Ogden & Ors, R v [2016] EWCA Crim 6

Case No 201405351 B2 & 201503831 B2& 201503714 B2 &201503603 B2 &201405354 B2 & 201405352 B2 & 201405637 B2[2016] EWCA Civ 6
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEICESTER
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/01/2016
Before
THE PRESIDENT OF THE QUEEN’S BENCH DIVISION(SIR BRIAN LEVESON),MR JUSTICE HADDON-CAVETHE COMMON SERJEANT OF LONDON
Between
ReginaRespondentNeil OgdenAppellantsStephen OgdenAppellantKevin BroughAppellantDavid AtkinsonAppellantGlen MartinAppellantDean WilsonAppellantGavin LoganAppellant
Mr L Blackburn (instructed by CPS appeals unit) for RespondentMr S Reiz (instructed by Stephen Lickrish & Co) for Appellant Mr N OgdenMr W Jackson (instructed by Cobleys Solicitors) for Appellant Mr S OgdenMr W England (instructed by Wilford Smith Solicitors) for Appellant Mr BroughMr K Toomey (instructed by Rahman Ravelli) for Appellant Mr AtkinsonMr S Reiz (instructed by The Johnson Partnership) for Appellant Mr LoganMr S Reiz (instructed by Bunting and Riley Solicitors) for Appellant Mr WilsonMr S Reiz (instructed by Darryl Ingram & Co) for Appellant Mr MartinHearing Hearing date: 10 th December 2015
JudgmentMr justice haddon-cave:INTRODUCTIONTrials
[1]Neil Ogden (46), Kevin Brough (56), David Atkinson (48), Glen Martin (49), Dean Wilson (29), Gavin Logan (29) and Stephen Ogden (67) were convicted of a large number of drugs related charges after two trials before HHJ Mooncey in 2014 and 2015. There were ten other defendants also involved, six of whom pleaded guilty. These trials followed a police operation known as “Operation Chromium”. At the first trial at Leicester Crown Court, verdicts were returned on 17th October 2014 in relation to various counts against Neil Ogden, Kevin Brough, David Atkinson, Glen Martin, Dean Wilson, Gavin Logan, but there remained some counts upon which the jury could not agree. A second trial took place at Leicester Crown Court and verdicts were returned on 8th July 2014 on these counts against Neil Ogden and David Atkinson and in relation to a count against Stephen Ogden. Prior to the second trial, Kevin Brough pleaded guilty to the remaining count against him. We summarise the counts and convictions below.[2]On 17th October 2014 in the Crown Court at Leicester before H.H.J. Mooncey: Neil Ogden was convicted of a total of 12 counts, comprising 2 counts of possession of Class B drugs (one with intent) and 10 counts of “Conspiracy to convert criminal property” with others contrary to s. 1(1) of the Criminal Law Act 1977 (Counts 1, 4, 7, 8, 9, 10, 12, 13, 15, 17, 18 and 25). Neil Ogden was convicted on Count 7 by a majority of 10 to 2. Kevin Brough was convicted of one Count of possession of a Class B drug with intent, one count of conspiracy to supply Class B drugs, and one count of handling stolen goods (Counts 19, 20 and 21). Kevin Brough was convicted on Count 19 by a majority of 11 to 1 and on Count 20 by a majority of 10 to 2. David Atkinson was convicted of count of conspiracy to supply Class B drugs and one count of possession of a class B drugs with intent (Counts 20 and 22). David Atkinson was convicted on Count 20 by as majority of 10 to 2. Glen Martin was convicted of one count (Count 7) by a majority of 11:1. Dean Wilson was convicted of one count (Count 10). Gavin Logan was convicted of one count (Count 15) by a majority of 10:2.[3]On the 22nd June 2015, before HHJ Mooncey: Kevin Brough pleaded guilty to a further charge of “conspiracy to convert criminal property” with Neil Ogden (Count 6).[4]On the 8th July 2015 in the Crown Court at Leicester before HHJ Mooncey: Neil Ogden was convicted of one count of count of conspiracy to supply Class B drugs and two further counts of “conspiracy to convert criminal property” with others (Counts 2, 5 and 6). Stephen Ogden was convicted of one count of “conspiracy to supply a Class B drug, namely amphetamine” with his son Neil Ogden (Count 2). David Atkinson was convicted of one count of “conspiracy to convert criminal property” with Neil Ogden (Count 5).

Sentences

[5]The trial judge HHJ Mooncey passed the following sentences. On 28th November 2014, in the Crown Court at Leicester: Glen Martin was sentenced to 3 years imprisonment; Dean Wilson was sentenced to 30 months imprisonment; Gavin Logan was sentenced to 18 months imprisonment suspended for 18 months. On 8th July 2015, in the Crown Court at Leicester: Stephen Ogden was sentenced to 4 years imprisonment; David Atkinson was sentenced to 7 years imprisonment. On 20th July 2015, in the Crown Court at Leicester: Kevin Brough was sentenced to 5 years and 9 months imprisonment. On 8th July 2015, in the Crown Court at Leicester: Neil Ogden was sentenced to 12 years imprisonment.

Appeals

[6]The appeals and applications to appeal before us are, in summary, as follows: Neil Ogden, Gavin Logan and Dean Wilson appeal against conviction in the first trial by leave of the single judge. A notice of appeal by Neil Ogden against conviction in the second trial has also been received. David Martin appeals against conviction and sentence by leave of the single judge. David Atkinson appeals against conviction by leave of the single judge who referred his application for leave to appeal against sentence to the full court. Stephen Ogden and Kevin Brough’s appeals against sentence have been referred to the full court by the single judge. For ease of reference, they will all be referred to in this judgment as “Appellants”. THE FACTS[7]On 3rd February 2012, Neil Ogden’s ex-girlfriend, Donna Wilson, was admitted to Stepping Hill Hospital, Stockport, with apparent drug problems. On 4th February 2012 the police searched Neil Ogden’s home, 11 Belmont Park, Chesterfield. The police found a micro-SD card and a card reader. An excel spreadsheet was found on the micro-SD card which had a list of names and numbers. A number of mobile phones, various cutting agents, £21,330 cash and a cash counter were also found. Police also searched 82 Oker Avenue, an address that was being rented by Neil Ogden, and 84 Oker Avenue where his parents, Stephen Ogden and Joan Ogden’s, lived. At 82 Oker Avenue police seized £22,502 cash, 9 bags that contained the residue of caffeine mixed with amphetamines, various amounts of cannabis and cannabis resin, a set of digital scales and 84 unused grip seal bags. At 84 Oker Avenue police seized 1.1 grams of cannabis, two partly used bags of dextrose sugar and a Kenwood mixer, bowl and scales which had traces of amphetamine and caffeine.

