AXN v The Queen [2016] EWCA Crim 590

Case No 2014/03882/C1[2016] EWCA Crim 590
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/05/2016
Before
THE LORD CHIEF JUSTICE OF ENGLAND AND WALESLADY JUSTICE HALLETTVice President of the Court of Appeal Criminal DivisionLORD JUSTICE TREACY
Between
AXNApplicantThe QueenRespondent
Caroline Bradley for ApplicantsJohn McGuinness QC for RespondentHearing Hearing date: 10 March 2016
JudgmentLord Thomas of Cwmgiedd CJ:Introduction
[1]It has always been the position at common law that an offender convicted of a crime will receive credit against his sentence for any assistance which has been rendered to the police or other law enforcement authorities (all of whom for convenience we shall refer to as the police). Although Parliament enacted a statutory scheme under s.73-75 of the Serious Organised Crime and Police Act 2005 to govern assistance rendered in certain circumstances, the long established common law position has remained available: see R v P; R v Blackburn [2008] 2 Cr App (S) 5. In fact, as we were told, far greater use is made of the system established under the common law than the statutory scheme.[2]These two applications for leave to appeal were heard together so that the court could consider three issues that have arisen when the police have been asked by an offender to provide confirmation of assistance provided by him to the authorities at his sentencing hearing. The issues were: i) The extent of the obligation of the police to provide confirmation; ii) The course a court should take in the event of a dispute between the police and the offender about the refusal by the police to provide any confirmation or about the information supplied by the police; iii) The circumstances in which a court should grant an adjournment if the request for assistance from the police was raised at a late stage. I THE APPLICABLE PRINCIPLES RELATING TO TEXTS (1). The development of the principles[3]It has long been a principle of the administration of criminal justice that the prosecution must disclose any material relevant to the sentence of an offender. The current position is set out in the Attorney General’s Guidelines on Disclosure as issued in December 2013 at paragraph 71: “In all cases the prosecutor must consider disclosing in the interests of justice any material which is relevant to sentence (e.g information that may mitigate the seriousness of the offence or assist the accused to lay blame in part upon a co-accused or another person).[4]However, in some cases for obvious reasons of confidentiality and security, the fact that an offender is an informant or otherwise has assisted the police or the detailed extent of that assistance is not known to the prosecution team or is known by them subject to strict conditions of confidentiality. For that reason, a system has been developed to provide the information in a confidential manner to the court.[5]As Lord Lane CJ observed in R v Sivan (1988) 87 Cr App R 407 at 411:
“It is an area of law fraught with difficulties, as anyone who has practised in this field at the Bar or who has had to decide this type of case, either at trial or on appeal, will know all too well.”
Lord Lane then highlighted three issues – the difficulty of ascertaining the true facts, the desire of the offender for confidentiality and the extent of credit to be given. At the request of counsel representing the Crown, he then set out suggestions based on the practice on the Northern Circuit. A letter should be provided from a senior officer of police (or other authority). That officer must be unconnected with the case where assistance was to be given, must have examined the facts and be able to certify the facts as reported by the officers conducting the investigation. The officer in charge of the investigation should set out the facts as certified and should be available to give evidence if necessary, either in court or in chambers. In each case the procedure should be tailored to the circumstances.[6]Over the following years, a procedure was developed where information, if provided by the police, was provided by way of confidential letter known as a “text” signed by a senior police officer. Many of the principles became well settled. In R v X [1999] 2 Cr App R 125 in an appeal where the court declined to investigate a dispute between the offender and the police as to the extent of the information provided and the value of it, Hughes J (as he then was) set out the applicable principles. In summary these are: i) The information is supplied by the police at the request of the offender; ii) Without confirmation by the police, an offender’s statement that he has provided assistance is unlikely to be of assistance; iii) As the courts rely so heavily on police confirmation, the greatest care has to be exercised by the police in the provision of the information; iv) Absent issues of Public Interest Immunity, the text should be shown to counsel for the defence who can discuss it with the offender; v) There should normally be no question of evidence being given or an issue tried about it. If the offender disagreed, then questioning of the police officer would almost inevitably be contrary to the public interest.[7]In accordance with these principles, the police currently follow the following practice. The text will set out: i) The offender’s status and whether he is a Covert Human Intelligence Source (CHIS) under the Regulation of Investigative Powers Act 2000. ii) The details of the assistance provided, the information or intelligence provided and whether he is willing to be a witness. iii) The effort to which the offender had gone to obtain the information. iv) Any risk to the offender or his family. v) An assessment of the benefit derived by the police, including any arrests or convictions or any property recovered. vi) Any financial reward the offender has already received for the assistance provided. vii) A statement as to whether the offender will be of future use to the police.[8]It is in the light of those well-established principles that we turn to consider the three issues. (2).

