwell’s involvement in the conspiracy at the time of plea and sentence was strongly refuted. The Crown had set out in detail why it asserted Hartwell was involved in the conspiracy. By his plea and mitigation Hartwell had not disputed that. He had merely sought to argue from the available evidence that the judge should assign him a lesser role in the hierarchy than that contended for by the Crown.[33]The concessions which had been made post-sentence do not change the overall assessment that Hartwell was involved in supplying drugs that had been sourced and made available through the conspiracy. Whilst the evidence of direct personal contact with Dutton has disappeared, there was an irrefutable connection with Carter and a clear acceptance in mitigation that he was due to receive cocaine imported within the conspiracy for onward supply. It could not sensibly be advanced that Hartwell had no involvement in the conspiracy to supply cocaine. That had always been the allegation against him and it was expressly accepted in mitigation. The fact that the events of 3 November 2009 and 5 February 2010 were no longer relied on did not mean that the conspiracy no longer existed.[34]As to the non-disclosure of the briefing document, it was not accepted it revealed a wholly different picture as to Hartwell’s involvement. Moreover, its essence had been disclosed by way of the questions put in interview which formed part of the case papers. As to the non-disclosure of the information in the document of 5 May 2011 and the MG3 document, Mr Ainsworth submitted that there was no material non-disclosure.[35]True it was that the process which had taken place before this court in preparation for this application had resulted in concessions being made in relation to the case advanced against Hartwell at trial. It had to be borne in mind that during the process up to sentence Hartwell had indicated no demur to the factual basis for sentence advanced in the Crown’s opening note. When subsequently issues were raised, there had been an appropriate process of investigation and concession relating to matters which had not previously been put in dispute. It was accepted that the case as opened to the judge had, with hindsight, been put too high in relation to Mr Hartwell. This had not been done knowingly, and indeed it was the Crown which had twice invited the judge to consider postponing sentence until after the trial of Coghlan. The correct focus now should be on the events in the period between June and September 2009. They revealed ample evidence to implicate Hartwell in the conspiracy and the conviction should be sustained, albeit that it was acknowledged that Hartwell’s role should be reassessed as lower down the hierarchy.

Discussion on conviction

[36]We begin by considering the elements of non-disclosure. We are unpersuaded that there was any material non-disclosure in relation to the interview briefing document. That document only fell to be disclosed if it had the potential to undermine the prosecution case or assist the defence case. Although the document itself had not been disclosed, the essential information contained within it had been specifically put to Hartwell in interview and those interviews formed part of the case papers which were served prior to plea. Insofar as Mr Hill put emphasis on the statement in the briefing document that Hartwell was Carter’s principal customer, that had been expressly put as the interview transcript shows. Hartwell had thus been made aware of that assertion by the police and so there had been no material failure of disclosure.[37]One of Mr Hill’s themes was to suggest that if Hartwell was Carter’s customer, then notwithstanding the fact that he was admittedly distributing significant quantities of the imported drugs through his own network, he should not properly be regarded as part of a conspiracy. It seemed to us that Mr Hill overstated the argument in urging that the purchaser at street-level would not be regarded as part of the conspiracy because he had no interest in the source of the drugs. Hartwell is not to be equated to such a person. On any view he was operating at a considerably higher level in the chain. The charge against him did not involve an importation conspiracy; it involved a conspiracy to supply drugs in this country. The essence of the conspiracy was that there was an agreement to supply drugs which had in fact been imported. The criminal conspiracy in relation to supply encompassed the importation of the drugs, their cutting and storage, and their distribution. It was not the Crown’s case that Hartwell was involved in the activity of importation or the cutting of the drugs; his role was as a significant distributor. The fact that Carter’s role appears to have been as the initial disposer of the drugs on behalf of Dutton after importation does not of itself mean that Hartwell falls outside the overall conspiracy. Accordingly, the reference to Hartwell as Carter’s principal customer would not have provided him with a defence, and in any event the relevant material contained in the briefing note had been disclosed through the process of interview. This aspect of the matter does not avail Hartwell.[38]As to the information disclosed to Coghlan in May 2011, that does not advance Hartwell’s case. The then disclosed fact that the police were aware from information that Hartwell and Houldsworth had been involved in drug distribution for a period of at least two years prior to the start of the indictment period did no more than tell Hartwell what he already knew if that information was correct. In truth all that the document provides by way of new information is that the police were aware of what Hartwell had been doing. If Hartwell had wished to contend that he was not guilty of the conspiracy charged because the Crown’s evidence related to other drug dealing activity on his part, he could have raised that issue prior to plea and sentence.