Trought & Ors v R. [2017] EWCA Crim 1701

[2017] EWCA Crim 1701Case Nos: 201601939, 201604387, 201604187, 201602090,201602071, 201602025 & 201601941
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM KINGSTON-UPON-THAMES CROWN COURT
Her Honour Judge Coello
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31/10/2017
Before
LORD JUSTICE HAMBLENMR JUSTICE JEREMY BAKERHIS HONOUR JUDGE TOPOLSKI QC(Sitting as a Judge of the CACD)
Between
(1) Frazer TroughtAppellants(2) Nader AssafAppellant(3) David LawalAppellant(4) Vladimir KanaAppellant(5) Fadi JameelAppellant(6) Edward LightfootAppellantReginaRespondent
Orlando Pownall QC (instructed by Hallinan Blackburn Gittings & Nott LLP) for First AppellantRishi Nathwani (instructed by Goldkorns) for Second AppellantRobert Tolhurst (instructed by Shearman Bowen and Co) for Third AppellantEmma Stuart-Smith (instructed by Edward Fail Bradshaw & Waterson) for Fourth AppellantSusan Anne Rodham (instructed by Goldkorns) for Fifth AppellantNicholas Barraclough (instructed by Saunders Solicitors) for Sixth AppellantHugh Forgan (instructed by the CPS) for RespondentHearing Hearing date : 20 October 2017
Judgment ApprovedLORD JUSTICE HAMBLEN :Introduction
[1]On 20 November 2015 in the Crown Court sitting at Kingston-Upon-Thames the appellant, David Lawal, pleaded guilty to two counts of conspiracy to supply a controlled drug of Class A (cocaine) (counts 1 and 5) for which he was sentenced by Her Honour Judge Coello (“the judge”) on 18 April 2016 to 10 years imprisonment concurrent on both counts.[2]Also on 20 November 2015 the appellant, Vladimir Kana, pleaded guilty to two counts of conspiracy to supply a controlled drug of Class A (cocaine) (counts 2 and 3) for which he was sentenced by the judge on 16 April 2016 to 7 years imprisonment concurrent on both counts.[3]On the same day the appellant, Edward Lightfoot, pleaded guilty to conspiracy to supply a controlled drug of Class A (cocaine) and possession of criminal property (counts 5 and 9) for which he was sentenced by the judge on 18 April 2016 to 6 years imprisonment on count 5 and 12 months concurrent on count 9.[4]On 17 March 2016 the appellant, Fadi Jameel, was convicted by a majority (10-2) of conspiracy to supply a controlled drug of Class A (cocaine) (count 2) for which he was sentenced on 18 April 2016 to 6 years imprisonment by the judge, who had been the trial judge.[5]On the same day the appellant, Frazer Trought, was convicted (unanimously on counts 1 and 6; by a majority (10-2) on counts 2 and 4) of two counts of conspiracy to supply a controlled drug of Class A (counts 1 and 2), one count of conspiracy to supply a controlled drug of Class B (cannabis) (count 4) and one count of possession of criminal property (count 6). On 18 April 2016 he was sentenced by the judge to 18 years 9 months imprisonment on each of counts 1 and 2; 4 years concurrent on count 4 and 5 years concurrent on count 6.[6]Co-accused Christopher Perestrero was convicted by the jury of counts 1 and 2. He pleaded guilty to counts 4 and 7. On 18 April 2016 he was sentenced by the judge to a total of 13 years imprisonment.[7]Oana Butnariu was acquitted by the jury of counts 2 and 3.[8]On 5 September 2016 the appellant, Nader Assaf, was convicted unanimously on re-trial of conspiracy to supply a controlled drug of Class A (cocaine) (count 2). On 5 September 2016 he was sentenced by the judge to 12 years imprisonment.[9]On 30 March 2015, before the arrest of any of the other accused, Kevin Walshe pleaded guilty to count 1. He was sentenced by a different judge to 3 years 9 months imprisonment.[10]Subsequent to the trials, Thanas Qarri was arrested. On 17 February 2017 he pleaded guilty to counts 1 and 2. On 28 April 2017 he was sentenced by the judge to 11 years imprisonment concurrent on both counts.

The appeal

[11]Trought appeals against conviction, leave having been given by the single judge on grounds 1-3 only. He also renews his application for leave to appeal on ground 4 and seeks permission to put forward a new ground for which he requests an extension of time.[12]Trought also appeals with leave of the single judge against sentence, as does Assaf, Lawal, Kana, Jameel and Lightfoot. The outline facts 13. Overview

The outline facts

[13]The prosecution case was that the defendants, together with others, were involved between 1 May 2014 and 10 July 2015 in a highly sophisticated network of conspiracies to supply drugs, primarily cocaine but also cannabis. High purity cocaine, obtained close to the source, was sold in bulk. According to the prosecution the central figure was the appellant, Trought, who was close to the importer, Qarri, an Albanian national who lived mainly in Italy. Trought, whose bank accounts showed large quantities of cash deposits, was assisted by others including the co-accused, Perestrero, who acted as his right hand man. Counts 1 and 6[14]In 2014 Walshe, a black cab taxi driver, got into debt to Trought. To repay it, said the prosecution, he acted as a courier for Trought and Qarri and delivered kilogram consignments of cocaine to the appellant, Lawal, who was alleged to be a significant purchaser of cocaine.[15]On 29 September 2014 Trought travelled to Wandsworth. He drove close to Lawal’s home address and between 12.03pm and 13.26pm cell site evidence showed that his telephone remained in the vicinity of Lawal’s home. At 14.13pm, having returned to his home in Acton, he took a photograph of a large bundle of cash (approximately £200,000) and some gun cartridges. He was also at the time in contact with Qarri. It was the prosecution’s contention that Trought had travelled to Lawal’s address to collect the money which represented payment by Lawal for 5kg of cocaine.[16]On 15 October 2014 Walshe was observed driving to St John’s Wood where a male with an empty bag got into his cab. When the male exited the bag appeared to be full. Thereafter, Walshe travelled to Rochester Row SW1 and took a bag into an address. He then travelled to SE1 London and was observed acting in a manner, said the prosecution, consistent with delivering cocaine to an individual called Ryan Seeburun. In the period from 27 October until 6 November 2014, when Walshe was arrested, Trought, Walshe, Lawal and Qarri obtained and began using newly acquired unregistered phones to contact one another. These were said by the prosecution to be “dirty” phones and all of these phones ceased use after Walshe’s arrest on 6 November 2014. The prosecution attributed one of these dirty phones (7580) to Trought (he denied any use of it). This phone was heavily involved in the conspiracy. Evidence showed that the phone was consistently co-located with Trought’s registered phone (5482) and there was no evidence at all of any calls being made between the two of them. Moreover, the prosecution evidence showed that the 7580 phone travelled everywhere Trought went, that its first and last use each day connected to the mast nearest his home, that it had been used to make a call to his partner, and that Perestrero was the person called most often by the phone.[17]On 2 November 2014 Walshe asked Qarri by text for “Hammersmith’s new number”. Hammersmith said the prosecution was Trought because he used to reside in the area. Walshe was sent the 7580 number.[18]On 3 November 2014 Walshe sent identical text messages to Qarri and Trought (to the 7580 number) “what’s the plan for tomorrow”. Qarri replied by sending Walshe a postcode in Romford. Trought replied by sending the number of Lawal’s dirty phone.[19]On 5 November 2014 there was a lot of mobile phone traffic between Perestrero’s phone and 7580, and between Walshe’s dirty phone, Qarri and 7580. Walshe also sent text messages to Qarri and 7580 that read “what’s the plan tomorrow mate”.[20]On 6 November 2014 Trought replied “we waiting” before Qarri replied “same place mate”. Walshe then sent a text to Lawal “I’m coming to see you at 1pm mate”. Walshe, Trought, Qarri and Lawal kept in contact with each other throughout the day until at 13.22pm Walshe entered the car park in Wandsworth next to Lawal’s home address. Walshe was arrested. A search of his vehicle revealed 5kg of very high purity cocaine (82%) in the boot. In reply to caution he said:
“a bloke asked me to take it for him, I met him 2 weeks ago, I thought it was probably drugs”
. He was placed in a police car and made an unsolicited comment:
“Look I’m working off a debt - something went wrong for me, this has been going on for 6 months, I’d bloody nearly paid it off”
. At trial the prosecution successfully adduced evidence of these comments. Walshe was subsequently interviewed. Attrial an application by Trought to adduce this interview was refused.[21]A later search of Walshe’s home address revealed two pieces of paper notes setting out, said the prosecution, the debt Walshe owed to Trought. One began “Frazer Work Debt is £7,150” before listing units delivered or returned together with figures. The other began “13 units for Frazer £3,250 2 Albi £1,000” and then “Debt is £7,150 - £4,250. Debt now is £2,900 as of 26/10/14”. Albi, said the prosecution, was a reference to Qarri on the basis of his Albanian nationality. This was followed by further deductions on the 28 October 2014 and the words “debt now £2,100”. The prosecution said unit was a term for a kilogram of cocaine. At trial an application by Trought to exclude these notes was refused. Count 2[22]On 1 June 2015, said the prosecution, Trought was involved in collecting cocaine from the appellant, Kana, and Kana’s girlfriend, Butneriu. It was alleged that Trought’s directions were carried out by Perestrero and the appellants, Assaf and Jameel.[23]At 10.33am on 1 June Perestrero received by text message from Assaf of a postcode for an address, 11 Winchester Street SW1. At 10.44am that same postcode was sent from a telephone in Italy to one seized from the vehicle in which Butneriu and Kana were later arrested. Further texts were sent and received between Perestrero and the Italian phone relating to times and vehicles. At 13.06pm Perestrero asked the Italian phone for a code and was told “Code redbull”. The code was also sent to the phone seized from Butneriu and Kana. Butneriu and Kana drove to and parked outside 11 Winchester Street. After approximately 6 minutes Jameel approached the passenger window. He appeared to say something and got into the rear passenger seat. All three were arrested soon after. The vehicle was searched and 1kg of high purity cocaine (80%) was found concealed within a void behind the rear passenger seat.[24]As to Trought’s alleged involvement in this conspiracy the prosecution relied upon two calls on 1 June 2015, one from Perestrero to Trought’s registered phone early in the morning which did not connect, and a second from Trought at 10.44am returning the call. The return call was some 45 seconds in duration. At 10.44am Perestrero was sent a text by Qarri and at 10.45am Perestrero sent a text to Assaf “I’ll give you the heads up when on way, not long”. The prosecution contended that the two calls had to be seen in context: telephone evidence showed very heavy volumes of calls between Trought and Perestrero and observation evidence showed them repeatedly travelling together and involved in joint meetings with other men convicted of cocaine supply. At trial Trought unsuccessfully made a submission of no case to answer on this count. Count 3[25]Following Kana’s and Butnariu’s arrests, keys which opened 25 Centurion House, 149 Station Road were seized from Butnariu. A search of the property where they had been living revealed 1kg of cocaine of high purity (81%) in the main bedroom. Also discovered were scales with traces of cocaine, cash, and other general items including tape, cling film and knives. Count 4[26]On 1 June 2015 Perestrero was arrested (for count 2). A search of his home address revealed 5kg of cannabis. It was the prosecution’s case that Trought was involved in this conspiracy based on a series of discrete pieces of circumstantial evidence. On 27 March 2014 an email thread, forwarded to Trought by an individual called Ms. Adi Lev, included a price list for different strains of commercial cannabis together with attachments showing details of varieties, yields, flowering times and heights of cannabis plants. On 24 October 2014 Trought took a photograph of a commercial cannabis growing operation some 45 minutes after making a telephone call to Perestrero. On 22 March 2015 Trought and Perestrero flew to Amsterdam for the weekend. At trial Trought unsuccessfully made a submission of no case to answer on this count. Counts 5 and 9[27]On 10 July 2015 the appellant, Lightfoot, met up with Lawal near Lawal’s home address in Wandsworth, London. Lawal got into Lightfoot’s van and was driven a short distance before being stopped by the police. Both men were apprehended. A search of the van revealed 1kg of cocaine at 82% purity, 250g of cocaine at 87% purity and £77,045 in cash (Lawal was also in possession of £33,000).[28]As to Trought’s defence at trial, in interview Trought answered “no comment” to all questions on legal advice. In evidence he denied participation in any conspiracy. None of the money seen in the photograph was criminal property derived from drug dealing. Most of it was fake, produced specifically for artistic purposes. He was never in possession of the 7580 phone and all other mobile phone contact between his registered phone and any other person was normal social contact with friends or for innocent business purposes. Someone else whom he did not name for fear of reprisals stayed with him over the 10-day period. That person was in possession of this phone. As an artist/music producer/builder he was usually paid in cash and that was why there were cash deposits in his accounts. He denied he was “Hammersmith”. His contact with Perestrero on the 1 June 2015 was entirely innocent. He could not remember being sent the email. There was an innocent explanation for taking the picture. His partner’s father was suffering with cancer. He was looking into ways to assist to ease the pain. The cannabis would have been for medicinal purposes. He travelled to Amsterdam because he was doing a gig as a DJ.

