Case Nos:
2000/07409/D3
2001/00265/D3
,
2001/00083/D3
2001/01211/D3
,
2001/01992/D3
2001/00371/D3
,
2001/01378/D3
2001/01284/D3
Neutral Citation Number:
[2003] EWCA Crim 3182
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Thursday 30 October 2003
Before :
THE VICE PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION)
(LORD JUSTICE ROSE)
MR JUSTICE GAGE
and
MR JUSTICE PENRY-DAVEY
- - - - - - - - - - - - - - - - - - - - -
REGINA
- and -
PAUL LOWE
ANTHONY PARKINSON
MARTIN DESMOND NEARY
MARK ANDREW DAVEY
ANTHONY ELLIS
STEPHEN PAUL SMITH
CARL EMERSON FREDERICK
BRIAN HILLHANDS
and
JASON GILES SMITH
- - - - - - - - - - - - - - - - - - - - -
(
Computer Aided Transcript of the Stenograph Notes of
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- - - - - - - - - - - - - - - - - - - - -
Lord Thomas QC and Mr D. Williams appeared on behalf of  Lowe,
Mr P.D. Batty QC and Mr J. Smith appeared on behalf of  Parkinson,
Mr M. Hubbard QC and Mr D Williams appeared on behalf of  Neary,
Mr R. Holland appeared on behalf of  Davey,
Mr J. McDermott, QC appeared on behalf of  Ellis
Mr P.J. Martin appeared on behalf of  S.P. Smith,
Mr R. Burgess appeared on behalf of   Frederick,
Mr J. Rose appeared on behalf of  Hillhands,
and
Miss J.P. Forsyth appeared on behalf of  J.G. Smith
Mr D. Turner QC & Mr R. Dudley appeared on behalf of  the Crown
- - - - - - - - - - - - - - - - - - - -
Judgment
The Vice President :
1.
On 4
th
December 2000, following a twelve week trial at the Liverpool Crown Court before His Honour Judge Maddison, the appellants Lowe, Neary, Ellis and Hillhands and the applicant Frederick were convicted on one count of conspiracy to supply controlled drugs contrary to
Section 1(1) of the Criminal Law Act 1977
. The following day the appellants Parkinson and Davey were convicted on the same count. On 5
th
September 2000 at the same court before His Honour Judge George the appellant Stephen Smith pleaded guilty to the same count. On 4
th
September 2000 at the same court before His Honour Judge Maddison the appellant Jason Smith pleaded guilty to one count of possessing a controlled class A drug with intent to supply contrary to
Section 5(3) of the Misuse of Drugs Act 1971
and one count of possession of a controlled class B drug with intent to supply contrary to the same sub-section. He pleaded not guilty to a count of conspiracy to supply controlled drugs contrary to
Section 1(1) of the Criminal Law Act 1977
and that count was ordered to remain on the file on the usual terms.
2.
On 5
th
February 2001 the appellants apart from Stephen Smith were sentenced to imprisonment as follows: Lowe 24 years, Parkinson 21 years, Neary 16 years, Davey 16 years, Ellis 16 years, Hillhands 11 years and Jason Smith 16 years. On 2
nd
March 2001 Stephen Smith was sentenced to 11 years imprisonment. On 26
th
October 2001 the applicant Frederick was sentenced to 14 years imprisonment, and a drug confiscation order in the sum of £14,095.23 was made against him with twelve months consecutive in default of payment by 20
th
June 2002. Four co-accused, James Christopher Neary, Harry Anthony Davey, Desiree Coker and Thomas Parker were each acquitted of the conspiracy count. A sixth co-accused, Daniel English, pleaded guilty to one count of possession of controlled drugs, namely 3 kilograms of heroin and 10,000 ecstasy tablets with intent to supply in November 1999 and was sentenced, by another judge, to 9 years’ imprisonment. A man called McAteer, charged with the same conspiracy but tried separately, was convicted of conspiracy and murder. The single judge gave leave for Lowe, Davey and Ellis to appeal against conviction and sentence, for Parkinson and Neary to appeal against conviction, and for Stephen Smith, Hillhands and Jason Smith to appeal against sentence. Neary and Ellis both, before us, abandoned their appeals against conviction. No grounds to appeal sentence were before the single judge from Parkinson or Neary. But, as a matter of courtesy, we have heard leading counsel on behalf of each of them in relation to sentence. The single judge refused the applicant Frederick leave to appeal against conviction. He renewed that application before this Court, which refused leave in a judgment delivered on 23
rd
October 2003.
3.