[39]We have seen the documents resulting from a waiver of legal privilege showing many consultations between Hartwell and his legal team prior to the time of his sentencing. It is perfectly clear from those documents that Hartwell’s then counsel explored with him the possibility of a defence based on other drug dealing activity outwith the alleged conspiracy. It is very clear that Hartwell was unwilling to provide any detailed instructions and that he did not wish to challenge the evidence put forward by the Crown. What he wanted to do was to plead guilty at as early a stage as possible and receive maximum credit. He did not wish to give any instructions that might challenge the facts advanced by the Crown or run the risk of referring to the activities of any of his co-conspirators. In essence, his instructions were that he wished to plead guilty as charged and that he wanted his counsel to mitigate on the Crown’s evidence as presented. That would involve counsel seeking to persuade the judge to assign a lesser place in the hierarchy for Hartwell than contended for by the Crown. That exercise would involve submissions by counsel as to the appropriate inferences to be drawn from the evidence presented by the Crown. There was no suggestion by Hartwell’s counsel that any of the matters laid against Hartwell as part of the conspiracy represented non-conspiracy drug dealing. This includes the events of 3 November 2009 and 5 February 2010. Indeed in relation to the events of 5 February 2010, counsel made positive use of them suggesting that the level of cocaine recovered on that occasion, (about 200 grams), was a useful benchmark in enabling the judge to conclude that Hartwell was not distributing multiple kilograms of cocaine but was a medium level class A drug dealer. There was no failure of disclosure in this respect.[40]We turn next to the MG3 charge decision document which we ordered to be disclosed during the hearing. The fact that in making a threshold charging decision the CPS solicitor was minded to put the end date of the conspiracy at 4 February 2010, thus not including the events of 5 February, does not have the significance attached to it by Mr Hill. Firstly, when the charge was in fact preferred against Hartwell the end date of the conspiracy was put at 14 April 2014, thus including 5 February. Secondly, the MG3 document itself shows that the solicitor in his decision referred to the possibility of including the events of 5 February in the wider conspiracy when the full code test was applied. Clearly then, there was no recognition that those events could not be part of the wider conspiracy.[41]Two further factors are relevant. This document was clearly an evaluation at an early stage of the process and expressly referred to taking account of further evidence which was likely to become available to satisfy the full code test. Secondly, by the time this document was created there was already in being an indictment at Manchester Crown Court charging Hartwell and Houldsworth with substantive offences arising from the events of 5 February 2010. The advising solicitor at this stage clearly had that in mind. Matters, however, were to develop shortly afterwards with the transfer of that Manchester indictment to Liverpool Crown Court, whereupon the substantive charge concerning cocaine was subsumed into the conspiracy count and the substantive charge relating to possession of cannabis with intent to supply on 5 February became count 3 on the Liverpool Crown Court indictment.[42]In our judgment, far from assisting the defence, this document tends to rebut the suggestion that there was something sinister and improperly manufactured about the inclusion of the events of February in the conspiracy count. There is certainly nothing which could begin to demonstrate bad faith in this respect. In another respect the document rebuts the assertions of bad faith in relation to the events of 3 November 2009 which the Crown now concedes should not form part of the conspiracy. It will be recalled that Mr Hill’s submission was that these events had been included in the indictment so as to provide a link between Dutton and Coghlan. This document reveals that the considerations underlying the inclusion of those events in the conspiracy were wholly unrelated to Coghlan. This event was included in the conspiracy charge because there was evidence demonstrating that the co-conspirators Anthony Carter and Mark Smith who were implicated in the consignments which had come from Spain were involved in the events of 3 November.