(a) The decision in R v Piggott (1994)

[9]Although these principles are clear, concern has arisen as to the obligation of the police and other law enforcement authorities to provide information when requested to do so by the offender. The only case which has considered this issue is R v Piggott (transcript, 2 December 1994).[10]In that case the court was concerned with an appeal where the offender had pleaded guilty to two offences of robbery and sought to rely on information he had provided to the police. At a hearing before the sentencing judge on 4 November 1993, the police provided the court with a text. At a further hearing on 24 November 1993, defence counsel indicated that there was further relevant material not set out in the text. Prosecuting counsel said he did not know if there was any more information. The judge adjourned sentence for 14 days to enable the defence to put matters before the prosecution. When the case was listed for sentence, there was no new material and the judge proceeded to sentence. The offender appealed and was granted leave on the basis that he had provided material to the court which, if confirmed by the police, would be relevant to sentence. The court directed that the prosecution attend on the appeal and that it should put itself in a position where it could confirm or not confirm the material put forward by the offender. When the appeal was brought on for hearing, no more information had been provided; after argument, the court directed that any relevant information be provided. When the court next sat for the hearing of the appeal, information was provided that broadly confirmed the matters that the offender had sought to have confirmed before the trial judge. The court was critical of the position taken by the police. It observed:
“More important the sentencing judge was not made aware of matters of potential relevance to his sentencing decision when the interests of justice required that he should have been given the information now available to this court. The position facing police officers in the present context is never straight forward and requires careful judgment. However, we reject any suggestion that the decision whether to provide a text or not is simply a matter for the discretion of the police. In principle, if a defendant seeks to put material before the court by way of mitigation, which the court will not begin to consider unless confirmed in writing by the prosecution authority, then accurate information in the appropriate form confirming or refuting, in whole or in part, the assertions made by or on behalf of the defendant should be made available to the sentencing court by the prosecution.”
[11]Since that decision the police have taken the view that they are under an obligation to make a formal response to requests made by the offender through the court.[12]Three situations in the context of these applications arose: i) Where the police declined to engage. ii) Where the police engaged, saw the offender, but did no more. iii) Where having engaged and carried out intelligence checks and made an assessment, the police concluded the assistance was of no value. (b). The position where the police decline to engage with the request or after engagement do not provide any information[13]It was submitted by the Crown that the police were not under any duty to engage with the offender; nor, if the police did engage, were they obliged to enter into a dialogue with the offender as to the assistance he claimed he had provided or offered to provide; they were entitled to do nothing further.[14]We were told that there were many situations where the police would wish to decline to engage – for example, where the offender is a person whose information has in the past proved to be false or a fantasy or has been of no value, or where there is a risk to the offender or where the information is related to his own criminality.[15]There were occasions where the police, after engagement with the offender, would wish to decline to go further on the basis of an evaluation of what they were told by the offender. The police may conclude that the information offered is of insufficient interest to make it worthwhile pursuing the matter, or that they already know of what is offered, or the information may be incapable of belief, or taking the matter further might create unacceptable risks to the offender, his family, other informants or police operations in progress.[16]In our judgement, it is important to begin from the premise that a discount is given to encourage assistance from offenders who are prepared to act as informants or to give evidence for the prosecution. The offender will want the court to have confirmed the facts on which he relies for claiming a discount. Lord Bingham CJ, basing himself on what Lord Lane CJ said in R v King (1985) Cr.

(S) 227, said in R v A and B [1999] 1 Cr App R (S) 52:

“The extent of the discount will ordinarily depend on the value of the help given and expected to be given. Value is a function of quality and quantity. If the information given is unreliable, vague, lacking in practical utility or already known to the authorities, no identifiable discount may be given or, if given, any discount will be minimal. If the information given is accurate, particularised, useful in practice, and hitherto unknown to the authorities, enabling serious criminal activity to be stopped and serious criminals brought to book, the discount may be substantial. Hence little or no credit will be given for the supply of a mass of information which is worthless or virtually so, but the greater the supply of good quality information the greater in the ordinary way the discount will be. Where, by supplying valuable information to the authorities, a defendant exposes himself or his family to personal jeopardy, it will ordinarily be recognised in the sentence passed. For all these purposes, account will be taken of help given and reasonably expected to be given in the future.”
Even though those are the considerations for the offender, it must always be borne in mind that the justification for the discount is the interest of the state in obtaining such assistance as part of the investigation, deterrence and punishment of crime. The interests of the state will also include risks to others and to ongoing investigations that can be prejudiced by the provision of information to an offender about his claim of assistance or its value.[17]In Piggott the court said that the police were under a duty to confirm or deny the assertions of assistance made by the offender prior to sentence for the purposes we have just described. However the court did not make clear the extent of the obligation of the police in the circumstances we have been asked to address.[18]We consider that the obligation of the police is a very limited one. The assertion of assistance by an offender and the decision as to how to respond are matters relating to intelligence. By its very nature intelligence is a matter that in the public interest must remain confidential and within the judgement of the police as to the extent to which they are willing to provide information. There can, for example, be cases where, if the police were obliged to answer assertions made, the answer, even if a simple denial, could reveal information that might have been sought by the offender for use in his own or another’s criminal enterprise.[19]Furthermore, the police may owe a duty of care to the offender as a CHIS or informer – see Swinney v Chief Constable of Northumbria [1997] QB 464, An informer v A Chief Constable [2013] QB 579. The courts should not impose such a duty on the police by requiring them to discuss the provision of information with an offender; they simply may not wish to deal with the offender for operational or other reasons. Nor should the courts circumscribe the way any duty which the police may have assumed to an offender should be discharged by requiring them to discharge it in a particular way in the very different circumstances that can arise.[20]For these reasons, which involve balancing the interests of the offender and the public interest, although the court will always expect the police to inform the court of the fact that the police have made a decision not to provide a text as matter of case management, it is sufficient if the police merely state that they will not provide any information to the court in relation to the offender’s assertions of assistance. The police are not required to give any explanation of their reasons for the decision (for example they decline to engage or have engaged and wish to take the matter no further), or the stage at which they decided not to provide any information. The police need do no more than say that the police will not provide any information to the court. Such a statement to the court can generally be provided by letter and not by text. There may unusually be circumstances where the police would have to reveal in the reply the assertions of the offender that he had provided assistance; in such a case it might therefore be necessary to provide the response in the form of a text. Whether it is provided by letter or text, it must be signed by a senior officer of police (normally a superintendent) or an equivalent senior official in other law enforcement agencies. (c). The position where the police after engagement and inquiry decide the assistance is of no value[21]After engagement and inquiry, the police may decide that the information is of no value. In such circumstances, it is again a matter for the judgement of the police as to the extent of the information they wish to provide to the court. On occasion they may wish to provide confirmation to the court of the provision of assistance, but with their assessment that it is of no value. However whether the police do so should be left to their judgement as such a response might, if sent, provide the offender with information of matters that might endanger others or which might assist the offender in his own or a colleague’s criminal enterprise.[22]In our view therefore the same considerations apply as to the other two situations which we have been asked to address in the context of these applications. It must be for the judgement of the police as to the extent of the response they are able to give. In some cases, they may only be able to say that they will not provide a text. In other cases they may say that information has been provided to them, but it is of no value. Their judgement is a judgement to be exercised in the public interest and the interests of justice; it is not for a court to inquire further. (d). Safeguards against error and malpractice.[23]There may be cases, as the facts in Piggott and X show, where the offender believes that the information provided by the police is wrong or where the police have misjudged the offender and the information he is capable of providing. The appeal in Grant [2015] EWCA Crim 1815 is an illustration of a demonstrably inaccurate text and a failure to follow the correct procedure (see paragraph 17).[24]We would not therefore have been prepared to allow the police the measure of judgement in their assessment of the public interest and the interests of justice which we have set out, despite the considerations to which we have referred, unless we were satisfied that there were proper safeguards to protect offenders from error or malpractice.[25]First, we were assured by the Crown, acting for all the interested law enforcement agencies, that the law enforcement agencies would invariably provide information by way of text where they have initiated the engagement with the offender.[26]Second, there are appropriate bodies that can investigate any failures by the police, including the Investigatory Powers Tribunal (in respect of complaints arising out of the authorisation of a CHIS), the Independent Police Complaints Commission (IPCC) (as happened in the case of the applicant ZAR - see paragraph 66 below), the Criminal Cases Review Commission, or Local Ombudsman or other Ombudsmen in the case of most other law enforcement agencies. An offender is always entitled to complain to them. As investigative bodies they are in a position, which a sentencing court is not, to carry out what is necessarily a confidential investigation of the matters raised by the complaint.[27]We therefore consider these safeguards not only to be sufficient, but much more appropriate than an attempt by a court to try and examine as part of a sentencing process the reasons the police have declined to provide a text. The court should not therefore question the police about their reasons for not providing a text. (3). The position if the offender disputes the contents of the text[28]In R v X to which we have referred at paragraph 6 above the court made clear that there should normally be no question of evidence being given or an issue tried, if the offender disagreed with what was said by the police. It was argued that this guidance did not take into account what had happened in Piggott and it had overlooked the observations of Lord Lane CJ in Sivan that an officer should be available to give evidence.[29]We have reconsidered that guidance in the light of the argument before us and in the light of the decision in Piggott to which the court in X was not, it appears, referred. We see no basis whatsoever for departing from that guidance. It is difficult to conceive of any circumstances where permitting the cross-examination of any police officer who attends court would be in the interests of justice or in the public interest; the considerations are obvious for the reasons we have already given. It is not the function of the court when engaged in a sentencing process to question the police as to the accuracy of the text supplied; if there is an issue that is a matter that can be addressed in the manner we have set out at paragraph 26 above.[30]Furthermore the observations made by Lord Lane CJ in Sivan as to the desirability of an officer being present to give evidence were made at an early stage of the development of the process in respect of texts. In our view the need for an officer to give an explanation to the judge will be highly unusual, as the court will not go behind or question the content of a text. The need is likely only to arise in the rare case where the text is unclear or there is a matter established independently of the offender which is not covered in the content of the text. In such rare circumstances, the issue can be raised with the police as a request for further information as distinct from questioning the accuracy of the text. As we have explained, a court is not best placed to examine issues of accuracy. (4). Late requests for assistance resulting in an application for an adjournment[31]It is clear from the decision in R v A and B that, as the Court of Appeal is a court of review, an offender who does not offer assistance before conviction and sentence will ordinarily not be able to rely on the provision of information after conviction before the Court of Appeal. There are exceptional cases, but this principle has been consistently applied: see, for example, R v Z [2007] EWCA Crim 1473, [2008] 1 Cr App R (S) 60, and R v Lingu (Daniel) [2013] EWCA Crim 825 [2014] 1 Cr App R (S) 21 at paragraph 26. In R v ZTR [2015] EWCA Crim 1427, [2016] 1 Cr App R (S) 15, this court saw no basis for reconsidering the principle.[32]Thus it is of the greatest importance for an offender to ensure that the sentencing court has before it in the form of a text any confirmation by the police of the assistance which the offender has provided and its value. An offender, if he wishes to assert that he has provided assistance, therefore should make clear his position at the earliest opportunity.