Prosecution case

[8]The Prosecution case was that the excel spreadsheet found at 11 Belmont Park recorded Neil Ogden’s drug dealing. He put the nickname of each person that owed him money on the spreadsheet. There was a separate column for each person with their debts and credits recorded in that column. Neil Ogden’s mobile phones had telephone numbers for David Atkinson, Kevin Brough, David Martin, Gavin Logan, Dean Wilson and others.[9]The indictment comprised in the main individual ‘closed’ conspiracies between Neil Ogden and the various defendants. Overall the police recovered vast amounts of cash, cutting agents, scales, tubs, bags and a cash counting machine. The defendants were all said to be involved in the exercise of converting criminal property. The defendants worked together to sell drugs and other property in Derbyshire between 2009 and 2012. Neil Ogden dealt in drugs on a wholesale basis and they all assisted him in different ways such as selling of the drugs, moving the drugs and providing stock and equipment.[10]Stephen Ogden assisted his son Neil Ogden with the operation. He purchased various items on Neil Ogden’s behalf. Cutting agents and other paraphernalia were found at his house. He also had contact details for all of the people that Neil Ogden did business with on his phone. Gavin Logan owed Neil Ogden money for drugs. There was an exchange of messages between them in which Logan explained his difficulties in repaying the debt. He appeared in the dealer list as “Gav”. Kevin Brough was recorded on Neil Ogden’s Dealer List. He had the nickname “Kev”. He had a key to a shed in which 1.5kg of cannabis was found. It was in a tub which had traces of his DNA. A wacker plate, used for repairing roads, which had been stolen from Morgan Sindall in December 2011 was also found in the shed. David Atkinson was a drug dealer. 2kgs of cannabis was found in his kitchen. His fingerprints were on some of the bags with it. His DNA was also found on bags inside the tub found at Kevin Brough’s shed. Glen Martin was a drug dealer. He had the nickname “Bro”. His phone number appeared in Neil Ogden’s phone and there were messages exchanged between them which discussed drugs. His property was searched and the police found a diary with figures consistent with drug deals. Letters from Neil Ogden were also found. Dean Wilson was a drug dealer. On Neil Ogden’s dealer list he appeared as “DW”. His sister, Donna Wilson, was at one stage in a relationship with Neil Ogden. His address was searched and two sets of scales were found.

Interviews

[11]Neil Ogden and Stephen Ogden gave no comment interviews to the police. They both relied on prepared statements. Dean Wilson gave a no comment interview. He did however say that he had nothing to do with Neil Ogden and would only speak to him when he visited his sister’s house. Kevin Brough answered some questions in interview. He had known Neil Ogden for some time because Neil Ogden’s daughter would ride his horses at Checkers Farm. He had sold the Hognaston shed to Jill Howe. He still kept stuff in it. He had no idea who the texts from Neil Ogden on his phone were from. David Atkinson said that the cannabis found in his kitchen was for his use alone. He usually had an ounce at a time. He bought and sold cars and plant to make money. He also won a lot of money through gambling with William Hill bookmakers. He knew Neil Ogden through the car trade. He did not know him as “Gripper” or “Grip”. He had previously bought an agricultural screen from Kevin Brough. He did not buy or sell drugs to or from Neil Ogden. Glen Martin said that he had no money dealings with Neil Ogden. He knew nothing about the names and figures in his diary. Gavin Logan said he had not had contact with Neil Ogden for two years (in November 2012). He did not owe Neil Ogden money. He answered no comment to questions in relation to Neil Ogden’s dealer list or the Facebook messages between them.

Previous Convictions

[12]The prosecution relied on the previous drugs convictions of Neil Ogden, Glen Martin, Kevin and Dean Wilson.

Defence cases

[13]The defence case for Neil Ogden was a blanket denial of the offences. It was argued on his behalf that the s.18 search which resulted in the finding of the excel spreadsheets was unlawful. Neil Ogden did not give evidence. Glen Martin and David Atkinson denied they were involved in a conspiracy with Neil Ogden. David Atkinson said he used cannabis for his own personal use. Neither Gavin Logan nor Dean Wilson gave evidence.[14]The Appellants made a submission of no case to answer on a point of law discussed below.

Issues at the trial

[15]The main factual issue for the jury in relation to the conspiracies the prosecution had to prove that the Appellants were party to the particular conspiracy. The closed conspiracies required the jury to be satisfied that each of the named Appellants was a party to the conspiracy. In relation to Possession of Controlled Drugs with intent to Supply (Counts 1, 19, 22 and 24) the jury had to be satisfied that the defendant was in possession of drugs and intended to supply them to another. In relation to Handling Stolen Goods (Count 21which related to Kevin Brough) the jury had to be satisfied that this Appellant knew or believed that the item was stolen. EVIDENCE First trial