The appeal against conviction

[29]Trought appeals on the grounds that the judge erred:(1) In admitting the hearsay evidence of an absent co-accused Walshe.(2) In refusing an application to exclude the hand written notes of Walshe.(3) In refusing an application to adduce Walshe’s comments in his police interview.[30]He renews his application for leave on the ground that the judge erred in rejecting a submission of no case to answer on count 2 (ground 4).[31]He also raises a new argument in support of ground 4, namely that cross-admissibility should not have been applied between counts 1 and 2 and that the judge should accordingly only have considered the evidence relating to count 2 at the close of the prosecution case, on which further basis the submission of no case should have been accepted. Alternatively, if cross-admissibility was appropriate, by a new ground of appeal it is submitted that the directions given on cross-admissibility were inadequate.[32]Before considering these grounds, it is right to observe that, as the Crown submits, the case against Trought on count 1 was a strong one. In particular, understandable concessions are made that the owner of the 7580 phone was very likely to be guilty of the offence. The evidence that this was Trought was extremely strong and did not rely on the matters the subject of this appeal. The records from the 7580 telephone contained only one call not to a conspirator and that was to Trought’s partner. It used at the start and end of each day the telephone mast nearest to Trought’s address. It co-located not just with his other mobile telephone (whose ownership was not in dispute) on multiple occasions but did so when his car could be tracked from ANPR records crossing back and forth across London. It was in use when police made an observation of a car in which the only occupants were Trought and Perestrero. Perestrero was a very close associate of Trought on both the prosecution and defence case. His undisputed mobile phone was the phone most often in contact with the 7580 phone. It follows that Perestrero was not the user of the 7580 phone, hence the police observation when the car movement tracked that of the 7580 phone meant that the phone must have been used by Trought. The defence case was that there was a house guest who Trought would not name who must have been using the phone and therefore had the lead part in the conspiracy; further that he looked sufficiently similar to Perestrero for the police identification to be mistaken. Other evidence included lifestyle evidence and cash movements, he was convicted of possession of criminal property and there is no appeal against that conviction. His connection with Perestrero was highly incriminatory. Perestrero was in contact regularly with each of the dirty phones. His conviction means that there was evidence that at the height of the conspiracy Trought was in regular contact with him via other, unchallenged phones, and was in his company when the police observation took place. Trought knew Qarri and Walsh. He was looking after Walsh’s family while Walsh was in custody. There were photographs on his computer of approximately £200,000 in bank notes on a day when he drove to and from the vicinity of Lawal’s address.