[43]A further aspect of the case which Mr Hill submitted amounted to non-disclosure and evidence of bad faith relates to the concession made that it could not be shown that Hartwell had been involved with a phone conversation with Dutton on 17 July 2009 around the period of the first importation. The Crown had opened this matter against Hartwell. This was based upon surveillance of Dutton on that date where he was seen making a call to someone referred to as “El” or “Mel” whom the Crown asserted must have been Hartwell. During dismissal proceedings held early in 2011 for the purposes of Coghlan’s trial, it emerged that the observed conversation could not have taken place with Hartwell. The Crown had never had Dutton’s mobile phone data at any stage. He apparently had no less than 13 phones. The Crown did have data relating to two phones owned by Hartwell, and we accept that a disc containing Hartwell’s phone data had been served on the defence as part of the case papers and prior to sentence. We prefer Mr Ainsworth’s recollection in this respect to the acknowledgedly hazy recollection of Hartwell’s then counsel to the contrary, because, as Mr Ainsworth points out, until Hartwell and others pleaded guilty there had been due to be a trial of the conspiracy indictment starting in mid-October 2010. The telephone evidence would have had to have been served for that purpose. There was observation evidence relating to Hartwell at about the material time. It showed him using his mobile phone within five minutes or so of the timing of the call made by Dutton. However Hartwell had driven off before the precise time at which Dutton had made his call so that he was no longer under observation.[44]It appears that nobody on either side prior to sentence examined the precise detail of Hartwell’s mobile phone billing. No issue had been raised by the defence in relation to this call and so Mr Ainsworth for the Crown had had no reason to check further. At the Coghlan dismissal hearing, however, Hartwell’s billing was examined in detail and it became apparent that he had not been in communication with Dutton at the time of the phone call relied on. The Crown therefore conceded that it could not make the point. Mr Ainsworth frankly concedes a failure to appreciate that the evidence contradicted his assertion about the Dutton call until after Hartwell had been sentenced. He said this was an inadvertent error on his part and points out that the defence had the data available which would have enabled them to show the error if they had made the necessary investigation. Whilst we shall have to consider the significance of this concession later, we are satisfied that the matter arose through inadvertence rather than bad faith, and that a timely concession was made once the error had become apparent.[45]A further matter relied on in the context of bad faith was the fact that in opening Mr Ainsworth departed from his opening note to make reference to two contacts between Hartwell and Coghlan, one of them on 3 November 2009. That detail did not feature in the opening note. We do not consider that bad faith is demonstrated. As we have already stated, other assertions made as to the motivation for inclusion of the events of 3 November are rebutted by the MG3 document for the reasons explained above. When counsel opened the case to the sentencing judge he said at the outset that out of fairness to the defendants before the court he should point out that the court would not be presented with what the Crown believed to be the full picture. There were six further defendants awaiting trial in 2011 in relation to this conspiracy. Amongst them was Mr Coghlan. The two references to Coghlan which were relatively limited concerned the history of events involving Hartwell and other conspirators and were part of the overall picture. We do not see anything sinister in this.[46]In addition to the matters dealt with above as suggesting prosecutorial bad faith, Mr Hill placed reliance on the fact that concessions had come at a relatively late stage of the pre-appeal hearings in relation to 3 November 2009 and 5 February 2010. The process has involved a lengthy and painstaking review and inquiry into extremely substantial materials generated by the investigations into the conspiracy, including the hearings and related matters pertaining to the trial of Coghlan and others which resulted in no evidence being offered. The result of that proposed trial has had some bearing on the view to be taken of the Hartwell proceedings. Matters which emerged in those proceedings were disclosed in a timely fashion shortly after the conclusion of those proceedings in 2011. Thereafter a wider process took place in the light of the application for leave to appeal against conviction first lodged in 2012. That wider process came to involve the instruction of two leading counsel as special counsel as a result of an order of this court at an earlier hearing. The involvement of special counsel has undoubtedly prolonged these proceedings, but we acknowledge that they have left no stone unturned and that they have undertaken their responsibilities assiduously.[47]Initially in relation to the events of 3 November 2009, whilst the Crown had conceded it had insufficient evidence to implicate Coghlan in them as long ago as 2011, it still sought to maintain them as part of the overall conspiracy against Hartwell. There was a justification for doing this as there was rather more evidence implicating Hartwell then there had been evidence against Coghlan. However, after consideration of the issue by special counsel, the Crown made the decision to concede the point. The Crown’s case had always been put on the basis that the events of 3 November and 5 February represented a continuation of the conspiracy with drugs coming from a different source once the Spanish importations had been compromised. As a matter of logic once a concession was made in relation to 3 November, the Crown recognised that the events of 5 February 2010 which were more remote in time could no longer logically be put forward as representing part of the conspiracy, notwithstanding the admission and positive use made of the events of that date at the sentencing hearing by Hartwell’s counsel. Although the process has been an extremely lengthy one about which this court has previously expressed concern, we do not consider that the relatively late concessions signify impropriety or bad faith. Rather, they represent an understandable reluctance by the Crown to concede matters which had not been challenged below until there was a sound basis for making a concession.