(S) 733 emphasised:

“There is a clear public policy interest in encouraging the speedy proffering of information by those who have it and as part and parcel of their acceptance of their own responsibility for the matters with which they are charged. Where the offer of assistance is made late in the day and proves to be of no value, there must always be some difficulty for the Court in determining how genuine the offer and the remorse are.”
[33]It might therefore be argued that if a text is not available but has been requested, a court should readily agree that sentence should be adjourned. However, a court should not readily contemplate granting an adjournment, unless the request to the police has been made in a timely manner and the delay has arisen because the police have been unable to provide the information despite every effort on their behalf. A court should not ordinarily grant an adjournment because a request has been made late, as it is the duty of the offender to make a request immediately; his failure to do so will result in the court generally proceeding without any adjournment. II. THE SPECIFIC CASES (1). The appeal of AXN[34]In 2014 at a Crown Court the applicant AXN pleaded guilty on the day of trial to count 1, a charge of possessing a class A drug (cocaine) with intent on 10 May 2013. There was a second count which was ordered to lie on the file against him. It alleged that over a period between dates in February and March 2013 AXN had been concerned in the supply of cocaine.[35]The case comes before the court by way of renewed applications for leave to appeal against conviction and sentence after refusal by the single judge. There is also an application for leave to adduce fresh evidence, and an extension of time of about six weeks is required in relation to the conviction application.[36]AXN has had the benefit of being represented by Ms Bradley in relation to the sentence application. We have considered the conviction application on the basis of the papers submitted to us.