EVIDENCE

[16]A large number of civilian and police witnesses gave evidence at the first trial. Andrew Baxter gave evidence, from behind a screen, that he sold caffeine to Neil Ogden and Stephen Ogden on a number of occasions. They would always pay in cash. Paul Dinnicoly gave evidence that he had been an insurance broker for many years. He knew Neil Ogden and Stephen Ogden and had arranged insurance for them in the past. Most payments were in cash and it tended to be Stephen Ogden who would pay the money. Stephen Ogden had insured anything up to 30 used cars with him in the past. Wayne Bradshaw gave evidence that in the summer of 2012 he let 82 Oker Avenue to Neil Ogden. The rent was £275 per month for the whole house. Neil Ogden made the payments in cash. Steve Clark gave evidence that in March 2011 a man he knew as Walt (it was agreed that this was Glen Martin’s nickname) arranged for his friend, Neil Ogden to rent 11 Belmont Park. He assumed Neil Ogden used the surname Wilson although he accepted that his girlfriend’s name may have been Wilson. A couple of days after the lease was agreed he saw Neil Ogden in the car park. Neil Ogden gave him an envelope with £850 cash inside. In total £13,600 was paid by Neil Ogden. The evidence of Jane Clark was read to the jury. She cleaned 11 Belmont Park after Neil Ogden left the property. In the kitchen she found a load of white powder, which she thought was flour. She emptied it into a black bag along with other items for Neil Ogden to take. He took the bag and put it in the bin outside. David Potter, Ronald Salisbury, Sally Salisbury, John Wilkins and Adam Walkden gave evidence relating to the use and sale of the shed at Hognaston.[17]PC Hunt gave evidence that on Wednesday, the 4th of July 2012, he went with other officers to 84 Oker Avenue, Darley Dale. A video recorder was used by him to record the scene prior to the search. He seized a number of exhibits. They later went to 82 Oker Avenue and conducted the same process. On 12th October 2012 he was part of a search team that searched the shed at Hognaston. PC Webster gave evidence that on the 3rd February 2012 he stopped Neil Ogden in silver Mercedes car (Registration S500 CCH). Neil Ogden was the only occupant. He searched the car and found nothing of relevance. PC Farrell gave evidence that on the 3rd of February 2012 he transported Neil Ogden to Buxton custody suite and conducted a search of him. Various items were seized including a Samsung phone. On the 4th February 2012 he searched 11 Belmont Park. In addition to other items he seized labels for high protein weight gainer. PC Flint gave evidence that he was present at the search of 11 Belmont Park. He said that some officers had seized cash. He also seized some cash. He would have seized betting slips if he found any. He searched the kitchen and did not recall seeing a Kenwood bowl and mixer or a box for one. PC Bates gave evidence. He was also present at the search of 11 Belmont Park. He seized many items although not all of them appeared on the schedule. He seized the flat screen TV, the currency counter, a pair of George Michael concert tickets and an Xbox (OJB4). There was a Range Rover at the premises. PS Pope gave evidence that on the 4th of July 2012 he was part of a group of officers who searched 84 and 82 Oker Avenue. He directed the searched and kept the record of search logs. Number 84 was searched first. It was the home of Stephen Ogden and Joan Ogden. He arrested Stephen Ogden. He was told that Joan Ogden was upstairs and that she suffered from depression. To minimise stress he allowed Stephen and Joan Ogden to travel to the police station in the same police vehicle. Stephen Ogden told Joan Ogden to answer “no comment”. PC Miller gave evidence that on 4th of July of 2012 she was present at the search of 84 Oker Avenue. In the kitchen she seized 2 x 1 kilograms dextrose brewing sugar. Both were open. She also searched 82 Oker Avenue. A number of items were on the kitchen worktop. There was one dextrose bag, that was open and sitting on the left on the worktop and another in a cupboard underneath. There was a box of disposable gloves She found a number of white boxes with “Hygetoprin” written on them, small bottles with syringes with 0.9 sodium chloride written on them and labelled ‘bacteriostatic’. The statement of PC Whaley was read to the jury. On 12th of October of 2012 she searched Hasker Farm, Kirk Ireton with other officers. She seized a number of items including a newspaper article.[18]Jamie Millard’s evidence was that he attended 37 Highfields Lane. Upon arrival he saw Glen Martin who was stood with PC Noakes. Glen Martin agreed for his vehicle to be searched. Inside he found a sliver Nokia mobile phone and a Rio black mobile phone. He arrested Glen Martin and escorted him to Buxton custody suite. At the custody suite a black Samsung mobile phone was seized from Glen Martin.[19]Kevin Marks gave evidence that he was the managing director Phase Print Limited. On the 27th of July 2009 an order was completed for Neil Ogden. Neil Ogden had been a customer since March 2007. He used to order products on behalf of two companies: Slim Magic and Fitness Forum. He was unable to say how the order had come into the company, although it would have been by phone, email, fax, or in person. The order was for the Fitness Forum account, address being Bank Road, Matlock, and the order was for Advanced Mass High Protein Weight Gainer. 3,000 labels were produced in total. The invoice was consequently produced for a total of £609, including VAT. The labels were ready for delivery on 29th of July 2009. Neil Ogden either came to collect them in person or they were delivered to his factory. The invoice was paid in full on the 4th November 2009 either by card or cheque. He was shown an Advanced Mass High Protein Weight Gainer label and confirmed that the labels were produced by his company.[20]Steven Holme gave evidence that he was employed by Derbyshire Constabulary to manage the drugs project. He was able to look at a message and consider what it could mean by looking at the wider context of the message. He was able to give possible interpretation of words that he saw. He explained his interpretation of the various words and phrases within the text messages. In particular he said that ‘Four pieces’ equalled ‘one kilo’ because it was four quarters. The term ‘kilo’ was not used. It would be too obvious to say ‘kilo’. Twin pack meant ‘half a kilo’ or ‘two quarters’. The word ‘corner’ was used for ‘quarter of a deal’.” The word ‘top’ usually meant ‘cocaine.’ Mephedrone was called ‘Cat”. FF’ was ‘Fast’ which was a name of ‘amphetamines’. It was called ‘Speed’ after ‘Billy Whizz’, the comic character that ran very fast. Pretty Polly’ meant ‘good quality’. ‘Pollen’ shortened to ‘polly’ was a reference to cannabis. He described how Amphetamine was usually of a damp, sticky, oily consistency. It should be stored in fridge or freezer. He said that Tupperware and plastic packing was good for storing it. In relation to dealer lists concerned he said it was a business record. It is a cash business and most of the drug trade had to rely on debts. Late payments required some sort of record to be kept. He said that not every dealer used scales particularly at the lower end. In relation to Neil Ogden’s spreadsheet he said that it appeared there were names of customers at the top and the amount owed and totted up and deductions when paid in columns. He was asked about cutting agents. He said there were two types. Adulterating to add/boost the strength of the drug or bulking agent to increase the amount for sale that’s available. He said that caffeine was a mild stimulant normally put in beverages. It would boost the strength. ‘Trainer’ was amphetamines. ‘Mad’ was M-CAT or it could be an abbreviation for MDMA ( i.e. Ecstasy) (83D-E). “Items of clothing were used as a code. “Green T-shirt” was a reference to cannabis. Trainers was a reference to amphetamines. “Jumpers’ was also an expression being used for drugs. ‘T-shirt’ was an ounce and ‘jumper’ was a kilo, although this was not set in stone. He said “green trainers” was odd because green normally meant cannabis. In relation to Martin Atkinson, he said that the word “blue” could be a reference to cannabis. ‘Peng,’ ‘Blue Lemon’ and ‘Cheese’ were all cannabis references. He said that glucose, or dextrose, naturally occurred in the body as an energy source. Some people took glucose to gyms for energy use.[21]Alan Rowe gave evidence that he was a digital investigator for Derbyshire Police. He examined the micro SD card. He found three files which were called ‘Timber’ and Workbook 1’ and ‘Workbook 2’. ‘Timber’ was a Word document. It was created by and also last saved by Neil Ogden. Workbook 2 and Timber also showed Neil Ogden’s name. Workbook 1 and 2 had both been created on 13th February 2011.[22]Detective Sergeant Lowes gave evidence that he had been involved in the case since January 2012. He gave evidence regarding the items in the jury bundle and the previous convictions of Gareth Fox and Neil Ogden. He said that numerous mobile phones had been recovered. DC Timperley gave evidence that she dealt with the interviews of each of the Appellants.

Second trial

[23]Steven Holme gave evidence that he was the manager of the Derbyshire Drugs Project and a retired Derbyshire Police Officer. He described the drugs trade as a cash business. There was a role for credit. The supplier would give drugs on credit and the person receiving the drugs then sells the drugs and repays the debt after he has made a profit. The debts could be recorded in a number of ways including the use of a computer spreadsheet. He was shown the spreadsheet retrieved from Neil Ogden’s address. The lines along the top were names or nicknames of people. The columns dealt with transactions. In his view it amounted to moneys owed to the spreadsheet author. He gave evidence in relation to the terminology in accordance with his evidence in the original trial.[24]Wayne Bradshaw gave evidence that he had been the owner of 82 Oker Avenue since 2006. Neil Ogden rented the property from July 2012. Andrew Baxter gave evidence that he had sold caffeine to Neil Ogden. The first transaction was in March 2011. Neil Ogden collected the caffeine in person at a Toby Carvery car park. In total there were about six transactions with Neil Ogden. His father, Stephen Ogden, collected the caffeine on four occasions. The payment method was usually cash. Kevin Marks gave evidence that he was the managing director of a printing company. On 27th July 2009 an order in the name of Neil Ogden was completed. Neil Ogden ordered 3,000 Mass High Protein Weight Gainer labels in three different flavours. This was the last order made by Neil Ogden. PC Miller gave evidence that he was present at the search of 82 and 84 Oker Avenue. At 84 Oker Avenue he found two 1kg bags of dextrose sugar. One was in a kitchen cupboard and the other was on the worktop. A Kenwood mixer with working scales was also found. At 82 Oker Avenue nine plastic bags from a bin liner (which contained traces of caffeine and amphetamine) were found in the kitchen. In the fridge were 20 boxes labelled “Hygetoprin” and three bottles mark “Bacteristatic”.[25]DC Timperley gave evidence that she was one of the officers in the case. She confirmed that there had been a video recording of both searches at Belmont Park and Oker Avenue. DC Lowes gave evidence that he was also an officer in the case. He explained the findings on the laptop. There was a list of names and nicknames along the top. On 30th of October 2011 ‘Workbook 1’ was ‘last accessed’ and there were two entries relating to that:
‘Timber.doc’ and ‘Workbook 1’
. On 19th of January 2012 ‘Workbook 2’ was created and “accessed,”. The Timber’ document did not reveal any suggested drug dealing.[26]Stephen Ogden also gave evidence. His account was similar to that in the original trial. Neil Ogden and David Atkinson did not give evidence.