[48]As is apparent therefore the assertions of bad faith and thus an abuse of the court’s process do not succeed.[49]The principal authority to which we were referred in argument concerning an appeal against conviction after a guilty plea, where issues of non-disclosure and abuse of process arise, is R v Asiedu [2015] 2 Cr App R 8. Both parties made submissions, Mr Hill’s being largely predicated on the absence now of any sustainable basis for the conspiracy count combined with abuse of process by the Crown. At paragraphs 19 to 21 the court recognised that ordinarily an admission of the facts constituting an offence by an unambiguous and deliberately intended plea of guilty will preclude an appeal against conviction. The court, however, went on to recognise that, leaving aside equivocal or unintended pleas, there were two situations in which a plea of guilty would not bar the quashing of a conviction on appeal after a plea of guilty. The second of those two situations is relevant here; namely one where there should have been no trial at all because of the unconscionable conduct of the prosecution which would render any trial offensive to justice. We need not recite the well understood chain of authorities supporting this proposition. It is clear however that the type of misconduct necessary to constitute an abuse of this sort is of a high order. Our conclusions above clearly show that there is no foundation for any such allegation of abuse in this case. Insofar as Mr Hill invited the court to form conclusions to the contrary we decline to do so.[50]We consider that paragraph 32 of Asiedu contains a passage of particular importance:
“Because it is of cardinal importance that a defendant makes up his own mind whether to confess by way of plea of guilty or not, and because only he knows the true facts, it is not open to him to assert that he was led to plead guilty by mistaken overstatement of the evidence against him. As Sir Igor Judge P observed in R v H [2002] EWCA Crim 730 at [81], the trial process is not a tactical game. A defendant knows the true facts; he ought not to admit to facts which are not true whatever the evidence against him, and this will always be the advice he is given. If he does admit them, the evidence that they are true then comes from himself, whatever may be the other evidence advanced by the Crown.”
In this context it is perfectly clear to us, not only from the waiver of privilege documents but also from the absence of any submission by Mr Hill to the contrary, that this applicant had an entirely free choice as to the pleas he tendered after ample consideration of his position with his counsel who had properly explored with him the possibility of defending the case on the basis that his activities had not come within the framework of the conspiracy alleged.[51]It is clear from the concessions now made by the Crown that it cannot sustain the whole of the case which it advanced to the judge below. The next task for us is to consider whether, on analysis, there is anything left of the conspiracy alleged, or whether as Mr Hill contends it has evaporated so that there could be nothing left to sustain a guilty plea. It appears to us that this is what Mr Hill meant when he described the plea as equivocal. Certainly the plea as tendered was not equivocal in the sense that it could be described as a “guilty but…” plea.[52]Before turning to our analysis, we would wish to comment on another matter. Mr Hill’s submissions referred to counsel’s mitigation to the judge as representing “an oral basis of plea”. We think that is a mischaracterisation. There was no basis of plea put forward in the sense of raising some factual dispute or qualification of the way the case had been advanced by the Crown. What in fact occurred was a standard mitigation whereby the facts put forward by the Crown in opening were not disputed in any material way, but where counsel properly sought to persuade the judge to draw a different inference as to Hartwell’s position in the hierarchy from that advanced by the Crown. The sentencing in this case preceded the Sentencing Council’s definitive guideline on drugs, but the process adopted below was entirely analogous to that which commonly occurs nowadays where the defence advocate seeks to direct the judge to an assessment of the offender’s role by reference to “leading”, “significant”, and “lesser” roles. In the event, counsel was unsuccessful.