Ground 1 - Admitting the hearsay evidence of absent co-accused Walshe

[33]The prosecution made an application to admit the evidence of Walshe’s comments on arrest pursuant to section 114(1)(d) of the Criminal Justice Act 2003 (“the 2003 Act”).[34]It was accepted that Walshe made a confession to his part in a conspiracy to supply Class A drugs to others. The prosecution contended that it together with other evidence would entitle a properly directed jury to draw the conclusion that Walshe had agreed to courier drugs for Trought as a means of paying off a debt. For his part Trought accepted that Walshe had borrowed money from him but said that there was no agreement that Walshe would act as a courier of drugs in lieu of payment.[35]In acceding to the application the judge had express regard to the relevant factors set out in section 114(2) of the 2003 Act. She found that:(1) The statements had significant probative value for the reasons put forward by the prosecution. The jury would be directed to consider the whole of the evidence including text messages sent, mobile phone traffic and the contents of Walshe’s notes.(2) The evidence was important in the context of the case. It would be for the jury to decide whether Walshe was working off a debt for Trought.(3) It was an unsolicited statement made on arrest. Moreover, it was made against Walshe’s own interest. A jury would be entitled to conclude that the fact that it was made against his interest made it less likely that it had been completely concocted.(4) The comments were made to a police officer on arrest and signed as accurate statements by Walshe at the scene.(5) It would be open to Trought to highlight the limitations of what was said to the officer. Further, he could explain why Walshe was indebted to him, what arrangements had been made for repayment and his knowledge of the situation.[36]On the appeal it is submitted that this evidence should have been excluded. In the written grounds it is contended in particular as follows:(1) The issue for the jury to consider was whether Trought was a knowing participant in a conspiracy to supply cocaine. The statements made by Walshe on his arrest were not of probative value to that issue. Walshe’s guilt was not an issue for the jury. The admission of his comments on arrest could only be evidence that Walshe was guilty and not that Trought was guilty.(2) Walshe made no allegation against Trought. He did not name Trought by name or by implication; his comments referred to a male he had met approximately two weeks earlier whereas it was agreed that Trought had known Walshe for years.(3) The comments were unnecessary for understanding the other evidence in the case.(4) The circumstances of Walshe’s arrest did not add to their reliability. The fact that they appeared to have been made spontaneously upon his arrest was insufficient, it is submitted, to establish that the contents of the remarks were reliable. The comments themselves were inconsistent with the prosecution case that Trought was the individual Walshe was indebted to.(5) The police interview of Walshe revealed inconsistencies between the comments made on arrest and then later to police in interview. In particular in his interview Walshe had to consistently ask what the debt was that he owed(6) Challenging the inference invited by the prosecution placed the defence at a considerable disadvantage without the opportunity to cross examine Walshe. In particular the defence were hampered by being unable to ascertain who the “bloke” was that Walshesaid he had met some two weeks earlier and who he had been delivering the cocaine for.[37]As to ground (1), as the Crown submits, the comments made by Walshe are not to be considered in isolation. They need to be seen in their full context. On the Crown’s case they arose against an evidential backdrop that showed that Trought was at the heart of the arrangements for the sale of the cocaine that Walshe was couriering to Lawal on 6 November 2014. He was working with Qarri to supply very large amounts of high purity cocaine to a number of purchasers, of whom Lawal was one.[38]They also need to be considered together with the notes which were found. The statement that Walshe was working off a debt when combined with the notes was clearly of probative value. It provided support for the prosecution case that he had a debt to Trought and was working it off as a courier.[39]As to ground (2), although it is correct that the comments did not name Trought, and that the reference to a male Walshe had met approximately two weeks earlier was inconsistent with the fact that it was agreed that Trought had known Walshe for years, this relates only to the first part of the comments. The latter part of the comments relating to working off a debt over 6 months did, plainly, have the potential to refer to Trought. Further, the earlier comments were not prejudicial to the defence; on the contrary their admission assisted the defence who argued that they could not refer to Trought.[40]As to ground (3), the comments did assist in understanding other evidence in the case. In particular, on the prosecution’s case they connected the account given in the notes with the conduct of Walshe on 6 November 2014 and earlier.[41]As to ground (4), the unsolicited nature of the correction of the final comments does potentially add to their reliability, and the fact that that latter comment matches the account in the notes provides support for the prosecution case.[42]As to ground (5), as the Crown submits, the fact that in interview Walshe had to ask how much he owed can be said to be an example of why he needed to keep written records rather than of inconsistency.[43]As to ground (6), the suggestion that it was unfair to the defence that they could not ask Walshe who the “bloke” was who he had met some two weeks earlier is overstated. Walshe had connected this to an ongoing debt for 6 months and in interview he talked of working off a debt over what was clearly a much longer timeframe then a couple of weeks.[44]Further, when considering any question of prejudice by the admission of the comments it is important to note that Walshe did not name Trought. He gave two contradictory accounts and it was open to Trought to argue (as he did) that the first version could not apply to him and that the second version did not contradict his defence because there was, as revealed by the accounting notes, on his case a second person to whom Walshe owed a debt which he was paying off.[45]In oral submissions, Mr Pownall QC has emphasised that a confession is generally only used as evidence against its maker and that applications for the statement of a co-accused to be admissible are usually only made if it is adopted and the defence have an opportunity of cross examining the maker.[46]He recognises that such statements are admissible under section 114 of the 2003 Act but stresses that caution must be used before doing so, as borne out by the comments of Hughes LJ in R v Y [2008] EWCA Crim 10; [2008] 1 WLR 2644. As was stated in that case:
“56 Although section 114(1)(d) as enacted does not contain the cautionary reminder, which draft clause 9 did, namely that the probative value of the out-of-court statement must outweigh the difficulties of challenging it before it will be in the interests of justice for it to be admitted, the statute as enacted is not less rigorous. That is because section 114(2) lists specific factors which must, together with any other relevant matter, be considered before addressing the question whether it is in the interests of justice for the hearsay statement to be admitted. Those specified factors are: “(a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case; (b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a); (c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole; (d) the circumstances in which the statement was made; (e) how reliable the maker of the statement appears to be; (f) how reliable the evidence of the making of the statement appears to be; (g) whether oral evidence of the matter stated can be given and, if not, why it cannot; (h) the amount of difficulty involved in challenging the statement; (i) the extent to which that difficulty would be likely to prejudice the party facing it.”
As this court explained in R v Taylor (Stewart) [2006] 2 Cr App R 222, section 114(2) does not mean that the judge must hear evidence on, and make specific findings of fact about, each factor seriatim; but he must exercise his judgment in the light of consideration of all of them. Then, after those factors, and any other relevant to the particular case, have been evaluated, the judge must stand back and ask whether it is in the interests of justice that the statement be admitted. In doing so, he will of course remember that the statute does not render hearsay automatically admissible, and the reasons why it is not. Put broadly, they are that hearsay is necessarily second best evidence, and that it is for that reason much more difficult to test and to assess. The jury never sees the person whose word is being relied upon. That person cannot be asked a single exploratory or challenging question about what he said. Those very real disadvantages of hearsay evidence, which underlay the common law rule generally excluding it, remain critical to the assessment of whether the interests of justice call for its admission…. 57 It emerged in the course of argument that in some quarters the decision of this court in R v McLean [2008] 1 Cr App R 155 is being cited, on behalf of the Crown or co-defendants, as authority for the proposition that the inhibition upon the police interviews of one defendant being relied upon against another has simply been “abrogated”. If that means that it is thought that such material is routinely to be admitted under section 114(1)(d) , it both proceeds upon a misreading of the case and misstates the law. R v McLean is certainly authority for the conclusion which we have independently reached in this case that section 114(1)(d) is capable of application to any out-of-court statement; thus it is, we accept, capable of application to a hearsay statement contained in a police interview….. For present purposes it is enough to say that the existence of section 114(1)(d) does not make police interviews routinely admissible in the case of persons other than the interviewee, and that the reasons why they are ordinarily not admissible except in the case of the interviewee are likely to continue to mean that in the great majority of cases it will not be in the interests of justice to admit them in the case of any other person. 58 The interests of justice test will require, in a case such as the present, attention to the difference between an admission against interest and an accusation against someone else. That consideration no doubt also comes into play under section 114(2)(e), the reliability of the maker of the statement, and (d), the circumstances in which the statement was made. Absent inducement, mental instability or perhaps an incentive to protect someone else, it can no doubt normally be said that a person is unlikely to confess to a serious crime unless he did it. Precisely the reverse may well be true of an accusation against someone else, whether it is combined with a reliable confession or not. It may be evident that the maker of the accusation has a possible motive to blame someone else when no one else was in fact involved, or (where plainly someone else was involved) to cast the blame on the wrong person. Self-interest, to which the judge sagely referred in his ruling in the present case, is one obvious such motive; it is of course not the only one, for diversion of the accusation to protect another or out of animus against the person accused, may also, on the facts of different cases, fall for consideration. Sometimes it may be impossible to know whether such a motive exists or not. Sometimes it will be significant that the possibility of mistake cannot adequately be explored. In a few cases, it is possible that the accusation can be regarded as sufficiently reliable for it to be in the interests of justice to admit it, even though it cannot be tested by questioning the maker. It seems to us that it is likely that that will be the unusual case. 59 Although section 114(1)(d) is available to the Crown as it is to a defendant, the identity of the applicant is plainly relevant to the interests of justice test. It does not necessarily follow that the interests of justice will point in the same direction upon an application by the Crown as they might upon an application made by a defendant. Section 114(2)(i) moreover requires consideration of the injurious consequences of admission (“prejudice”) to the party facing the evidence which will arise from the difficulty of challenging it. Since the burden of proving the case is upon the Crown and to the high criminal standard, very considerable care will need to be taken in any case in which the Crown seeks to rely upon an out-of-court statement as supplying it with a case against the defendant when otherwise it would have none. In such a case if there is genuine difficulty in the defendant challenging, and the jury evaluating, the evidence, the potential damage to the defendant from that difficulty is very large. 60 Both the interests of justice test and section 114(2)(g) command attention to the question whether oral evidence can be given, rather than reliance be placed on the hearsay statement. We would expect that before reaching the conclusion that it is in the interests of justice to admit a hearsay statement, the judge must very carefully consider the alternatives. The alternatives may well include the bringing of an available, but reluctant, witness to court. It by no means follows in practice that a witness who has declined an invitation to make a statement will in fact refuse to give evidence if brought to court. If he may do so, then consideration will also need to be given to whether justice would better be served by putting him before the jury so that they can see him, with the possibility of applying to cross-examine him upon the previous statement, rather than simply putting in that statement for evaluation in the abstract by the jury. The statement itself can serve as notice to the defendant of the evidence which it is sought to adduce. The judge will need to weigh the untidiness of this for the Crown (or other party), but it may be that in some cases he will conclude that it will enable the jury to see the source of the vital accusation and to weigh up what if anything he says about it…. We emphasise that we do not purport to lay down any rule as to how a particular case should be handled; everything will depend on the infinitely varied circumstances of each case, and the individual judgment of the judge.” “(a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case; (b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a); (c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole; (d) the circumstances in which the statement was made; (e) how reliable the maker of the statement appears to be; (f) how reliable the evidence of the making of the statement appears to be; (g) whether oral evidence of the matter stated can be given and, if not, why it cannot; (h) the amount of difficulty involved in challenging the statement; (i) the extent to which that difficulty would be likely to prejudice the party facing it.”[47]In the present case, it is submitted that the judge gave insufficient consideration to whether Walshe, who was a serving prisoner, could be called, and should not have allowed Walshe’s comments to be admitted without him being called.[48]In her ruling

the judge noted that:

“Clearly there is no question that realistically oral evidence is going to be given by Walshe”
. The basis for that comment has become clear in the light of the background which has been explained by the Crown.[49]In summary, his whereabouts and circumstances were known at trial and considered by the judge and both prosecution and defence. He had been sentenced and was a serving prisoner; he had also been in contact with Trought from prison and some letters from him to Trought had been seized. There is some reference to this in the summing up where Trought accepts that a letter referred to Trought paying money to Walshe’s partner and money being used to meet nursery fees. It was the prosecution case that while Walshe was in custody Trought was endeavouring to buy his silence by such actions. It was also the case that Walshe was further indebted to Trought having lost the highly valuable load that he was delivering to Lawal when he was arrested. The prosecution’s view was that there was no realistic prospect of Walshe giving a statement for the prosecution or of giving evidence. It is to be noted that no suggestion was made at the time by the defence that the prosecution should seek to do so. In the light of the above background this is hardly surprising.[50]For all these reasons, and those given by the judge, we are satisfied that she was justified in admitting the evidence of Walshe’s comments and on any view that it was within the range of legitimate decisions which she could reach. She directed herself appropriately, had regard to the relevant statutory criteria under section 114 and reached a conclusion which was both open to her and, in our judgment, correct.[51]Further, even if the comments were wrongly admitted we are not satisfied that it would render the conviction arguably unsafe. There was significant and strong evidence against Trought on this count, as summarised above. In particular, the 7580 phone was clearly being used by one of the conspirators and if it could be shown to be in the hands of Trought, the inference of guilt was clear. The prosecution were able to show that the 7580 phone collocated with Trought’s 5842 contract phone on all but one occasion when a text message was received that did not require them to be in the same place.

Ground 2 – the admission of the notes found at Walshe’s home address

[52]The prosecution sought to adduce the notes found at Walshe’s home address. The notes were akin to ones in a private diary and were not hearsay evidence, as was and is accepted. The judge said that she would not exclude the evidence pursuant to section 78 of PACE. It would be for the jury to assess the police officer’s evidence as to the meaning of the word “units” and his claimed knowledge of the matters. Regardless of the fact that Walshe had never provided an explanation for what he wrote in the notes, the police officer was still entitled to volunteer his opinion based on his expertise.[53]The appellant submits that the judge should have accepted the defence application under section 78 that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court should not admit it.[54]In the written grounds it is contended in particular that:(1) It was impossible to say what the notes found at the scene purported to record. Walshe had provided no explanation capable of being explored or challenged by the defence. He had not been asked about the notes in his interview with the police and consequently had given no explanation as to their meaning.(2) The failure by the police to ask Walshe about the meaning of the notes left the defence at a considerable disadvantage because any defence response would be inviting speculation as to what the notes might mean.(3) In his police interview Walshe stated that the drugs he delivered were on behalf of a man called “Tony” who was Albanian. He went on to state:
“Tony, Albanian guy, I’ve met him in Tooting and Mitcham football ground which is, I suppose it’s close to where he must live. Erm, he was introduced to me by one of my friends who I know … I’m just worried about giving names though …”
[55]In the event, however, none of this elucidation of the remarks made by Walshe were put before the jury because the learned judge refused to allow the admission of Walshe’s police interview.[56]As to grounds (1) and (2), as the Crown submits, it is reasonably clear what the notes found at the scene purported to record when set against the context of all the other evidence in the case. They explicitly referred to work for Trought, deliveries of units and the reduction of a debt. This did not depend upon or require the police asking Walshe questions in interview about the meaning of the notes. Given that he had made a full admission there was no need for them to ask such questions.[57]As to ground (3), although Walshe referred in interview to working for “Tony, Albanian guy” he also referred to getting instructions by phone. Walshe talked of being told where to go and what to do by phone and his phone records suggest that those instructions were given by Qarri and Trought.[58]In oral submissions Mr Pownall has stressed the point that the notes should not have been admitted without also allowing admission of Walshe’s interview so that the jury had the complete picture. It should have been all or nothing. This leads on to a consideration of ground (3).

Ground 3- Refusal to admit Walshe’s comments in interview:

[59]Trought made an application to cross-examine the interviewing officer, DC Taylor, about answers given by Walshe in interview pursuant to section 124 of the 2003 Act. He argued that it was relevant(i) to the credibility of Walshe’s statements and(ii) to highlight inconsistencies within them and(iii) to draw attention to the fact that Walshe was never questioned about the content of notes found at his home address.[60]The prosecution, who opposed the application, said that Walshe never mentioned Trought either at the scene or during his interview.[61]The judge, in refusing the application, said that the comments Walshe made in interview simply expanded upon, and were not inconsistent with those made at the scene. The fact he failed to mention Trought was not a sufficient basis to admit the whole of the interview record. It did not take the matter any further and did not assist the jury with the issue they had to decide, namely whether or not Trought played any knowing role in the conspiracy. It would be open to Trought to comment on the nature of his relationship with Walshe from the other available evidence.[62]The appellant contends that the judge erred in refusing the application to put before the jury the record of the interview. In the written grounds it is contended in particular that:(1) The interview established that Walshe had met “Tony” [i.e. Qarri] via a friend many months before the conspiracy in question and that he was indebted to Tony as opposed to the introducer due to a lost consignment of drugs/money. Walshe indicated his handler/organiser was Tony and that he was concerned as to potential harm to his family from those he was indebted to.(2) This evidence was admissible to add context to the hearsay comments/confession made at the scene by Walshe and to provide the evidential footing for suitable comment before the jury in closing speeches.(3) The defence also wished to highlight the fact that the comments made on arrest were not expressly addressed by the officers in the police interview and nor were Walshe’s notes.(4) It was necessary to put this additional material before the jury as the interpretation of the notes could only be properly made by reference to the comments made by Walshe in his interview.(5) Putting the comments made on arrest into context was relevant to the credibility of the evidence. The prosecution sought to adduce the notes as the truth of the contents: that Walshe was in debt to Trought in the sum recorded and that he had been working off his debt. The additional inference invited was that he had been repaying his debt to Trought by delivering cocaine on his behalf. The record of interview may have casted doubt on this assertion. The defence were placed at an unfair disadvantage by the refusal of the judge.[63]These grounds have been expanded upon by Mr Pownall in his oral submissions. He further contends that the judge erred in suggesting that it was evidence of bad character and that it was necessary to show that it was of substantive probative value. He submits that due to what was, on any view and despite its admissibility, an unusual if not unique application to introduce what one defendant said upon arrest, fairness required that the jury had before it all relevant material.[64]In our judgment the judge was entitled to conclude that the contents of the interview were, as she said, “in essence expanded on a statement he made at the scene, that he was working off a debt for someone – in other words he put some meat on that bone – but what he said was not inconsistent with what he said at the scene, and it is clear, having read his interview record, that he was reluctant to tell the police everything that he knew”. What was being sought was to admit parts of the interview to show that he did not name Trought, but in circumstances where he was clearly refraining from giving the names of all involved it did not assist on this point. His interview did not shed light on the actual issue in the case – namely whether it was Trought he was delivering drugs for or someone else. In those circumstances the judge was entitled to conclude, as she did, that the interview was of little or no probative value. Her decision did not depend on whether or not it was of substantial probative value.[65]The judge was also entitled to conclude that the fact that Walshe did not mention Trought was not a sufficient basis to admit the whole of the interview record which, as the defence conceded, is what would have had to happen. As the judge noted, that would have meant that all sorts of avenues would have to be explored and inevitably have led to speculation.[66]In our judgment there is some force in Mr Pownall’s point that the fact that Walshe had been interviewed and that he was not asked questions about the note or Trought may well have been admissible. There was, however, no application for these facts to be put before the jury and in any event the failure to do so cannot have any effect on the safety of the conviction.[67]In summary, we consider that the judge directed herself appropriately, had regard to the relevant considerations and reached a conclusion which was both open to her both in admitting the notes and in excluding the interview evidence.[68]In any event we accept the Crown’s submission that the admission of the interview would not have helped the defence. In it Walshe stated that “around 6 to 8 months ago I was introduced to a guy through a friend, who, his name is Tony or T or whatever his name is and he said “If your’re …. interested in making some easy money, all you got to do is pick something up and drop it them off”. …. “something went wrong 3, 4 months ago and they put the blame on me, it was a lot of money involved and they said that you have to work it off now so basically I was in they [sic] debt and every time the phone rang I had to do what they was asking to pay the debt off”. As the Crown submits, this fits well with the prosecution case, with the “they” in question being Trought and Qarri and matching the notes and phone records.[69]Further, even if the notes should have been excluded and/or the interview should have been admitted, for reasons already given we are not satisfied that the failure to do so would render the conviction arguably unsafe in the light of the other strong evidence against Trought on this count. The renewed application for LTA against conviction Ground 4 - Submission of no case to answer on count 2