APPEALS AGAINST CONVICTION

[27]Six matters are raised in the appeals against conviction, the first three of which are challenges to rulings given by HHJ Mooncey:(a) Ruling on abuse of process(b) Ruling on no case to answer(c) Ruling on Bad Character(d) Summing up on s.327 Proceeds of Crime Act 2002(e) Summing up on failing to give evidence(f) A jury irregularity question.

(A) RULING ON ABUSE OF PROCESS

[28]An application was made on behalf of Neil Ogden to stay the indictment as an abuse of process on the grounds that the s.18 search of his home conducted by the police had no proper legal basis and was unlawful. It was further submitted on his behalf that there was mala fides on the part of the police in bringing this prosecution against him. It was submitted that there was a ‘history’ between him and the Derbyshire police and he had become a ‘target’. It was submitted that the police had manipulated the process and conducted an illegal search of his house in order to bring this prosecution and it should be stayed.[29]In written ruling handed down on 4th August 2014, HHJ Mooncey, rejected the defence arguments based on mala fides and an unlawful search and refused to stay the case. Permission to appeal on this ground was refused by the single judge and the application is renewed before us.[30]Mr Reiz filed lengthy detailed written submissions on behalf of Neil Ogden on this issue, including a detailed chronology of the events of 3rd and 4th February and the actions of the police thereafter. We can briefly summarise the thrust of Mr Reiz’s case in two points. First, by the time the police came to conduct the search of Neil Ogden’s home, 11 Belmont Park in Chesterfield, on 4th September 2012, it was clear that Donna Wilson had emphatically denied that Neil Ogden was controlling her as a prostitute, but they nevertheless persisted in the search notwithstanding that there could no longer be said to be “reasonable grounds” for a search within s. 18 of PACE. Second, subsequently the police covered up the true motivations behind the search (which was unearth evidence about his suspected drugs activities in respect of which he had long been unfairly targeted) and notebooks and custody records went missing – and this amounted to a clear abuse of office.[31]Like the Judge, we do not think there is any substance in either point.

THE FACTS

[32]The following summary of the facts leading up to the police search of the Neil Ogden’s home is taken from Mr Reiz’s advice on appeal.[33]On the 3rd February 2012, Neil Ogden’s ex-girlfriend, Donna Wilson, was discharged from Stepping Hill Hospital, Stockport, where she had been treated for mental health problems as an impatient. This began a chain of events which led to the arrest of Neil Ogden, the search of his property and the recovery of articles central to the prosecution case.[34]The statement of Inspector Brettconfirms that the police received anonymous information from staff at the hospital earlier that day. Incident log No 358 records the following entry at 14:10:48:
“This is Stepping Hill hospital – I am concerned for a patient ‘Donna Wilson’ … She has just been discharged today psychotic behaviour which we believe was drug related, we believe she has been forced into prostitution by two males, she asked to be put into a refuge and whilst we were trying to get her a place she received a call from one of the two males threatening her. So she is refusing to go to the refuge and he is due to collect her shortly. We believe she may be going back to her home address... or her Grandmother’s address … Donna is not aware that we are contacting the police.”
[35]At 16:20:29 hours, the log states an enquiry to the hospital revealed: “…Donna left some time ago with two males in VRM S500CCH 5[36]Neil Ogden was stopped by PC Webster driving vehicle registration number S500 CCH shortly before 19:25 hours on the 3rd February. PC Webster states he was looking for the vehicle “having received information that its driver Neil Ogden was carrying drugs for supply. Further information was about the safety and welfare of Donna Wilson who was believed to be in his company”.[37]PC Webster informed Neil Ogden that he had been stopped and detained so he and his vehicle could be searched pursuant to section 23 of the Misuse of Drugs Act 1971. He was then informed that Donna Wilson had been safely located at 24 Eccles Close (her grandmother’s address) and was in the company of a police officer. Upon receiving this information, he arrested Neil Ogden on suspicion of controlling prostitution for financial gain. He states that Neil Ogden was transported to Buxton police station by two colleagues whilst he and PC Hancock carried out the “drugs search”. Mr Ogden arrived at the police station at approximately 22:00 hours. Whilst in custody, £455 cash was seized from him. No action was taken in respect of this at the time. However, at 22:49 hours, PC Farrell further arrested him on the suspicion of money laundering. His stated reasons for seizing the cash and effecting the further arrest was as follows:
“T/SGT Mellor advised me that Ogden was suspected to be involved in the supply of controlled substances in my patrol area and had previously been involved in such activities in the Chesterfield area. T/SGT Mellor also told me that Ogden had an outstanding, court appointed, confiscation order. Therefore based on the information provided by T/SGT Mellor I suspected that this money would likely have been obtained through the supply of controlled substances and this money represented a benefit of this criminal activity.”
[38]The search of 11 Belmont Raod was authorised pursuant to section 18(1) of the police and Criminal Evidence Act 1984 at 21:35 hours by Inspector Brett and began at 00:40 hours on the 4th February. Inspector Brett stated that he authorised the search on the following basis: “I was entirely satisfied that the grounds for the search were met, in that Ogden had been arrested for an indictable offence and that there were reasonable grounds to suspect that there would be evidence relating to the offence Ogden had been arrested for, or evidence of some other indictable offence connected with, or similar to that offence. I expected officers to be searching for evidence such as bank details, financial paperwork and cash.

Analysis

[39]The original information about Donna Wilson came from an independent source: the hospital. The hospital raised two distinct concerns about Donna Wilson as a patient: first relating to prostitution and second relating to drugs. It was clear to the hospital that Donna Wilson’s psychotic behaviour was drugs related; and she had left the hospital with two men in a car, one of whom was Neil Ogden. Donna Wilson was questioned by the police about these matters. She denied being forced into prostitution by Neil Ogden and refused to make a complaint against him. Mr Reiz submitted that, in the light of Donna Wilson’s denial, the police had no proper basis for searching Neil Ogden’s home. We disagree. Donna Wilsons’ refusal to implicate Neil Ogden did not exculpate him from suspicion from either allegation, i.e. controlling prostitution or supplying drugs. Drugs and forced prostitution are not uncommon bedfellows. Mr Reiz’s argument focuses on the former but ignores the latter. Furthermore, it is not uncommon for women who find themselves in such circumstances to refuse to implicate their abuser or keeper. In our judgment, police plainly had “reasonable grounds” to suspect Neil Ogden of being involved in both drugs and/or prostitution and to investigate both matters. There are no arguable grounds for suggesting that the search was not properly authorised and lawful.[40]As to the second point, HHJ Mooncey expressed some concern as to issues raised regarding the police record-keeping. However, he accepted the various explanations given (viz. the loss of the custody record was due to a change in the custody record system) and roundly rejected any suggestion of bad faith or of manipulation of the legal process. We see no reason whatsoever to differ from his view. There is no basis for Mr Reiz’s extravagant submission that there was a ‘flagrant and deliberate breach’ of PACE.[41]For these reasons, we have no doubt that the Judge’s first ruling was correct and we refuse the Applicant’s renewed permission to appeal on this ground.