[53]An analysis of the evidence of Hartwell’s involvement in the conspiracy after subtraction of the matters conceded shows that the following evidence remains: i) Hartwell was in contact with Carter throughout July 2009 which was a crucial time leading up to and involving the first importation. ii) Hartwell was acknowledged to be a close associate of Carter. iii) During the period of the importations Hartwell can be linked either by direct contact or through telephones not only with Carter but also with Houldsworth, Evans, Hill, Mark Smith and Catherine Mason. The last four of those were admitted co-conspirators. Houldsworth was named on the indictment as such but the Crown accepted a plea from him to a substantive count in relation to 5 February 2010. iv) Hartwell met with Hill on 15 July 2009 shortly before the first importation. v) At that point he was driving a BMW registered to a company of which Carter was a director. vi) On 14 August 2009, the day of delivery of the third consignment to the UK, Carter was in telephone contact twice with Hartwell within an hour or so of the delivery. vii) On that day Carter then met with Dutton, Mark Smith and Andrew Guest at a public house that afternoon. Following that meeting Carter was in telephone contact with Hartwell. viii) On 26 August 2009 as the fourth consignment was on its way Hartwell and Carter met on the very day that Carter had returned from a visit to Spain. ix) On 2 September 2009 shortly after arrival of the fourth consignment, Carter was arrested whereupon Mason who had been present, phoned a series of co-conspirators including Hartwell.[54]That evidence in our judgment enables a clear inference to be drawn as to Hartwell’s involvement in the conspiracy. It demonstrates links to three of the four consignments. It shows Hartwell not only in contact with Carter but also with Hill and Mark Smith. Both were involved at a high level in the conspiracy. Hill was involved with the cutting factory and one of Smith’s roles was as a banker for the group. On arrest almost £300,000 in cash was recovered from his home address. All of this provides cogent evidence of Hartwell’s involvement in the conspiracy centering on the Spanish consignments. It indicates a level of involvement significantly higher than that of some small scale supplier much lower down the chain. Those inferences can be drawn entirely independently of the guilty plea tendered. As already stated, that plea was tendered in an entirely unqualified way. The mitigation put forward acknowledged that although Hartwell was not personally involved in the arrangements for importation, he had an interest in some of the imported drugs. This was a significant admission of involvement in the conspiracy and entirely consistent with the evidence referred to above. This, taken together with the acknowledgement of involvement in the supply of significant quantities of those drugs, albeit not involved in their actual importation, is amply sufficient to maintain the basis of the conspiracy plea.[55]The additional elements, now the subject of concessions, do not make the conspiracy disappear. They represent a mistaken overstatement of the evidence in the sense of paragraph 32 of Asiedu. The absence of those elements does not extinguish the conspiracy.[56]For the forgoing reasons, whilst we are prepared to grant the necessary extension of time, we decline to give leave in relation to the conviction application and dismiss it.

The CCRC reference as to sentence

[57]It is rightly accepted by the Crown that the concessions which have been made must mean that on a fair reappraisal, Hartwell’s role as a principal lieutenant in the conspiracy should be reassessed. We view the disappearance of evidence of a direct link with Dutton as significant. However, the fact remains that, even if not in the first tier down from Dutton, Hartwell was connected to a number of figures at that level and on any view was operating as a high level distributor of a significant part of the proceeds of the importations. We consider that after a trial a term of 15 years would have been appropriate rather than the 22 years the judge had in mind. With full credit for a guilty plea that would produce a sentence of 10 years which we consider fairly reflects Hartwell’s involvement in the conspiracy as it stands after concessions.[58]Since we have sustained the conviction on the conspiracy count we do not need to consider section 3A of the Criminal Appeal Act. The fact remains, however, that by reason of the concessions made, the events of 5 February 2010 which involved possession with intent to supply of a significant quantity of cocaine fall out of the picture as part of the sentencing exercise performed by this court. There was strong evidence against Hartwell on that count and the mitigation advanced before the judge amounts to the clearest admission of guilt in that respect. Mr Hill has not argued to the contrary. After inquiry by this court it appears that count 1 on the Manchester indictment which had charged a substantive offence of possession with intent to supply was treated as subsumed into the conspiracy count preferred at Liverpool. However, no step was taken to quash that count or that indictment; (indeed Houldsworth pleaded guilty to that count and was sentenced to 6 years including full credit for a guilty plea after reconsideration by this court).[59]Accordingly, in theory it would be open to the Crown to seek to resurrect that count before the Crown Court, subject of course to arguments to the contrary which the defence might wish to pursue before that court. In the end it will, of course, be a matter for the Crown to decide how to proceed. However, we observe that by the time of his release on bail by this court in December 2015 Hartwell had served the equivalent of about 11 years 9 months, taking into account time spent on remand prior to sentence. We have no doubt that one of the factors that the Crown will consider in deciding how to proceed will be the fact that Hartwell has served time over and above what is now the appropriate sentence for the conspiracy relating to the Spanish consignments. It might be thought that the additional time spent in custody is broadly sufficient to render fresh proceedings unnecessary, but we emphasise that the decision is for the Crown.