The background facts

[37]The facts of the count 1 offence show that in May 2013 police officers stopped a motorcar being driven by AXN. About five minutes beforehand a man, CR, had been seen by police getting into the front passenger seat. When the vehicle was searched a clear plastic bag containing 27.7 grams of cocaine at 19 per cent purity was recovered from the central console. Those drugs have a street value of up to £1,400 with a wholesale value of about £800. When AXN’s mobile phone was seized and examined it revealed a series of text messages consistent with the supply of controlled drugs. This provided the basis for count 2. In interview under caution AXN denied all knowledge of the package found in his car and suggested that he had been “stitched up” by his ex-partner.[38]In relation to count 1 a basis of plea was put forward:
“He was asked by CR to take drugs to his home and that someone would pick them up. [AXN] did not want to do this but agreed after CR threatened that there would be consequences for his family. [AXN] owed him a debt of approximately £600 for tobacco. [AXN] was to receive £50 knocked off his debt.”
[39]It was accepted by his counsel that the threat described fell short of duress. The prosecution did not agree the basis of plea but did not seek a trial of the issue and the Recorder did not direct one. Given the prosecution’s case, AXN was fortunate that the prosecution adopted this stance.[40]During discussions in open court about the basis of plea the prosecution referred to the text messages found on AXN’s phone. The Recorder had expressed some concern that the text messages might undermine the basis of plea, but the prosecution reiterated that count 2 was not to be proceeded with and that it was content for AXN to be sentenced on the basis tendered. The matter was adjourned for a pre-sentence report since AXN was the sole carer for two children aged 9 and 11.[41]In addition it appears that at that hearing AXN provided a recording to the police in which a person said to be CR acknowledged handing the drugs over to AXN on the occasion in question. It appears that another reason for the adjournment granted was to enable the information provided to be evaluated. On that occasion it is said that AXN indicated a willingness to give evidence against CR at any proceedings that might be brought.[42]The case came back before a different judge a month later for a second hearing. The matter was further adjourned by him to give time to look into the question of the information provided. Three weeks later, at the third hearing, that judge sentenced AXN to 31 months imprisonment having placed the case into category 3, significant role, in the relevant guideline. He took a starting point of 42 months (which is in fact the category 4 starting point) and granted 25 per cent credit notwithstanding the very late guilty plea.[43]On that date the court was informed that no text was to be provided by the police. The judge was told of the contents of the recording and stated that he could take it into account. He noted that it was interesting that the police had not furnished a text, but also noted that counsel was saying that his client was willing to give evidence in the event of a prosecution of CR.[44]There was no subsequent prosecution of CR. It appears that the police entertained reservations about the credibility of AXN as a witness. He was a man with a number of convictions, including one for possession of drugs with intent. Moreover, the account which he had given in interview to the police was not consistent with what he might say about CR, and he had given conflicting accounts as to whether the debt which he claimed to owe was as a result of purchasing tobacco or steroids.[45]The judge was not aware of the reasoning of the police, but he took note of the fact that no text had been provided. Although he had commented to the effect that he could take into account the information provided, it is clear that little weight was attached to it, unless it was accounted for in the generous discount granted for the late guilty plea.

The application in respect of conviction

[46]The grounds of appeal against conviction urged firstly, that the recording of CR provided fresh evidence in support of a defence that AXN was unaware that the parcel in his car contained illegal drugs. Secondly, reliance was placed on a default judgment obtained against CR in the County Court. The appellant’s action was a claim for the value of the confiscation order made in Crown Court proceedings as representing the value of the drugs which AXN said was CR’s responsibility. Next, there was an application for the admission of a witness statement of a Ms Codling to be adduced as fresh evidence. The witness purported to provide an explanation for the text messages recovered from AXN’s phone and to rebut the contention that they related to the sale of controlled drugs. Additionally, AXN claimed that he was wrongly advised to plead guilty, having given instructions that he had no knowledge of the drugs and that in any event he was acting under duress. Finally, it was argued that the police had destroyed scientific evidence which might have supported AXN’s account that the drugs had been handled by CR. This was a reference to scientific tests undertaken by the police on the package.[47]We say at once that there is no merit in any of these renewed grounds. Firstly, privilege having been waived, we are satisfied that there is nothing in the claim that AXN was wrongly advised to plead guilty in the light of his instructions. We are satisfied that he entered a guilty plea entirely voluntarily, and then sought to mitigate his guilt by reference to the basis of plea. The purported fresh evidence by way of the tape recording and the statement of Ms Codling represented information which was available to him well before he entered a guilty plea; there is no good reason why it could not have been adduced and relied upon at that stage if AXN had wished to do so. However, the fact is that he chose to enter a guilty plea and not persist in any possible defence. Moreover, Ms Codling’s evidence only went to count 2 which was left on the file. We therefore refuse the application to adduce fresh evidence.[48]The default judgment cannot assist AXN. There has been no judgment on the merits of the claim, which in any event does not appear to us to support any tenable cause of action. Finally, there is nothing in the point about the destruction of evidence, particularly in the light of AXN’s voluntary guilty plea. We reiterate that all of the grounds put forward are completely without merit and the conviction application is dismissed.