(B) RULING ON SUBMISSION OF NO CASE TO ANSWER

[42]We turn to HHJ Mooncey’s second ruling made on 16th September 2014 regarding the defence submission of No Case to Answer. The defence argued that the numerous counts based on “conspiracy to convert criminal property” were misconceived because mere possession or physical transfer of the drugs (or tobacco) by or between the Appellants did not amount to offence of “conspiracy to convert criminal property” because it involved no “benefit from criminal conduct”.[43]In a detailed written ruling, HHJ Mooncey rejected the defence submission of No Case to Answer. He ruled that the actions of Neil Ogden, Dean Wilson, Glen Martin and David Atkinson and the other Appellants could amount to the offence of “conspiracy to convert criminal property” and held there was evidence upon which a jury properly directed could convict of these offences.[44]Neil Ogden, Dean Wilson, Glen Martin and David Atkinson challenge the Judge’s adverse ruling on No Case to Answer and challenge his subsequent summing up the meaning of “criminal property” and “conversion” under s.340(3) of POCA (see further below).

The legislation

[45]Section 327 of POCA provides:
“327 Concealing etc (1) A person commits an offence if he— (a) conceals criminal property; (b) disguises criminal property; (c) converts criminal property; (d) transfers criminal property; (e) removes criminal property from England and Wales or from Scotland or from Northern Ireland. (2) But a person does not commit such an offence if— (a) he makes an authorised disclosure under section 338 and (if the disclosure is made before he does the act mentioned in subsection (1)) he has the appropriate consent; (b) he intended to make such a disclosure but had a reasonable excuse for not doing so; (c) the act he does is done in carrying out a function he has relating to the enforcement of any provision of this Act or of any other enactment relating to criminal conduct or benefit from criminal conduct. (2A) Nor does a person commit an offence under subsection (1) if— (a) he knows, or believes on reasonable grounds, that the relevant criminal conduct occurred in a particular country or territory outside the United Kingdom, and (b) the relevant criminal conduct— (i) was not, at the time it occurred, unlawful under the criminal law then applying in that country or territory, and (ii) is not of a description prescribed by an order made by the Secretary of State. (2B) In subsection (2A) “the relevant criminal conduct” is the criminal conduct by reference to which the property concerned is criminal property. (2C) A deposit-taking body that does an act mentioned in paragraph (c) or (d) of subsection (1) does not commit an offence under that subsection if— (a) it does the act in operating an account maintained with it, and (b) the value of the criminal property concerned is less than the threshold amount determined under section 339A for the act. (3) Concealing or disguising criminal property includes concealing or disguising its nature, source, location, disposition, movement or ownership or any rights with respect to it.”
[46]We set out for convenience the pertinent parts of the definition section of POCA, section 340:
“340 Interpretation (1) This section applies for the purposes of this Part. (2) Criminal conduct is conduct which— (a) constitutes an offence in any part of the United Kingdom, or (b) would constitute an offence in any part of the United Kingdom if it occurred there. (3) Property is criminal property if— (a) it constitutes a person's benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly), and (b) the alleged offender knows or suspects that it constitutes or represents such a benefit. (4) It is immaterial— (a) who carried out the conduct; (b) who benefited from it; (c) whether the conduct occurred before or after the passing of this Act. (5) A person benefits from conduct if he obtains property as a result of or in connection with the conduct. (6) If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage. (7) References to property or a pecuniary advantage obtained in connection with conduct include references to property or a pecuniary advantage obtained in both that connection and some other. (8) If a person benefits from conduct his benefit is the property obtained as a result of or in connection with the conduct. (9) Property is all property wherever situated and includes— (a) money; (b) all forms of property, real or personal, heritable or moveable; (c) things in action and other intangible or incorporeal property. (10) The following rules apply in relation to property— (a) property is obtained by a person if he obtains an interest in it; (b) references to an interest, in relation to land in England and Wales or Northern Ireland, are to any legal estate or equitable interest or power; (c) references to an interest, in relation to land in Scotland, are to any estate, interest, servitude or other heritable right in or over land, including a heritable security; (d) references to an interest, in relation to property other than land, includes references to a right (including a right to possession).” (b) would constitute an offence in any part of the United Kingdom if it occurred there. (a) it constitutes a person's benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly), and (b) the alleged offender knows or suspects that it constitutes or represents such a benefit. (a) who carried out the conduct; (b) who benefited from it; (c) whether the conduct occurred before or after the passing of this Act. (a) money; (b) all forms of property, real or personal, heritable or moveable; (c) things in action and other intangible or incorporeal property. (a) property is obtained by a person if he obtains an interest in it; (b) references to an interest, in relation to land in England and Wales or Northern Ireland, are to any legal estate or equitable interest or power; (c) references to an interest, in relation to land in Scotland, are to any estate, interest, servitude or other heritable right in or over land, including a heritable security; (d) references to an interest, in relation to property other than land, includes references to a right (including a right to possession).”

Defence submissions

[47]Mr Reiz’s main submission can be briefly summarised as follows. Whilst possession of the drugs is a criminal offence, it is not an offence from which it can be said there is a “benefit”. The only criminal conduct which gives rise to a “benefit” is the sale of drugs for cash. Mere possession does not amount to a “benefit from criminal conduct”. Only once a drugs sale had taken place would a “benefit” accrue in the form of cash which would become criminal property in the vendor’s hands.[48]Mr Reiz relied upon the decision in R v. Loizou [2005] EWCA Crim 1579, a case concerning the offence of “transferring criminal property” contrary to s. 327(1) and s. 329(1) of POCA. He relied in particular on the following passage in the judgment where Clarke LJ was seeking to illustrate the principle that, if the property is not criminal at the time of the transfer, the offence is not committed:
“32. Take this example. Suppose I receive pay as a judge in cash, that cash is not criminal property. Suppose I use that money to pay Hughes J. for a car which I know he has stolen. In that event I, of course, commit the offence of receiving goods knowing them to be stolen. I do not, however, commit the offence of transferring criminal property because the property I am transferring, namely the money which I earned as a judge, is not criminal property. Of course, in the hands of Hughes J. as the seller of the stolen car, the cash is criminal property because it constitutes “a person's benefit from criminal conduct” within s.340(3)(a) which he knows or suspects constitutes such a benefit within s.340(3)(b) . Does Hughes J. commit an offence under s.327(1) ? The answer is plainly no, because he has not concealed, disguised, converted or transferred criminal property. He has simply received what is now criminal property and retained it. Section 327(1) does not create an offence of receiving criminal property.”