Conclusion

[60]The application for leave to appeal against conviction is dismissed. The reference of the sentence of 14 years 8 months in relation to the conspiracy by the Criminal Cases Review Commission is accepted. That sentence on count 1 of the Liverpool indictment is reduced to one of 10 years to include the 291 days served on remand pursuant to section 240 of the 2003 Act.[61]This has been a lengthy and complex series of hearings culminating in the final hearing. We express our gratitude to the legal teams on both sides and to special counsel for their cooperative and efficient presentation of their cases.

Addendum

[62]Since the circulation of the draft of this judgment to counsel two further matters have arisen. Firstly, an application for costs has been made on behalf of Hartwell. That application is pursued in two separate ways: i) There is an application for an appellant’s costs order to be paid out of central funds in an amount to be assessed pursuant to section 16 of the Prosecution of Offences Act 1985. ii) Alternatively, there is an application for an order for costs against the CPS pursuant to section 19 of the Prosecution of Offences Act 1985 on the basis that they have been incurred through the unnecessary or improper act or omission of the Crown.[63]We have considered detailed written submissions from both parties and the decision in R v Evans (Eric) (No 2) [2015] 1 WLR 3595.[64]The second matter is simply to record the Crown’s position relating to the events of 5 February 2010 in the light of the observations at [58] and [59] above. The Crown has indicated a settled decision not to proceed against Hartwell on the outstanding count on the Manchester indictment relating to 5 February 2010.[65]We return, therefore, to the question of costs. As the application for leave to appeal against conviction has been unsuccessful, there is no power in this court to make a defendant’s costs order out of central funds in that respect. We did, however, allow the appeal against sentence, so that section 16(4)(c) empowers the court to make a defendant’s costs order in favour of Hartwell. Since the date of the successful appeal is after 1 October 2012, the provisions of section 16A apply, and any defendant’s costs order under section 16 may not include an amount in respect of the accused’s legal costs. See also paragraph 2.4.4 of the Practice Direction (Costs in Criminal Proceedings) 2015 EWCA Crim 1568.[66]Accordingly, any order for costs from central funds must exclude legal costs and could only relate to other expenses properly incurred by Hartwell in the proceedings insofar as they relate to the sentence appeal. We consider that any such costs, properly incurred, should be payable out of central funds. We so order. We further order that within 14 days, Hartwell submits to the Registrar a schedule of any such costs for his consideration in the usual way.[67]That leaves Hartwell’s alternative application for an order against the CPS pursuant to section 19 of the Act which requires the court to be satisfied that a party has incurred costs as a result of an unnecessary or improper act or omission by another party to the proceedings. The statutory provision is amplified by paragraph 4.1.1 of the Practice Direction which includes the following passage:
“The court may find it helpful to adopt a three stage approach (a) Has there been an unnecessary or improper, act or omission? (b) As a result have any costs been incurred by another party? (c) If the answers to (a) and (b) are “yes”, should the court exercise its discretion to order the party responsible to meet the whole or any part of the relevant costs, and if so what specific sum is involved?”
[68]In this context we have borne in mind the summary of principles set out by Hickinbotton J in Evans at [148]. The court must take a broad view of whether the acts of the relevant party were unnecessary or improper. The process is essentially a summary one. The expectation is that applications will be very rare and that they will generally be restricted to those exceptional cases where the prosecution has acted in bad faith or made a clear or stark error as a result of which a defendant has occurred costs for which it is appropriate to compensate him. The court will be slow to find that such an error has occurred.[69]As the terms of the judgment above show, this court has rejected the assertions of bad faith and/or improper prosecutorial manipulation in the conduct of this case. There is nothing in our judgment in the circumstances of this case which could enable us to be satisfied that the CPS has been responsible for an unnecessary or improper act or omission. It seems to us that potentially the strongest point to be made on behalf of Hartwell relates to the concession that it could not be shown that he had been involved in a phone conversation with Dutton on 17 July 2009, as discussed at [43] and [44] above. We do not think that Mr Ainsworth’s inadvertent error in that respect comes near to satisfying the necessary test. Moreover, we note that the relevant information, once it had emerged in the Coghlan proceedings, was disclosed to those representing Hartwell promptly, and about 18 months prior to the original sentencing hearing at which point no particular reliance appears to have been placed on the matter. We therefore refuse to make any order against the Crown pursuant to section 19.

Cited in 1 later judgment