The case for the prosecution was that the appellants, Frederick and the co-accused, between 1
st
June 1998 and 28
th
February 2000, conspired together and with various named and unnamed others to supply heroin and ecstasy contrary to
Section 1(1) of the Criminal Law Act 1977
. Operation Kingsway carried out by the major crime unit of the Merseyside police between 1998 and 27
th
February 2000 involved surveillance operations from fixed and mobile observation points. The observations were recorded over a radio link and logged. Details were also gathered of telephone calls. Some observations were photographed. The officer in charge was Detective Sergeant Patricson. The conspiracy involved repeated importations of large quantities of heroin from continental Europe into the United Kingdom through the Channel Tunnel. From July 1999 onwards Frederick, a disabled, middle-aged family man using the family Vauxhall Vectra motorcar, accompanied by his wife and one or more of his children, was responsible for the majority of the importations. The purity range of the drugs was between 43% and 67%. They were taken first to Ellis’ house at 107 Upper Parliament Street, Liverpool 8. From there they went to Stephen Smith’s house in Hawthorne Road, Bootle. Some were distributed on Merseyside. Some were destined for Bradford and some for Glasgow. The final delivery, consisting of 27 kilograms of heroin with a street value of at least £1.3 million was seized by the police at 107 Upper Parliament Street on 27
th
February 2000. By that date other couriers had been intercepted and 18 kilograms of heroin and 10,000 ecstasy tablets recovered. The total amount of heroin recovered was 45 kilograms with a street value in Liverpool of between £1.8 million and £2.7 million. But, during the conspiracy, more than this amount had been distributed. Of those tried, Lowe and Parkinson were the top men. Lowe, who used different names, different stolen motorcars and varying methods of travelling abroad, was the controller and director of operations. He was frequently in contact with Parkinson, whose main responsibility was distribution of the drugs following their arrival in this country. Lowe associated with Martin Neary and his brother James, who was acquitted, both of whom made visits abroad at times coinciding with the foreign travels of Frederick. Lowe recruited Coker, who was acquitted, as a courier and she took care of his false passport and birth certificate. Davey was the head of the Bradford connection and on one operation on 30
th
December 1999 Hillhands, also from Bradford, was involved.
4.
The prosecution evidence in relation to Lowe was that he was in regular contact with the other members of the conspiracy. He made two trips abroad at the same time that Frederick was abroad. When, in July 1999, Ellis was stopped in France in possession of £25,000 in cash and using a false name, Lowe arranged to have documents given to Ellis by the French authorities translated. On 1
st
August 1999 Lowe met Martin Neary in Sefton Park on the day of Neary’s eighth and Frederick’s third trip abroad. Neary travelled to France in motorcars dishonestly acquired by Lowe and bearing false number plates. On 5
th
October 1999 Lowe boarded the Hull-Rotterdam ferry. On 9
th
October he arrived at Liverpool by air from Amsterdam. On 15
th
November Coker travelled from Lowe’s house in Smithdown Lane, Liverpool to Stephen Smith’s house, carrying a quantity of what the prosecution said were drugs. The following day Lowe, carrying heroin and 10,000 ecstasy tablets, went with Coker to her house and shortly afterwards the drugs were delivered to English. On 19
th
December Lowe met Parkinson in Seaforth where the two obtained a bag which they took to Smith’s house in Hawthorne Road. On 29
th
December, shortly after Frederick had returned from one of his foreign trips, Lowe, with Ellis who was carrying a heavy bag, went to premises known as “A Touch of Steel” in Wavertree Road, Liverpool. A bag was later taken from there to 107 Upper Parliament Street. On 30
th
December Lowe was involved in transferring 9 kilograms of heroin, recently imported by Frederick, to the Bradford team. He went down the back entrance to Smith’s Hawthorne Road house and emerged 25 minutes later carrying a plastic bag. On 31
st
January 2000 Lowe arrived at 107 Upper Parliament Street shortly after a large quantity of drugs had been delivered there by the Neary brothers. Lowe thereafter organised the transfer of 2 kilograms of drugs by Ellis, first to Stephen Smith and then by him to Scottish couriers. On 12
th
February 2000, when going through customs on his return from Amsterdam, Lowe falsely stated he had travelled out by car with a man called Johnson who owned the car and worked for British Telecom in Holland. On 27
th
February Lowe arrived at 107 Upper Parliament Street shortly after drugs had been delivered and when the flat was being searched by police. £24,000 in cash was recovered from Lowe’s home. He was arrested on 27
th
February and when questioned about that cash said it belonged to a member of his family. He claimed to have visited 107 Upper Parliament Street that day looking for a man called O’Rourke.
5.