Analysis

[49]There are two elements which have to be established in order for a person to be found guilty of crime of “converting criminal property” under s. 327(1) of POCA. First, the property in question must be “criminal property”. Second, the “criminal property” must have been “converted”. HHJ Mooncey held that both elements were potentially present and there was evidence upon which the Appellants could be convicted of conspiracies to effect s.327(1) offences. In our view, HHJ Mooncey’s decision was correct and his reasoning flawless.[50]The following points are pertinent. First, the words “criminal property” in s.327 of POCA have a broad meaning. The definition section of POCA, s.340(3) defines “criminal property” as comprising “a person’s benefit from criminal conduct”. S.340(2) defines “criminal conduct” as conduct which constitutes an offence in the UK. S.340(4) makes it clear that it is immaterial(a) who carried out the qualifying conduct,(b) who benefited from it, or(c) when the conduct in question occurred.[51]Second, contrary to Mr Reiz’s submission, the question of “benefit” is relevant to the first element but not the second. Mr Reiz confuses or elides the two. In order to prove the first element, i.e. to demonstrate that the property in question is “criminal property”, it is necessary pursuant to s.340(3) to prove the it constitutes a person's “benefit” from criminal conduct. In order to prove the second element, however, i.e. to demonstrate that the criminal property has been “converted”,it is not necessary to prove any “benefit” accrued from the conversion. The same goes for the other offences under s.327 (e.g. “conceals…disguises… removes criminal property”). The Crown did not need to show that Neil Ogden derived a “benefit” from his “conversion” of the drugs.[52]Third, illegal drugs by their nature always represent “criminal property”. The reason is that the process of manufacturing, trafficking, importing, distributing, supplying and selling Class A, B and C drugs always necessarily involves a “benefit” for one or more of the individuals involved. Illegal drugs always, therefore, plainly fall within the definition of s.340. It is a crime knowingly to possess illegal drugs (similarly, counterfeit or stolen tobacco). As HHJ Mooncey correctly observed in his judgment under the heading “Criminal Conduct”:
“28. The workbooks is said to show accounts that are being kept by [Neil Ogden] of transactions taking place in matters that are illegal and necessarily arise from criminal conduct. [Neil Ogden] is said to be purchasing large quantities of drugs. [Neil Ogden] has arguably purchased or will pay for the drugs he has obtained from GEE. When he acquired the drugs they are criminal property. By the very nature of being illegal he is dealing in criminal property. He is involved in criminal conduct. “Receiving” drugs is not a criminal offence as such but it does give rise to “possession” of the drugs if the person is aware of their nature thus a criminal offence does arise. To knowingly receive drugs and possess them is a criminal offence.”
[53]Fourth, the term “conversion” (not defined in the Act) bears its plain, ordinary meaning in this context (see cases such as R v. Montila [2004 UKHL 50, R v. Middleton [2008] EWCA Crim 233, R v. Fasal [2010] 1 WLR 694, R v. Martin [2012] EWCA Crim 902 and R v. Rogers [2014] EWCA Crim 1680. As HHJ Mooncey again correctly observed:
“34. … It is not necessary for criminal property to change its’ form in order to convert under the PoCA provisions. In Fazal, merely allowing his account to receive, retain and withdrawal facilities were said to be within the ambit of the converting. If the form has to be changed then arguably one can look at the proposition that a large quantity of drugs moved to Gee with a particular value attached. Some of them then moved to [Neil Ogden] with a different value attached. [Neil Ogden] has then moved some of them on to others and it is reasonable to infer has added to the price to make profit arguably changing form if it be necessary.”
[54]Fifth, the obiter dicta illustration of Clarke LJ in R v. Loizou (cited supra) should, with respect, be treated with caution. As Professor David Ormrod observed in the Criminal Law Review (2005):
“Hughes J. certainly does not commit an offence in relation to the cash received since that did not, at the time of/ immediately before the transfer, constitute criminal property. But does not Hughes J. commit an offence under s. 327 by his transfer of the criminal property (the stolen car which directly represents the benefit of his crime)? What is more, if Clarke L.J. knows that Hughes J. has stolen the car, by purchasing it from him, is Clarke L.J. not also committing a money laundering offence by assisting Hughes J. in the commission of a money laundering offence, namely, the transfer of the stolen car? It is submitted that the court’s example ought to be treated with caution.”
[55]Sixth, the Appellants in this case are charged not merely with converting criminal property contrary to s.327 but with “conspiracy” to convert criminal property contrary to s.327 of POCA. The Crown’s case is that Neil Ogden was in the business of selling drugs wholesale to the co-defendants and that each sale agreement amounted to a “conspiracy” to convert criminal property, the value of each conspiracy specified in the particular count being taken directly from his workbooks (Counts 4, 7, 8, 9, 10, 12, 15, 17, 18 and 25). In our view, this analysis is plainly correct. Where A and B make an agreement for the sale of illicit drugs, they are both guilty of conspiracy to convert or transfer criminal property because they are both involved in arranging, agreeing and effecting the conversion or transfer. In Clarke LJ’s example (supra), therefore, both actors would be guilty of conspiracy to convert or transfer criminal property, because they both play a part in ensuring that the stolen car is transferred.[56]Seventh, we reject Mr Reiz’s submission that the Crown’s construction ‘cannot be correct’ because otherwise every person found in possession of minor quantities of illicit drugs even for their personal use is at risk of being charged with, and found guilty of, money-laundering. HHJ Mooncey rightly dismissed this view as ‘alarmist’. In our judgement, he was right to do so. Whilst, as Mr Blackburn acknowledged, technically every person who buys illicit drugs even for their own personal use may also be guilty of an offence under s.327, the spectre of the authorities habitually charging the latter generic offence rather than the specific offence of possession is unreal. There would be no forensic advantage in doing so and some considerable disadvantages. We have no doubt that good sense will prevail and that prosecutors will only resort to charging the generic offence in appropriate circumstances in accordance with good prosecuting practice.[57]We should make it clear that we regard the present case as a paradigm example of when it is appropriate for the Crown to charge the generic rather than the specific offence. As Mr Blackburn explained, the circumstances of the present case were unusual. The police found substantial documentary evidence that Neil Ogden was heavily involved in supplying drugs on a wholesale basis to the co-defendants; however, the Crown faced the difficulty of proving the type and quantity of drugs involved. Accordingly, it was appropriate for the Crown to charge the generic of conspiracy to convert criminal property rather than specific drugs supply offences and there was no abuse in this case.[58]As Lord Toulson explained in R v. GH [2015] 2 Cr App R 12, there must be a proper public purpose in charging under s.327 or 329 of POA rather than the specific offence: “48. …. A thief if not guilty of acquiring criminal property by his act of stealing it from its lawful owner, but that does not prevent him from being guilty thereafter of an offence under one or other, or both, of [sections 327 and 329 of POCA] by possessing, using, concealing, transferring it and so on. The ambit of those sections is wide.

(C) RULING ON BAD CHARACTER

[59]A ground of appeal was raised on behalf of Dean Wilson against the Judge’s ruling against him on bad character. In paragraph 1(a) of his Grounds of Appeal, complaint was made that the trial Judge wrongly and unfairly permitted the Crown to adduce evidence of the finding of digital scales and numerous resalable plastic bags at his address on 9th October 2012 some 8 months after the end date of the alleged conspiracy. The Judge permitted this evidence to go in under s. 101 (1) (d) Criminal Justice Act 2003. Although he did not articulate this in terms in his ruling, it is clear that he did so the basis of “propensity”. In the course of argument before us, however, Mr Reiz abandoned this ground of appeal and so we say no more about it. (D). Summing up on s.327 Proceeds of Crime Act 2002[60]Neil Ogden, Dean Wilson, Glen Martin and David Atkinson submitted that the Judge misdirected the jury in the original trial as to the meaning of “criminal property” and what could amount to “conversion” for the purposes of s.327(1)( c) Proceeds of Crime Act 2002.