The renewed application for LTA against conviction

[70]The judge accepted that there was probative evidence against Trought on count 2, albeit that she commented that it was “limited”. There were two mobile phone contacts, from Perestrero to Trought, and then from Trought to Perestrero. They had to be seen in the context of the pattern and timing of calls being made between the others involved in the delivery of cocaine on the particular day, and in the context of Perestrero’s contact with others. They also had to be seen in the context of the evidence of the relationship between Trought and Perestrero and, if sure about it, what had been happening in relation to count 1. In all the circumstances she concluded that there was a case to answer.[71]It is submitted that the judge erred in refusing the defence submission of no case. Whilst the judge recognised that the evidence was “limited” it is submitted that in fact there was no evidence upon which a jury properly directed could properly convict.[72]It is pointed out that the only June 2015 evidence against Trought amounted to two telephone calls on the 1 June 2015. The first telephone call was unsuccessful. That attempt was made approximately 50 minutes after Perestrerohad concluded a telephone call to Qarri. There were no further attempts made by Perestrero to contact Trought. It is submitted that the mere fact Perestrero was in contact with others was insufficient to properly found an inference against Trought particularly given their longstanding friendship that was never in dispute between the parties.[73]It is submitted that the lack of further or repeated calls to Troughtundermined the prosecution assertion that the call was in furtherance of the conspiracy to such an extent that the evidence was of no value: it was a single unsuccessful call amongst a large volume of successful calls between Perestreo, Qarri, Assaf and Kana. There was a single call back by Trought but it was a significant time later and only of 45 seconds in duration. There was no other evidence to enable a jury to conclude that Trought was involved in the events of1 June 2015. Moreover, as the defence submitted to the learned judge during argument; had Trought been an active participant in the events of 1 June then it would be expected that following the arrest there would have been considerable telephone communication between him and others. There was no evidence of any calls made to or by Troughtfollowing the arrests that day.[74]In all the circumstances, it is submitted that there was no evidence on which a jury properly directed could properly convict Trought of involvement on the 1 June and accordingly the verdict of guilty must be unsafe.[75]We are satisfied that the judge was entitled to conclude that there was a case to answer on count 2. That count essentially covered a single delivery of 1kg of cocaine by Kana (acting as a courier for Qarri and Trought) to Jameel (acting as a courier for the ultimate purchaser Nader Assaf) on the 1 June 2015. Perestrero did a lot of the organising. Kana pleaded guilty, Jameel, Assaf and Perestrero were convicted after trial. It was the prosecution case that Perestrero worked for Trought and was his ‘lieutenant’.[76]The evidence of the nature of the relationship between Trought and Perestrero was extensive. Telephone evidence showed very heavy volumes of calls between the two men. Observation evidence showed them repeatedly travelling together and joint meetings between them and other men convicted of cocaine supply including Manuel Hughes. For example, the dirty phone (7580) that Trought used for only a few days before Walshe’s arrest called Perestrero 19 times and was called back a further 17 times; in the same period Perestrero called Walshe 10 times and received 6 calls.[77]On 1 June 2015 Perestrero took the lead but it was the prosecution case that the relationship between the two men established in the evidence of events in 2014 and earlier in 2015 was relevant. On 1 June Perestrero was in contact throughout the day with Assaf and Qarri. He passed on details as to the postcode where the handover was to take place, the car that Kana would drive and the password that Jameel would need to give. These details were relayed to both Qarri (and then to Kana) and to Assaf (and then to Jameel). Perestrero called Trought at 09.10 am (albeit a zero second call) at the start of the day. He received the postcode from Assaf at 10:33 am and sent it to Qarri at 10:34 am. At 10:44 am he was called by Trought for 45 seconds. At 10:44 am Perestrero was sent a text by Qarri and at 10:45 am he sent a text to Assaf “I’ll give you the heads up when on way, not long”. In due course, after some delays that appear to be traffic related, Kana drove to Pimlico and met Jameel. Police arrested them both and found the kilo of cocaine in the car.[78]Whilst the Crown accepts that that evidence, by itself, would have been “thin”, we agree with the Crown that it has to be seen against the backdrop of evidence showing that Perestrero worked for Trought. There was considerable evidence that he was in effect his employee. Qarri was the supplier of cocaine into the UK and Trought found buyers and arranged onwards delivery to them. Perestrero helped him to do this. On the prosecution case, what the evidence of 1 June showed was that Qarri was still getting cocaine onto the streets of London but still needed Trought to arrange purchasers and to arrange deliveries; and that Perestrero was acting for Trought on that day.[79]In the new argument recently raised in respect of this ground of appeal it is contended that the judge was wrong to treat the evidence on counts 1 and 2 as being cross-admissible. This was not a matter disputed at trial. Whilst it is accepted that in some cases, particularly those involving allegations of a sexual nature against a number of witnesses who have not colluded, the admission of evidence on the basis of improbability of coincidence is appropriate, it is submitted that it was not in this case. In the present case, there were few if any significant similarities showing that Trought was involved. Although a similar method was involved, that did not mean that Trought was complicit. In particular, the phone that was used was registered to Trought. He did not receive or send any identifiable text messages to any of the co-conspirators. Trought and Perestrero were friends and were regularly in touch with one another such that it could not be said they only communicated in connection with drugs supply.[80]In our judgment the evidence was plainly cross-admissible, as the parties agreed at the time. Although there were two counts of conspiracy, the prosecution case was that, as far as Trought, Perestrero and Qarri were concerned, this was essentially a single conspiracy put into operation at different times with different individuals involved. Once the jury had decided they could be sure of Trought’s guilt on count 1 they would have decided that they could be sure that he worked as a drug dealer who obtained cocaine via Qarri and who then sold it on with the assistance of his employee Perestrero. These were all matters that were relevant to the issues in count 2 where the cocaine again came via Qarri and where again Perestrero was centrally involved in the onward distribution. On the prosecution case, the business arrangements in relation to both counts were the same. The only difference was that Trought played more of a background role in relation to count 2. In so far as it is necessary to address its admissibility as bad character evidence under section 101 of the 2003 Act, it would fall within section 101(a) (“all parties to the proceedings agree to the evidence being admissible”), section 101(c) (“important explanatory evidence”) and section 101(d) (“relevant to an important matter in issue between the defendant and the prosecution).[81]In all the circumstances, we are satisfied that the judge was entitled to conclude that there was sufficient evidence for the count to properly be left with the jury and the renewed application for leave to appeal is dismissed.