The application in respect of sentence

[49]We turn next to the question of sentence. Counsel’s grounds were firstly, that the judge failed to have any or any proper regard to the basis of plea in deciding where the offending fell within the relevant guidelines. It was accepted by counsel that this case fell towards the bottom of category 3 or at the upper end of category 4 based on the quantity of cocaine involved. It was, however, submitted that the characteristics of the offending, having regard to the basis of plea, showed a lesser role based on the following features: i) performing a limited function under direction; ii) engaged by pressure, coercion or intimidation; iii) absence of influence on those above him in the chain; and iv) whilst obtaining financial advantage by reduction of a debt, such advantage had arisen through pressure.[50]The judge, it was contended, was wrong to place the case into a significant role on the basis of AXN’s motivation by the prospect of financial gain.[51]Separately from those submissions, it was argued that there was a failure to give any weight to the assistance to the police provided or offered by AXN. The court should recognise the benefits of assistance being provided by offenders and should reflect that by some reduction in AXN’s sentence. Whilst the police had not chosen to use the information, AXN’s attitude was still capable of being reflected in the overall sentence.[52]As to the latter point, we do not consider that the provision of the recording of CR together with AXN’s asserted willingness to give evidence against CR to have been of any value. As we have set out at paragraph 20, it was not necessary for the police to explain why they would not provide a text. However, as they did, we have examined their explanation. The factors which led them not to rely on the recording and thus not to provide any text to the judge seem to us to be entirely valid. There would have been substantial obstacles to AXN’s evidence being viewed as credible, and there were potential difficulties about the obtaining of the recording itself, assuming that CR is indeed one of the parties to the conversation. There being no value in the material, the only other possible basis upon which AXN could claim credit would be on the footing that it represented a degree of remorse. In this context counsel has drawn our attention to R v Lingu (Daniel).[53]Whilst in some circumstances there may be mitigation if the information provided is not ultimately acted upon, it seems to us that any assessment must be heavily fact specific and take into account whether there was any intrinsic value in the information proffered. In the circumstances of this case we do not see what occurred as providing mitigation of any material weight. In truth the information did no more than bolster a basis of plea which in our judgment warranted closer examination than in fact occurred.[54]We turn then to the submissions based on the sentencing guideline. The basis of plea did not deal with the issue of whether the onward supply of the drugs by AXN amounted to street dealing or not within the terms of the guideline. If it did, category 3 would be the appropriate category and, on one view of the facts, that is a possible conclusion. It appears in any event from the judge’s starting point of 42 months that he put the case in an area which is within a range common to categories 3 and 4 and which reflects the starting point for a category 4 case. This of course depended on his characterisation of the case as involving a significant role. It was that finding which Ms Bradley, on behalf of AXN, attacked.[55]We have fully taken into account the points made by Ms Bradley – the duty of the judge to sentence in accordance with the basis of plea, the factors which were indeed indicative of a lesser role, and the single factor which influenced the judge into putting the matter into a significant role, namely financial gain.[56]Nonetheless, we reject the contention that if AXN is to be put into a lesser role a starting point of 18 months custody is appropriate. Firstly, the quantity of drugs involved significantly exceeds the indicative quantity for category 4. Moreover, a lesser role in category 3 would still attract a starting point of 3 years. AXN has previous convictions including a previous conviction for possessing drugs (unspecified) with intent to supply which is an aggravating factor. Account is to be taken of the fact that on the evidence AXN was the sole carer for two young children whose lives would be disrupted by his inevitable incarceration. As in R v Petherick [2013] 1 Cr App R (S) 116, this factor may remain a material consideration even where custody is imposed. Additionally, credit was due for a guilty plea, albeit a late one. Taking these factors in the round, and without giving the same overgenerous credit for the guilty plea given below, we conclude that the sentence of 31 months cannot be described as manifestly excessive.[57]The renewed application is therefore refused. ZAR The background facts[58]The applicant ZAR appeared at the Crown Court with a number of co-accused charged with conspiring to supply class A drugs between January 2012 and December 2012. The prosecution case was that the co-accused X and ZAR played leading roles in what was a major conspiracy spread over several locations. ZAR was repeatedly involved in the purchase of various items of equipment used to prepare the heroin for distribution and had substantial links to other conspirators and to the distribution network. Photographs of ZAR with co-conspirators and posing with substantial quantities of cash were found on his mobile telephone. During the course of the investigation just under 4 kilos of heroin, over 4 kilos of cutting agent and thousands of pounds in cash were recovered. The prosecution relied on, inter alia, evidence of surveillance, mobile telephone evidence, drugs paraphernalia found at an address occupied by him and fingerprint analysis linking him to drugs and to cash.[59]The defence case was that ZAR believed any drugs with which he came into contact had been paracetamol and that he had been stealing it from drug dealers who buried their hoard in a field. ZAR told his trial lawyers that he had contact with a police officer about people burying drugs in a field but was unable to name him. His solicitor tried to track the officer down but was unable to do so. In any event, ZAR’s instructions changed.[60]On the day of trial in January 2014 he decided to plead guilty, as did his co-accused X. By that time, five others had also pleaded guilty. The remaining accused were tried and only one convicted.[61]ZAR had a number of convictions, mostly for offences of dishonesty and motoring offences. He had also been convicted of possessing class A drugs with intent to supply and sentenced to 5 years imprisonment. At the time of trial he was subject to a suspended sentence imposed in June 2011.[62]For the purposes of gathering mitigation, ZAR’s trial counsel decided to explore with the prosecution whether or not ZAR had been of any assistance to the police. Prosecution counsel then made discreet inquiries and at ZAR’s request a text was provided. Asked by this court about his conduct of the defence, trial counsel said this about the text produced: “…a police officer was found and a letter was sent to the Learned Judge revealing that ZAR had indeed supplied the name of a drug dealer to the police whom they were already aware of and who had nothing to do with this investigation or this conspiracy. He had not named anyone involved in this conspiracy. The cynical view was that he was naming local competition to get the police to remove them. The suggestion that he was trying to entrap the people in THIS conspiracy therefore simply does not wash. Nor did the police ever give him permission to involve himself in this conspiracy as a sort of undercover assistant. It was not a defence and neither was duress”.[63]The text stated that in November and December 2011 ZAR was assessed for the role of registered police informant. The assessment was not completed because ZAR failed to stay in touch with his potential handlers. During the period he was in touch he provided the name of someone involved in the supply of drugs, an address and a telephone number. The police already knew of the man and the information provided simply added to their general intelligence upon him. There was not sufficient detail to pursue any lines of inquiry. The police force responsible for the assessment stated it was unlikely they would wish to consider him for the role of informant. Trial counsel went through the letter with ZAR and was given no instructions to challenge it, even if, contrary to the view we have expressed, he was entitled to do so.[64]At the sentencing hearing in February 2014 the trial judge noted that one of the leading players had been acquitted by the jury and decided for those who had pleaded guilty he would reduce what would otherwise have been a starting point of 16 years to 12 years. He further reduced that figure to reflect 20% credit for pleading guilty. He then sentenced ZAR to 9½ years’ imprisonment. Other co-accused received sentences of between 3 and 9½ years’ imprisonment.[65]ZAR felt aggrieved at how he had been treated and composed his own grounds of appeal against sentence and conviction. His applications were refused by the single judge who carefully considered the application. He renewed his application for an extension of time (189 days in respect of conviction and 136 days in respect of sentence) for leave to appeal against conviction and sentence and sought leave to call two witnesses.[66]He also complained to the IPCC in relation to the text handed to the court at the time of sentence. As a consequence, a second text was provided to this Court. It begins:
“This letter is a supplement to my previous submission dated 26 February 2014 which was presented to a Crown Court. Due to an investigation into a complaint made by the defendant the investigating officer concluded that the original text did not embellish or make any significant omissions but further detail and clarity could be provided.”
[67]The second text revealed that some of the information ZAR provided to the police was false. However, it acknowledged that he did also provide what was graded as “untested intelligence” on another man or men with whom he was involved in supplying drugs. This consisted of the telephone number of one man and a description of the general locations where he stored his drugs coupled with an admission that ZAR allowed that man and his associates to use his address to prepare class A drugs for distribution. The officer restated that ZAR failed to keep contact with the police during the assessment period and that it therefore came to an end. The conspiracy charged began in January 2012 and there was no contact with him during the period alleged.[68]ZAR did not accept the contents of the more detailed text as either accurate or complete. In particular he asserted that: i) he provided more information than that set out; ii) he did not allow his premises to be used for any preparation of drugs; iii) he made a number of unsuccessful attempts to contact his handler (whom he has now named) after January 2012; and iv) he had a conversation with the officer the day before sentence in February 2012 in which he claimed the officer promised to provide a letter to the Court setting out all the relevant details. At one stage ZAR sought to adduce evidence in this court to establish this account, but the application was withdrawn by counsel.