The Judge said this in his summing up regarding the offence of “converting criminal property”:

“Property has to be criminal property (in your view) before it can be converted. Any dealings in criminal property are potentially capable of being classed as ‘converting’. It has special meaning, but conduct that changes the state of the thing – for want of a better word – is capable of being classed as ‘converting’. Examples of conversion include selling, transferring, lending, dividing up, giving, creating a debt, passing money (or promise of money), earnings, favours in some other form are all capable of being called ‘converting. If two people decide they are going to get into a business of dealing in counterfeit banknotes, let’s say, they are potentially conspiring to convert criminal property. The banknotes being forged are criminal property, as they are forgeries. The person who obtained them knows they are counterfeit. The person who buys them (in cash or on credit) knows that, too. Even if they are given to charity, if the recipient knows the criminal nature of the enterprise, then there is a potential for guilt.”
[62]Mr Reiz submitted that the Judge’s definition of the offence of “converting criminal property” was too wide. We disagree. For the reasons given above, in our view, the Judge correctly understood the law and his summing up on the meaning of “converting criminal property” was admirably clear and succinct.

(E) SUMMING UP ON FAILURE TO GIVE EVIDENCE

[63]The Judge gave the jury directions as to how to approach the failure of various Appellants to give evidence. Complaint is made that the trial judge failed to warn the jury about the danger of speculation and the risk of convicting based on guess work. It is worth observing, in passing, that at least one other Appellant who appeals against conviction and who also did not give evidence (Gavin Logan), advances no similar complaint.[64]The Judge directed the Jury that a defendant has an absolute right not to give evidence; that the burden of proof rests throughout on the Prosecution, and that an inference drawn from the fact that a Defendant did not give evidence cannot by itself prove guilt.[65]What this submission overlooks is the fact that at the beginning of the summing up, under the heading ‘Separation of roles’ the Judge directed the Jury in terms that: “You must decide the case on the evidence alone and must not speculate, for example about what other evidence there might have been, what a witness might have said if he or she had been called or asked a particular question”.[66]In our judgement, whilst the Judge could arguably have given a slightly fuller direction as to this aspect of the case, his failure to do so in no way rendered his direction open to serious criticism or, indeed, renders the verdict unsafe. We are satisfied that, in the light of the totality of the evidence at the first and second trials (see above), it could not be suggested that these convictions were either unsafe or unsatisfactory.

(F) ALLEGED JURY IRREGULARITIES

[67]Neil Ogden applies for leave out of time to pursue two additional grounds of appeal by way of alleged jury irregularities alleged to have occurred during the first trial. First, he asserts that evidence has come to light that, at the first trial, one of the jurors may have been a retired police officer notwithstanding an agreement or understanding that police officers would not be appointed to the jury. Second, he asserts that evidence has come to light that the Jury may have subjected to undue pressure. Both these assertions are said to be based on information imparted to Neil Ogden by a fellow prisoner named Danny Moore.[68]As to the first point, Mr Reiz accepts that there is no independent evidence to support the assertion. We have examined the transcript of the trial with care. At the beginning of the trial, the defence raised an issue as whether “all jurors who work in law enforcement or have a close relative who works in law enforcement” should be excluded from the panel (Volume IX, p. 1H). The ostensible basis for this suggestion was that the defence was going to involve certain attacks upon the bona fides of police officers, in particular in relation to their search of Neil Ogden’s home. It is instructive that no mention was made by the defence of retired police officers.[69]In the event, the Judge did not formally rule on the submission, but he did agree that the name of a woman who it was known was married to a police officer in Leicestershire should be removed from the ballot. Further, there is also reference in the transcript to the Judge observing in relation to another prospective juror who was both a lecturer in charge of 100 students and a retired policeman that this “potentially could be an issue that could have caused difficulties in any event”. However, in the event, his name too was removed from the ballot because of his work commitments.[70]It is well established that no risk of bias arises from the presence of a police officer on a jury merely because an officer’s evidence is in dispute at the trial (R. v. Abdroikov [2008] 1 Cr. App. R. 21). Accordingly, in our judgement, even if it could be established that there was indeed a retired police officer on the jury in this case, there is no basis for asserting that such an individual should have been excluded from the jury in this case.[71]As to Mr Reiz’s second point, it is axiomatic that, save in exceptional circumstances, inquiry into jury deliberations is “forbidden territory” (per Gage LJ in R v. Adams [2007] 1 Cr App R 449). Danny Moore claimed that the retired police officer exerted “significant pressure” to convict upon the rest of the jury, which led to a number of female jurors being in tears when the last verdicts were returned. He further stated that his mother had been the foreperson of the jury. However, there is no independent evidence to support these assertions. Moreover, there is no suggestion of any complaint being received at the time from any member of the jury regarding bullying or anything untoward having happened in the jury room. In the absence of such evidence, there is no proper basis for the Court even countenancing such an inquiry. We reject Mr Reiz’s surprising submission that that there should nevertheless be an investigation in order to determine ‘whether there is an arguable appeal’. We note that the Appellant has failed to make an application under s.23 of the Criminal Appeal Act 1968. APPEALS AGAINST SENTENCE General observation