The new ground of appeal

[82]Despite the lateness of the putting forward of this new ground of appeal, we allow the application for leave to be made and grant the requisite extension of time.[83]In the light of our rejection of the argument on the issue of cross-admissibility, the question arises under the new ground of appeal as to the adequacy of the judge’s directions.[84]Mr Pownall submits that the directions lacked clarity. It is said that on the one hand the judge appeared to be directing the jury that they should look at the evidence cumulatively or as a whole in determining guilt on a particular count and then observed that if they were sure that he had used the 7580 phone in respect of count 1, they could use that finding and apply it to the defence of innocent association in count 2. No specific direction appears to have been given in respect of cross-admissibility on other counts.[85]Furthermore, no words of warning were given that just because a defendant is guilty of an offence in October/November 2014 when using a particular, unregistered phone and associating with a particular individual (Perestrero) did not mean that two telephone calls on the 1 June 2015, 7 months later, necessarily involved discussion of cocaine supply between co-conspirators. The jury should also have been cautioned against deploying ‘propensity’ evidence to bolster what was an otherwise weak case. The jury should have been warned about drawing inferences unless they could safely conclude that all other innocent explanations could be rejected.[86]We have carefully considered the judge’s directions and the repeat direction given in answer to a jury question. In our judgment the essential criticisms made are unfounded.[87]The judge did not direct the jury on cross-admissibility in relation to other counts because, in relation to Trought, it was only on counts 1 and 2 that it was said that the evidence was cross-admissible. Nor do we accept that there was any confusion about this in the directions given. The judge made it clear (at 17A of the summing up) that cross-admissibility only arose on counts 1 and 2 in respect of Trought and Perestrero, and counts 2 and 3 in respect of Butnariu (those being the only counts against Perestreo and Butnariu). She then explained that further in relation to each of those counts and each of those defendants. Comments made about considering the prosecution’s evidence cumulatively related only to those counts, as further made clear by the judge’s treatment of those counts immediately after the comment was made (both in the summing up and in answer to the jury question).[88]In relation to counts 1 and 2 the judge made it sufficiently clear to the jury that before they could rely on evidence on count 1 as being cross-admissible on count 2 they had to be sure of the evidence on count 1 and that it was evidence that supported the prosecution case on count 2. It is correct to observe that, no doubt as a reflection of its centrality to count 1, the judge refers to the jury being sure of the evidence relating to the 7850 phone rather than count 1, but we are satisfied that this would have been understood as being simply a shorthand way of referring to count 1.[89]As to the suggested need for warnings, the judge gave a circumstantial evidence direction and directed that the jury had to be sure of each defendant’s guilt separately in relation to each count. Given that there was no suggestion that the count 1 evidence was evidence of propensity there was no necessity to give directions about it. The judge did make it clear that the jury had to be satisfied of the relevance of the count 1 evidence to count 2 before relying on it.[90]In our judgment, the directions given by the judge were appropriate and sufficiently clear for the jury to understand. It is to be noted that no issue was taken about the directions at the time or in the grounds of appeal settled by trial counsel.[91]We accordingly reject the application for leave to appeal on the new ground of appeal.

Conclusion

[92]For the reasons outlined above the appeal against conviction and the renewed and new application for leave to appeal must be dismissed.

The appeals against sentence

[93]In her general sentencing remarks the judge said that each of the appellants who pleaded guilty would receive full credit of one-third. In determining the starting point the judge applied the “totality principle” and considered the overall criminality with, where there was more than one offence, the main sentence being imposed on the most serious with concurrent terms imposed on the other counts.[94]The judge had full regard to the Sentencing Council Guidelines. Each appellant would be sentenced solely on the evidence and sentenced based on their individual roles.[95]Although there were separate counts the reality was that there was an ongoing conspiracy during the entire period involving different groups at different times taking part in a well-organised criminal network to supply very large quantities of high purity cocaine to drug dealers in London.[96]The judge did not treat the previous convictions of any of the appellants as an aggravating feature. However, she said that good character for offences of this nature afforded very little mitigation.[97]The offending was sophisticated and involved planning: non-registered pay-as-you-go phones were used; taxis were used to transport the drugs and cash often in concealed compartments; and postcodes, not addresses, were used for the collection and delivery of the cocaine.

Trought

[98]He is 37 years of age (born on 17 May 1980).[99]He had previous convictions but none for drugs. His last conviction was in 2008 for an assault occasioning actual bodily harm.[100]The judge found that Trought played a leading role. He acted as a wholesale cocaine supplier for other dealers in London. He worked closely with Qarri, who was responsible for the importation of very significant quantities of high purity cocaine into the United Kingdom, to organise the movement, distribution and cash payment for significant quantities of high purity cocaine.[101]The judge assessed his sentence based on 24kg of high value high purity cocaine. He took possession of huge sums of cash in payment for the cocaine. He made a substantial financial gain from his criminal activity.[102]In assessing the starting point the judge noted the quantity of drugs involved, namely 24kg, which placed him above the indicative quantity of 5kg in the Guidelines for which the starting point undertaking a leading role was 14 years imprisonment. However, he was not in the bracket of an offender where a sentence in excess of 20 years would be warranted.[103]In mitigation it was accepted that he was a talented man, both as a music producer and an art promoter, and that he would now be separated from his children. However, he had never accepted responsibility for what he had done and had been motivated throughout by sheer greed. His behaviour had been supremely selfish and highly irresponsible.[104]The total sentence was 18 years 9 months which was imposed on both count 1 and 2.[105]The grounds of appeal are that:(1) The judge overstated the size and complexity of the conspiracy;(2) The judge failed to have any or sufficient regard to the sentence imposed on Walshe; and(3) The sentence passed on count 2 cannot be justified for a delivery of 1kg of Class A drugs.[106]As to ground (1), it is submitted that the court should have proceeded on the basis of the definite amounts of drugs known to have been trafficked in count 1 which were the 5kg on 6 November 2014 as opposed to the 24kg that was adopted.[107]It is further submitted that the conclusion as to sophistication of the conspiracy was overstated.[108]It is accepted that there were aggravating factors. The most significant were the high purity of the drugs and the consequent closeness to the importer. Further relevant factors justifying a higher sentence were Trought’s role and the extent of the amount of drugs being handled.[109]As to ground (2), the court was obliged under section 125 (1) of the Coroners and Justice Act 2009 to follow the sentencing guideline unless contrary to the interests of justice to do so. Bearing that in mind, it is submitted that taking Walshe’s sentence into consideration was a material factor affecting the interests of justice, even if the judge’s approach of departing from the Guidelines is considered to be correct.[110]As to ground (3), Trought was sentenced to 18 years 9 months on count 2 on the basis that 1kg of cocaine was supplied. It was a separate conspiracy and charged as such. It is submitted that such a lengthy sentence cannot be justified on any basis bearing in mind the amount of drugs involved being 1 kg.[111]Given the verdicts, it is acknowledged that Trought was to receive condign punishment but submitted that the sentence in the particular circumstances of this case should have been around the higher end of the range suggested in the Guidelines (up to 16 years) as opposed to the 18 years 9 months in fact imposed.[112]In oral submissions Mr Pownall emphasised in particular that the quantity of drugs involved was not “monumental”, that count 4 and in particular count 6 cannot have justified a significant uplift to sentence and that this was not a particularly sophisticated conspiracy. Whilst a modest uplift above the sentencing range of 16 years may have been justified, an uplift of effectively 3 years was not. Sentences of that order should be reserved for the most serious of drugs conspiracies, which this was not.[113]In relation to ground (1), the key issue is the quantity of drugs which the judge found to be involved. She was the trial judge. It was open to her to make findings on the basis of the evidence at trial. Walshe’s notes were part of that evidence and, in our judgment, she was entitled to rely on that evidence in reaching findings as to the quantities involved in the conspiracy. She was also entitled to find that the 5kg turned back on 4 November was distinct from the 5kg delivered on 6 November. On that basis, her finding that Trought was involved in a conspiracy involving 24kg of cocaine was fully justified.[114]In relation to ground (2), Walshe was sentenced by a different judge on a different and earlier occasion and before any of his co-conspirators had been arrested and charged. That judge did not have the benefit of having heard the trial and the evidence at that trial. The judge was entitled and indeed bound to sentence on the basis of the evidence before her.[115]Mr Pownall has also raised the issue of disparity in relation to the sentence of 11 years imposed on Qarri. This was after a prompt guilty plea and with a basis of plea that his place in the hierarchy was as an employee on the supply side not the top organiser; whereas Trought was the top organiser of the UK side of the conspiracy. Given the one third credit for a guilty plea his sentence would have been 16½ years after trial which, given his role, is in keeping with the sentences passed on the other defendants.[116]In any event, there is little room for a disparity argument in sentencing for a complex drugs conspiracy such as this. As

the judge observed:

“I have had regard to the parity of sentences so as to properly reflect the role that you each played, and the seriousness of what you did. It is inevitable in a case like this, where defendants face more than one very serious count in relation to a conspiracy to supply drugs, that on some counts there will be a much reduced sentence than might otherwise be the case applying the principle of totality and to properly have regard to parity of sentence. But I have sentenced solely on the basis of the evidence, what the jury was clearly sure about, and what I am sure about.”
[117]We are satisfied that this was the approach she followed.[118]The judge had to have regard to all the other sentences she was imposing and arrive at sentence which she considered appropriate for the relative role and criminality of each defendant. This is what she did.[119]In relation to ground (3), the judge’s approach to the 2 cocaine counts was to sentence on the basis of the combined quantities of drugs which she found to be involved. This was a legitimate and sensible approach. In the light of the approach taken it is artificial to seek to isolate the sentence imposed on count 2. What matters is the overall sentence imposed having regard to all Trought’s offending.[120]As regards the overall sentence, as the judge observed, 24kg is a quantity significantly higher than category 1 which has a starting point based on 5kg. In those circumstances, the Guidelines indicate that sentences of 20 years or above may be appropriate. The judge did not consider that Trought fell into that category but given the quantities involved it is clear that a sentence above the category 1 range was justifiable. Further the judge had to sentence Trought for all of his offending, which also included counts 4 and 6 as well as the 2 cocaine counts. Whilst we agree with Mr Pownall that count 6 may not have justified any appropriate uplift, the separate cannabis conspiracy clearly did. Considered alone and without regard to totality that count would have merited the 4 year sentence imposed. In all these circumstances, we do not consider that a sentence nearly 3 years above the category 1 range can be regarded as manifestly excessive.[121]Trought’s sentence appeal must accordingly be dismissed.