The application for leave to appeal in respect of conviction

[69]There are three grounds of appeal against conviction advanced by ZAR himself. i) He insisted that his plea of guilty was entered under duress and was equivocal. ii) He intended to contest the allegation on the basis he provided information to the police about the conspiracy, but his defence was undermined by their failure to disclose relevant material under the primary disclosure duty. iii) His trial counsel should have sought a separate trial from his co-accused so that he would have been free to run his defence before a jury.[70]In view of criticisms made of trial counsel and solicitors by ZAR and by Ms Bradley who represented ZAR on the application in respect of sentence, ZAR was invited to and did waive his privilege in respect of trial counsel and solicitors. Their responses made it crystal clear that there was nothing equivocal about the plea of guilty and there was no question of duress. Trial counsel described ZAR as a strong and confident character. He discussed the case with ZAR in full. It was ZAR’s decision to plead guilty; he had endorsed counsel’s brief accordingly. He did so because there was no defence. The evidence was overwhelming. ZAR was not a registered or participating informer and was not acting on the instructions or authority of the police; he had never suggested that he was. Any information he gave could only be relevant to sentence. It is perhaps not surprising, therefore, to note that ZAR in correspondence with the Registrar acknowledged his knowledge of and participation in the conspiracy.[71]The grounds of appeal against conviction are unarguable and the renewed application is refused.