APPEALS AGAINST SENTENCE

[72]This case raises the not uncommon sentencing problem of the charges in question potentially straddling two sets of sentencing guidelines.[73]The Appellants were convicted of converting criminal property contrary to s.327 of POCA in the context of the drug dealing. Several Appellants appeal the sentences imposed for the s.327 offences. The question arose as which sentencing guidelines were applicable, the Money Laundering Sentencing Guidelines or the Drugs Sentencing Guidelines. The prosecution argued that this was essentially a case about drug supply; the only reason why charges were preferred under s. 327 of POCA was because of evidential difficulties in identifying with sufficient clarity which type of drugs were involved in individual cases; and, accordingly, the Drugs sentencing guidelines rather than the Money Laundering sentencing guidelines were applicable. The significance of the point is that the starting point and range of sentences is markedly lower in the case of Money Laundering offences than it is in relation to Drug supply offences. This problem was appreciated by those responsible for drafting the Money Laundering sentencing guidelines, who directly addressed it by including the following important guidance: “To complete the assessment of harm, the court should take into account the level of harm associated with the underlying offence to determine whether it warrants upward adjustment of the starting point within the range, or in appropriate cases, outside the range. Where it is possible to identify the underlying offence, the court should have regard to the relevant sentencing levels for that offence”.[74]As will be apparent below, we have come to the conclusion that the sentences imposed by the Judge appeared to be too heavily weighted towards the sentences indicated under the (heavier) Drugs Sentencing Guidelines rather than the Money Laundering sentencing guidelines. To this extent, in our judgement, the Judge fell into a degree of error. We have also factored in the difficulty in assessing with any degree of accuracy or precision the quantity of drugs that were in involved in any individual case. We note that the sentencing judge had the advantage of being the trial judge. We would suggest, however, that fuller sentencing remarks in the present case would have been helpful.[75]We turn now to consider each of the cases of the Appellants who have appealed their sentences individually. (1). Sentence appeal by Glen Martin[76]Glen Martin is aged 49. He has 6 previous court appearances for 20 offences, but nothing of any relevance. He stayed out of trouble completely between 1987 and 2012. He has never previously served a sentence of imprisonment. He had been in work for 12 years for Chesterfield Borough Council and had the benefit of several good references which were placed before the court and which we have read. He was sentenced to 3 years imprisonment following conviction on count 7, which involved £7,010.[77]In his sentencing remarks, the Judge did not refer to the Sentencing Guidelines at all. If the money laundering guidelines were to apply in his case, it would be a Category 6 case (under £10,000); if culpability A, the starting point would be 12 months (range 26 weeks to 2 years); if culpability ‘B’, the starting point would be a high level community order (range, a low level community order to 12 months). If, on the other hand, the Drug guidelines applied, the penalty would depend on whether this was correctly categorised as a category 3 or category 4 case; category 3 applies to cannabis of a weight of 6 kilos; category 4 to a weight of 100 grams. The agreed evidence in the case of this Appellant was that the sum of money involved (£7,010) would have equated to approximately 2 kilos. Accordingly, this case arguably falls between category 3 and 4. For category 3, the starting point based on a ‘significant role’ is 4 ½ years (range 3 ½ to 7 years); for category 4, the starting point is 3 ½ years (range 2 to 5 years). If one takes the middle starting point figure between the two categories, this equates to a sentence of 4 years. It will be apparent that this is a figure significantly greater than those above in relation to money laundering offences.[78]In our judgement, the sentence imposed on Glenn Martin of 3 years imprisonment on Count 7 was manifestly excessive and a figure somewhere between the two guidelines would meet the justice of his particular case. Taking into account this Appellant’s personal mitigation, we have concluded that the appropriate sentence so far as he is concerned is one of 2 years imprisonment. To that extent, his appeal will be allowed. (2). Sentence appeal by David Atkinson[79]David Atkinson is aged 48. He has 11 previous court appearances for 35 offences. His most recent conviction was in May 2008 for 2 offences of possession of cannabis with intent to supply for which he received a sentence of 2 years imprisonment (the only sentence of imprisonment to which he has previously been sentenced). This is clearly an aggravating feature in his case. He received a total sentence of 7 years imprisonment, made up as follows:(a) 5 years on count 5 (a conspiracy offence under s. 327 P.O.C.A.) which involved £87,500; and(b) 2 years concurrent with each other but consecutive to the above for offences of conspiracy to supply cannabis (count 20, 182 grams-found in a shed in Hognaston), and possession of cannabis with intent to supply (count 22, 2 kilos- found in his kitchen at the time of his arrest).

Count 5

[80]If the money laundering guidelines apply, the starting point under category 5 (£10-£100k) is 3 years, if culpability A; if culpability B, the starting point is 1 ½ years (range 26 weeks to 3 years). Under the drugs guidelines, category 3 applies to 6 kg of cannabis, and category 4 to 20 grams. It is unclear as the precise quantity of cannabis that £87,500 could purchase. However, in our judgement, the weight suggested by defence counsel of 2.8 kilos cannot possibly be correct given that that we were told that in the case of the Appellant, Glenn Martin, £7,010 would have involved 2 kilos. Accordingly, in our view, the drug guidelines would indicate that this is a category 3 case. In the case of a leading role for a Category 3 case, the starting point is 4 years (range 2 ½ to 5 years); for a significant role the starting point is 2 years (range 1 ½ to 3 years). Given the amount involved in this Appellant’s case, the distribution by him in some capacity or another of over £87,000 worth of cannabis would justify a conclusion that he had a leading role in so far as that distribution was concerned.[81]In his case too, taking a figure somewhere between the two sets of guidelines, we have come to the conclusion that the appropriate sentence for this offence was one of 4 years imprisonment.

Counts 20 and 22

[82]The defence realistically accepted the propriety of consecutive sentences on Counts 20 and 22. With regard to count 22 (2 kg. of cannabis), the guidelines indicate a starting point of 1 year (range 26 weeks to 3 years) in the case of a significant role. Bearing in mind that this Appellant had a relatively recent conviction for an identical offence, in our judgment the submission that a sentence of 2 years imprisonment for this offence was manifestly excessive is wholly untenable.[83]Count 20 concerned a much lesser weight of 182 grams. Here, in our view, the defence argument has greater force. We are persuaded that we should reduce the sentence to 12 months imprisonment, although, given that this was a concurrent sentence, this will not affect the overall length of sentence in this Appellant’s case.[84]The overall effect of our decision is that the total sentences in this case will be reduced from 7 to 6 years imprisonment. To this extent, David Atkinson’s appeal against sentence is allowed. (3). Sentence appeal by Stephen Ogden[85]Stephen Ogden is aged 67. He is effectively a man of good character - his last conviction was in 1974. He was sentenced to 4 years imprisonment for conspiracy to supply amphetamine (count 2). He assisted his son Neil Ogden in a number of ways: by the collection of caffeine; obtaining cutting paraphernalia; storing amphetamine and the cutting of amphetamine in his kitchen. The defence accepted in their grounds of appeal that this was a Category 1 case. It was submitted on his behalf that his participation fell between significant and lesser role, but in our judgment, the trial Judge, who heard the evidence in the case, was in the best position to judge and was amply justified in concluding this was a significant role, having regard to what this Appellant did and what he knew as to what was going on and as to the scale of the operation.[86]Under the guidelines, a significant role attracts a starting point for a category 1 offence of 5 ½ years (range 5 to 7 years). In our judgement, this Appellant’s mitigation, namely his age (67), his effective good character and the fact that he was a carer for his mentally ill wife, has been adequately reflected in the reduction in his sentence from the figures in the guidelines to 4 years. We do not regard the argument that his sentence was manifestly excessive as being sustainable, and his appeal is accordingly dismissed. (4). Sentence appeal by Kevin Brough[87]Kevin Brough is aged 56. He had 4 previous convictions, 3 of which were many years ago and irrelevant. However, the most recent conviction represents a significant aggravating factor; in 2006 he was sentenced to 5 years imprisonment for possession of heroin with intent to supply and conspiracy to supply heroin.[88]At the retrial he pleaded guilty to Count 6, which involved converting criminal property in the sum of £13,600 in respect of which the Judge gave him a 5% discount and sentenced him to 3 years 9 months. In addition he was sentenced to 2 years consecutive for possession of cannabis with intent to supply and conspiracy to supply cannabis, offences of which he was convicted at the first trial. (No separate penalty was imposed in respect of a handling offence). His total sentence therefore was 5 years 9 months.[89]His appeal though is limited to the 3 years 9 months in respect of count 6, which, on the prosecution case was the value of cannabis supplied to him by Neil Ogden. By reference to the money laundering guidelines, his offence is at the bottom end of the scale for category 5, indicating a starting point of 3 years (range 1.5 to 4 years) in the case of culpability A, with a starting point of 1.5 years (range 26 weeks to 3 years) in the case of culpability B. The drug guidelines for category 3 indicate that a leading role attracts a starting point of 4 years (range 2½ to 5 years); a significant role attracts a starting point of 2 years (range 1 ½ to 3 years).[90]In this Appellant’s case we have come to the conclusion, taking a figure somewhere between the 2 sets of guidelines , that an appropriate sentence for this offence would have been one of 2 years 9 months imprisonment, taking into account the amount involved as well as his previous conviction. Given that he does not pursue any appeal in relation to the sentence imposed on the other offences, the end result in his case is a reduction in his total sentence from 5 years 9 months to 4 years 9 months imprisonment. To that extent, Kevin Brough’s appeal against sentence is allowed.