Nader Assaf

[122]He is 35 years of age (born on 6 May 1982).[123]He had previous convictions but none for drugs. His last was in 2004 for common assault.[124]The judge determined that he had played a leading role. He stood to gain significant financial benefit.[125]The case against him had been strong and his greatest mitigation would have been a guilty plea. He had very young children from whom he would now be separated for a considerable period of time.[126]The sentence imposed was one of 12 years imprisonment.[127]The grounds of appeal are:(1) The judge took too high a starting point;(2) The judge paid no or insufficient regard to Assaf’s mitigation; and(3) There was a wrong disparity with the sentence imposed on the co-accused.[128]As to ground (1), the starting point for a leading role is 11 years. The Guidelines identify aggravating features that would increase the starting point. The only ones identified were high purity, and possibly established evidence of community impact.[129]It is submitted, however, that there was no evidence before the court of the established evidence of community impact. Further, in her remarks, the judge appeared to aggravate Assaf’s sentence due to high purity and the level of sophistication. However, as was submitted at the time, this in fact reflected double counting. The judge formed the view that Assaf had a leading role, as the offending was on a commercial scale due to the sophistication of the criminal enterprise with whom the applicant was indicted.[130]As to ground (2), it is submitted that the judge in her sentencing remarks indicated that there was no mitigation available to Assaf, notwithstanding submissions to the contrary. In particular, it was submitted that this was an isolated incident and that there was strong personal mitigation. In particular, Assaf was the primary carer for his young family, as his partner had given birth between the two trials to their second, his third child.[131]These points have been developed by Mr Nathwani in oral submissions whose essential point is that the sentence should have been at or slightly below the starting point, but not above it, particularly having regard to Assaf’s personal mitigation.[132]It is not disputed that Assaf fell to be sentenced for a category 2 leading role which has a starting point of 11 years based on 1kg of drugs, the amount involved in Assaf’s case. The key issue is whether the judge was justified in going above that starting point,[133]The judge had regard to Assaf’s mitigation. She expressly referred to the fact that Assaf had nothing of a similar nature in his background and the impact on his family. She did not say that there was no mitigation, but rather that she did not regard it as being of great weight in a case of this seriousness. She was entitled to take that view. As the trial judge, she was best placed to evaluate the significance of the mitigation relied upon.[134]As to aggravating factors, the judge identified the high purity of the drugs and the level and sophistication of the planning involved. High purity is a listed aggravating feature in the Guidelines and it was an obviously important factor in this case where the purity was over 80%. As to the level of sophistication involved, the judge highlighted the distance Assaf sought to place between himself and others and his attempts to conceal and reduce the risk of discovery. The judge was entitled to regard these as aggravating features, albeit of less significance than the high purity of the drugs.[135]The judge’s sentence falls well within the Guideline range and is only 1 year above the recognised starting point in a case in which aggravating features had been correctly identified. Such a sentence cannot be said to be wrong in principle or manifestly excessive.[136]Assaf’s appeal is accordingly dismissed.

Lawal

[137]He is 39 years of age (born on 1 January 1978).[138]He had previous convictions but none for drugs. His last was in 2006 for a public order offence.[139]The judge determined his role to be leading. He purchased wholesale cocaine supplied from Trought for his own purposes. He made significant financial gain. He would be sentenced on the basis of 11kg of cocaine.[140]There was substantial mitigation: he had expressed considerable remorse, provided references from people who spoke highly of him and he would now be separated from his family.[141]The sentence imposed was 10 years on count 1 and count 5 concurrent.[142]The grounds of appeal are the judge erred:(1) In finding, on the evidence available, that Lawal was involved in two transactions concerning 5kg of cocaine in relation to count 1;(2) In attributing a leading role to Lawal for the purposes of the sentencing guidelines; and(3) In adopting too high a starting point.[143]As to ground (1),it is submitted that the Prosecution Note on Sentence was the first time that it was suggested that the collection of £200,000 by Trought from Lawal on 29 September 2014 represented payment for a delivery distinct from the intended delivery on 6 November 2014. It is said that there was no evidence of any delivery made to Lawal other than the intended delivery on 6 November 2014 nor was there evidence of any payment made by Lawal to Trought other than the payment made on 29 September 2014. In these circumstances, the court could not have been satisfied beyond reasonable doubt that the payment on 29 September 2014 was in relation to a delivery distinct from the intended delivery on 6 November 2014 and it is submitted that the judge erred in sentencing Lawal in relation to count 1 on the basis of 2 transactions of 5kg of cocaine.[144]As to ground (2), it is submitted that Lawal bore none of the characteristics indicative of a leading role. It may be said that he was able to refuse the intended delivery on the 4 November 2014 and called off the delivery on 6 November 2014 and that this is indicative of his being involved in the ‘directing’ or ‘organising’. However, there was no evidence of directing or organising beyond the aborting of these two deliveries. Further, it is submitted that Lawal’s role was consistent with his performing an operational or management function within a chain. His role on 6 November 2014 and 10 July 2015 was to take delivery of the 5kg and 1kg respectively. He clearly had some awareness and understanding of the scale of the operation but he was not directing it.[145]It is further submitted that Lawal’s role and involvement in count 5 was overstated. The evidence of events on 10 July 2015 indicates that Lawal was both getting his hands dirty and taking the risk of handling the commodity which, on the prosecution’s own case, is what leading players avoid. He was employed in an operational role, delivering a payment and collecting a delivery. There was no evidence to suggest that he was organising this supply or directing the supply, nor that he had substantial links to, or influence over, others in the chain. There was no evidence that he had close links to the original source of the drugs, nor any knowledge of the scale of the enterprise.[146]As to ground (3), for the reasons identified in relation to grounds (1) and (2), it is submitted that the judge erred and took too high a starting point in relation to Lawal based upon the evidence that was before her. However, even on the prosecution case it is submitted that the judge took too high a starting point in relation to Lawal in placing him very close to the upper end of the range of sentence applicable to a defendant with a leading role.[147]These grounds have been developed by Mr Tolhurst in oral submissions who stressed in particular that Lawal pleaded guilty on a full facts basis in November 2015, long before there was any suggestion that the £200,000 represented payment for drugs; that there was no or no sufficient evidence to link that payment to any drugs other than the 5kg involved on 10 November 2014, and that his role had been overstated.[148]In relation to ground (1), it was open to the judge to make such findings as she considered to be justified by the evidence. She was entitled to find that the £200,000 payment was for cocaine, that it would have been payment for about 5kg and that it was separate to the November delivery. In particular, it is inherently improbable that £200,000 would be paid in cash 6 weeks in advance of a drugs delivery and all other payments were, as one would expect, closely linked in time to delivery. Having regard also to the 1kg due to be collected in July 2015 her finding that the overall amount involved was 11kg is supportable.[149]In relation to ground (2), Lawal’s role was very much a matter for the judge to assess in the light of the evidence. Aside from the acknowledged evidence of directing or organising provided by the aborting of deliveries the judge also found that Lawal was buying on a commercial scale for his own purposes and that there was expectation of significant financial gain. These findings bear out the judge’s conclusion that Lawal’s role was a leading one.[150]In relation to ground (3), a category 1 leading role has a starting point of 14 years based on 5kgs. Given the judge’s finding that the quantity involved was more than twice that amount the judge was clearly entitled to go to the top of the category sentencing range. 15 years 9 months before discount for plea is close to but not at the top of that range. Further the judge had express regard to Lawal’s personal mitigating and discounted the sentence by more than the usual one third to bring it down to 10 years.[151]In all the circumstances in our judgment the sentence imposed was in line with the Guidelines and was neither wrong in principle or manifestly excessive.[152]The application must accordingly be dismissed.