The application in respect of sentence

[72]We turn to the application for leave to appeal sentence. The grounds of appeal against sentence are twofold. i) The sentencing judge wrongly ascribed to ZAR a leading role. ii) The police failed to provide a text to which he was entitled. As a result the judge has not given him sufficient credit for the help he has given.[73]Ms Bradley criticised ZAR’s trial lawyers for failing: i) to take full instructions upon a basis of plea; ii) to ensure that ZAR fully understood the implications of pleading guilty; iii) to take appropriate steps to seek proper disclosure in relation to ZAR’s instructions; iv) to provide a written basis of plea to the court and to seek a Newton hearing; and v) to seek a separate sentencing hearing for ZAR.[74]Ms Bradley took us to the attendance notes of his trial lawyers which suggested that ZAR was concerned at the prospect of giving evidence in open court about conversations he had with police officers. It was her contention that it was incumbent upon his lawyers and upon the prosecution to place all relevant information before the sentencing judge without putting him at risk. She criticised trial counsel for failing to challenge the contents of the first text insisting that had the trial judge known the contents of the second text his approach would have been different.[75]Furthermore, she criticised the police for grading the information provided at such a low level, claiming it must have been more than a coincidence that his information was given in late 2011 and surveillance of the conspirators began a month or two later.[76]In any event any assistance that an offender provided, even if ultimately it was not acted upon, was material capable of assisting the offender in mitigation and was material that should have been provided to the sentencing court for its consideration. Such an approach she suggested would have been consistent with the provisions of the Attorney General’s Guidelines on Disclosure to which we have referred at paragraph 3 above.[77]We unhesitatingly reject both grounds of appeal against sentence and the criticisms made of trial counsel. He fulfilled his professional obligations to his lay client to the full. He laid before the sentencing judge all available mitigation. ZAR was well aware of the contents of the first text and did not suggest he wished to challenge them. There was nothing before him to indicate that a basis of plea, Newton hearing or hearing separate from his co-accused was necessary. Furthermore, as we have explained at paragraphs 28 and 29 above, the court will not permit questioning of the contents of a text. In any event, the contents of the second text elicited after he did complain do not advance his cause. The information he provided, where true, was low grade and took the police very little further.[78]As to the categorisation of the offence and the offender’s role, the sentencing judge knew from the trial and from the evidence against ZAR the size and extent of the conspiracy. He rightly placed it in category 1 (based on 5 kilos). Almost 3½ kilos of high purity heroin were recovered together with 4½ kilos of cutting agent; that alone would have come to at least 5 kilos of heroin to be distributed on the street. Further, the amount of drugs actually seized was not the only indication of the extent of the conspiracy. This was, on any view, a large scale operation to distribute class A drugs around several towns and cities. There was also ample evidence to justify placing ZAR as one of those with a leading role. His involvement was extensive and of an organisational nature, at a high level, with an expectation of substantial gain.[79]In those circumstances ZAR was fortunate to receive two discounts. Somewhat generously in our view, the judge decided to reduce what he said would otherwise have been a sentence of 16 years to 12 years because a co-accused was acquitted, and he gave a 20% discount for a plea of guilty at trial. There is no basis whatsoever for arguing ZAR deserves further credit.

Conclusion

[80]For those reasons we refuse leave and refuse all the other applications. At the time he did the same, the single judge warned ZAR of the consequences of pursuing a totally unmeritorious application. As the Vice President of the Court of Appeal Criminal Division observed in R v Gray & Ors [2014] EWCA Crim 2372 “the only means the court has of discouraging unmeritorious applications which waste precious time and resources is by using the powers given to us by Parliament in the Criminal Appeal Act 1968 and the Prosecution of Offences Act 1985”.[81]ZAR has made no representations as to why the full court should not direct that some time spent in custody as an applicant should not count towards sentence. These applications have wasted very considerable time and resources which we should have devoted to more meritorious cases. We shall make a loss of time order of 30 days.

Cited in 2 later judgments