Kana

[153]He is 31 years of age (born on 1 May 1986).[154]He had no previous convictions.[155]At trial Kana pleaded guilty to counts 2 and 3 on a written basis as follows:
“He was provided with two kilos of cocaine the day before his arrest; they were already wrapped as shown in the photos. He was told to deliver the cocaine to the address that would be provided and share (sic) to put it in the car. He was given the car in order to do this and phones. He was permitted to stay in the flat shortly before the 1.6.15. Mr Kana was told to do this by a male who is not named on the indictment. Mr Kana followed this man’s instructions and did what he was told to do.”
[156]The prosecution did not initially accept this basis. At sentence, however, there was no request for a Newton hearing.[157]The judge determined his role to be significant. He would be sentenced in relation to 2kg of high purity cocaine. His good character afforded very little mitigation. The sentence imposed was 7 years imposed on count 2 and count 3 concurrent.[158]The grounds of appeal are:(1) The starting point of 10 years 6 months was too high; and(2) Having regard to the disparity between the appellant’s sentence and the other defendants the sentence was manifestly excessive.[159]As to ground (1), it is accepted that Kana was clearly trusted, being someone who was allowed to occupy a premises that was used for packing and storing cocaine, and being a driver directed to deliver 2kgs of high purity cocaine. It is submitted, however, that anyone dealing with a large quantity of drugs is trusted; that is reflected by the starting point increasing significantly between category 3 and 2. When assessing culpability, it is submitted that there were features of lesser role as well as significant role present. It was quite apparent from the text messages he was receiving that he was being directed as to where to go and what to say. There was no evidence that he had influence upon anyone above him. It is submitted that the starting point for significant role should have been adjusted downwards to reflect this, and that this adjustment should have been balanced against the upwards adjustment on account of it being 2kgs not 1.[160]Whilst the drugs being of high purity is an aggravating feature identified in the Guidelines, this becomes relevant once the starting point has been decided. Therefore it is submitted that the judge erred in taking it into account when determining the staring point.[161]The starting point on the Guidelines for significant role / category 2 is 8 years, with a range of 6 years 6 months to 10 years’ imprisonment. The starting point taken by the judge in relation to Kana was 10 years 6 months, and was outside the category range. It was almost the starting point for leading role / category 2 which is one of 11 years and it was above the starting point for significant role / category 1 (5 kilos) which is one of 10 years.[162]Considering that Kana was being directed what to do and that his involvement was on one day in the conspiracy, it is submitted that the starting point taken by the judge was too high. Therefore, despite appropriate credit for his early guilty plea being given, the resulting sentence of 7 years was manifestly excessive.[163]As to ground (2), it is submitted that the disparity between the sentence of Kana and the sentences imposed in relation to others, specifically Lightfoot, Hughes, Seeburn and Walshe, demonstrates that Kana’s sentence of 7 years’ imprisonment is manifestly excessive. In particular, Hughes, Seeburn and Walshe were all dealing with greater quantities of cocaine than Kana. Hughes and Seeburn transported 2kgs of 86% purity. Hughes had more cocaine and scales at his home address. Seeburn had 4kgs (low purity) and 254g (high purity) at home. Their respective sentences of 6 years and 5 years’ imprisonment again show disparity with Kana’s and demonstrate that his sentence is manifestly excessive.[164]In her oral submissions Ms Stuart-Smith has emphasised in particular that the aggravating feature of high purity was counterbalanced by Kana’s personal mitigation, that the judge should not have gone above the Guideline starting point and on an any view not above the category sentencing range and indeed above the starting point for category 1.[165]In relation to ground (1), the judge was entitled to find that Kana had a significant role. He had an operational function within a chain. He was motivated by financial advantage. He would have had some awareness of the scale of the operation given the large quantities of drugs which he was entrusted to deal with.[166]The high purity of the drugs was a significant aggravating feature and justified going up appreciably from the significant role starting point. If Kana was being sentenced on one count there would be force in the submission that it was not appropriate to go above the sentencing range. However, Kana was being sentenced on 2 counts, each involving 1kg of high purity cocaine, which is the quantity upon which the starting point is based. In such circumstances, we consider that the judge was entitled to go slightly above the sentencing range notwithstanding Kana’s good character and personal mitigation, to which the judge had regard.[167]In relation to ground (2), we repeat the observations on disparity made in relation to Trought’s appeal.[168]In all the circumstances, we are not satisfied that the sentence was wrong in principle or manifestly excessive and the appeal is accordingly dismissed.

Jameel

[169]He is 34 years of age (born on 30 November 1982).[170]He had previous convictions including two for affray (2000 and 2011).[171]The judge accepted that he played a lesser role but given the high purity of the drug it was right that the starting point should come within the middle of the appropriate range.[172]In mitigation the judge noted that he regretted his actions but said this was a little too late. The sentence imposed was 6 years imprisonment.[173]The grounds of appeal are:(1) The sentence was manifestly excessive given the circumstances of the case and Jameel’s role within the conspiracy; and(2) The judge failed to pay any or any sufficient heed to parity of sentence considering the sentence imposed on Walshe.[174]As to ground (1), the judge agreed that he had a lesser role but however placed him in the centre of that category. It is submitted that she did not allow any credit for Jameel’s powerful personal mitigation and the fact that she found that he showed remorse, albeit late, in the letter from the prison. In light of the very minor role for a small fee, the very limited involvement and the fact that he was said to simply be taking the drugs to a friend, keeping away from the possibility of detection himself, it is submitted that the starting point should have been lower.[175]Further, it is submitted that there was no reduction at all for personal mitigation. Jameel lived at home with his mother for whom he is in effect a carer, did voluntary work within the community and was treated as a man of good character for the purposes of sentence.[176]As to ground (2), it is submitted that the judge should have had some regard to parity. Even though Mr Walshe was sentenced by a different judge, his sentence could not be wholly ignored, but it was not even addressed in the sentencing remarks, even though there had been lengthy submissions from several defence counsel.[177]These grounds have been developed orally by Ms Rodham who has stressed in particular the limited duration of Jameel’s involvement, that he would have had no awareness of the purity of the drugs involved and his exceptional good character.[178]In relation to ground (1), although the judge accepted that Jameel had a lesser role, she found that he knew what he was being asked to collect and that he played a trusted role to carry out various instructions and bring the valuable commodity back. The high purity of the drugs was a serious aggravating feature. Whether or not Jameel had an awareness of this, the fact of high purity places his role closer to the original source and means that there are likely to be a number of others lower down the drugs chain. The judge had express regard to Jameel’s mitigation but the weight to be given to it was a matter for her judgment. The sentence imposed was well within the sentencing range.[179]In relation to ground (2), we repeat the observations made in relation to Trought.[180]In all the circumstances we are not satisfied that the sentence was wrong in principle or manifestly excessive and the appeal is accordingly dismissed.

Lightfoot

[181]He is 36 years of age (born on 9 September 1981).[182]He had a previous conviction in 2000 for assault occasioning actual bodily harm.[183]At trial Lightfoot entered pleas on the following basis: “He performed a lesser role in that: 1. His function was limited to that of a courier in respect of both drugs and money; 2. He received instructions from others; 3. He acted for limited financial gain; and 4. Had no influence on anyone else involved”.[184]At sentence the prosecution accepted points 1, 2 and 4. Point 3 was not accepted but there was no request for a Newton hearing.[185]The judge determined his role to be significant, not merely that of performing a lesser role of a courier or delivery driver.[186]In mitigation there were references and incarceration would have a detrimental effect upon his young family.[187]The sentence imposed was 6 years imposed on count 5 and 12 months concurrent on count 9.[188]The grounds of Appeal are:(1) The judge erred in attributing a significant role to Lightfoot(2) The starting point was too high.[189]As to ground (1), all parties agreed that count 5 fell within category 2, with its indicative quantity of drugs set at 1kg. However, there was dispute as to the role Lightfoot played and it was submitted on his behalf that he met only one of the characteristics of someone playing a significant role, and then only technically; because he received limited reward for his part, it could be said he was motivated by financial advantage. Although it was submitted that the first, third, fourth and fifth characteristic of the lesser role characteristics were satisfied, the judge found Lightfoot played a significant role. The judge did not specifically set out her findings as to each step, but her sentencing remarks suggest she may have taken the purity of the drugs into account in the first step, whereas purity is a consideration for the second step – the adjustment within the range. The effect of that would incorrectly elevate Lightfoot’s culpability and role to a significant one, whereas a correct application of the Guideline would have resulted in the attribution of a lesser role in a category 2 offence with a starting point of 5 years’ custody with a range of 3½ to 7 years’ custody.[190]As to ground (2), the judge’s staring point of 9 years is an increase of 12 months on the suggested starting point of 8 years for a Category 2 significant role. The only factor that could justify this increase is the high purity (and hence value) of the drugs. However, for the reasons set out above, it seems the judge may already have taken the purity into account when considering role; if she had not, then the significant role finding cannot be justified.[191]These grounds have been supplemented by Mr Barraclough’s oral submissions who stressed in particular the lesser role features of the part played by Lightfoot.[192]In our judgment, the judge was entitled to find that Lightfoot had a significant role. He had a trusted and important role. The judge described him as “an important cog in the wheel” and could justifiably regard him as having an operational role within a chain rather than simply a limited function under direction. He was entrusted with very valuable drugs and large amounts of cash. As such, he would have had some awareness and understanding of the scale of the operation. He was, as the judge found, motivated by financial advantage. In the light of these considerations the judge could reasonably find that he had a significant role and the judge was entitled to go up from the significant role starting point to reflect the serious aggravating feature of the high purity of the cocaine.[193]In all the circumstances, we are not satisfied that the sentence was wrong in principle or manifestly excessive and the appeal is accordingly dismissed. Conclusion[194]For the reasons outlined above, all the sentence appeals are dismissed.