Lowe gave evidence that, although he went abroad three times during the period of the conspiracy, he never carried money out of or brought drugs into this country. Any bags he was seen carrying contained nothing relating to drugs, with the importation or distribution of which he had no connection. His lifestyle was modest. He had debts. He had a legitimate business in the construction industry and a criminal business dealing in stolen motorcars. Most of the cars he sold to Neary with whom he was in regular contact. But he was unaware that any of these vehicles were being used for drug dealing. The £24,000 cash found by the police at his house came mostly from the stolen car business but, in part, from savings from his cash construction business. He admitted buying a false passport and birth certificate which he had given to Miss Coker for safekeeping. He had never used it. He denied meeting Neary in Sefton Park on 1
st
August 1999. He had not been at 26 Hawthorn Road for 25 minutes carrying a plastic bag or otherwise on 30
th
December. Nor had he been at 107 Upper Parliament Street on the Sunday evening at the end of January 2000. He admitted lying to customs officers on his return from Amsterdam on 12th February 2000 and that his explanation for being at 107 Upper Parliament Street, namely that he was looking for O’Rourke, was false: the real reason for his visit was to obtain cannabis for his own use from Ellis. He admitted going to “A Touch of Steel” on 29
th
December 1999 with Ellis: the purpose of the visit was not drugs but to look at some wrought iron furniture. He had known Parkinson for two or three years and knew that Parkinson was a bit of a rogue and a receiver of stolen goods. Towards the end of 1999 Lowe distanced himself from Parkinson because he heard that Parkinson had been arrested for an offence unrelated to the present case. He had access to two mobile telephones with which he contacted Parkinson but their dealings were not connected with drugs. He denied recruiting Miss Coker as a courier. He did not know Stephen Smith and, although he had driven Parkinson to 26 Hawthorne Road he had never been inside that house or carried a plastic bag there as described by the police on 30
th
December 1999. He had first met English on 15
th
November 1999 the day before English’s arrest.
6.
The prosecution case against Parkinson was he, who lived in Kepler Street, Seaforth, associated regularly with Lowe, Davey, Stephen Smith and English, and was actively involved in the distribution of the drugs in this country. He had two mobile telephones from which many significant calls were made in connection with the conspiracy. On 16
th
August 1999 he removed a bag from a shed in his back garden, met English in Seaforth, and handed him the bag, containing drugs, which English took to Glasgow. On 18
th
October Parkinson met English in Liverpool, prior to English travelling to Davey’s home to collect a bag. On 26
th
October, Parkinson, outside his home, met Davey and English. Three days later at the Tickled Trout near Preston, Davey handed a bag containing money to English which English later delivered to Parkinson for drugs to be delivered to Davey. On 19
th
December, Davey and Parkinson met near Anfield football ground where, in a motorcar, heroin was smoked to test it. On 23
rd
December Parkinson was in contact with Stephen Smith when he was meeting three men from the Scottish drug contingent. On 30
th
December Parkinson was involved with Ellis in transferring a bag to a man at Seaforth. He had been in touch with Stephen Smith and Davey that day and, in the evening, was at Smith’s home when Lowe arrived. Parkinson was taken to McDonalds on the A580 where he met the Bradford contingent and guided them to Chelwood Avenue. There 9 kilograms of heroin were handed over by Parkinson. The following day, after the Bradford drugs contingent had been arrested, Parkinson made a series of telephone calls to Davey’s telephone. On 30
th
January 2000 Parkinson was involved with Lowe and Stephen Smith, at Monaghan’s public house in Bootle, in the transfer of 4 kilograms of heroin to three Scots. The drugs had arrived that day via Frederick. There were repeated telephone communications during the day between Parkinson and Stephen Smith. The following day Parkinson contacted Stephen Smith by telephone making arrangements to transfer 2 kilograms of heroin to another Scottish courier. On 28
th
February Parkinson was arrested at home. £800 was found in the drawer of one of the bedrooms. He said this belonged to himself and his wife. Following his arrest he was interviewed by the police on three occasions. At the first interview he made no comment to questions. At the second interview he said the allegation that he had handed over a large holdall to a pillion passenger in Chelwood Avenue on 30
th
December was untrue.
7.
Parkinson, in evidence, said he had previous convictions for violence and dishonesty and made a living by buying and selling anything available, apart from drugs. He knew Lowe, Davey, English and Stephen Smith. He had traded with Davey in contraband cigarettes and telephones but not drugs. He had had no dishonest or drug dealings with English. Stephen Smith was a close friend who would sell him stolen clothing or contraband cigarettes but not drugs. He had never met Ellis. On 16
th
August 1999 he met English but only to give him a racing tip. He met Davey on 26
th
October solely to ask him to intervene in a feud Parkinson was having with a man called Saunders. He met Davey at Anfield on 19
th
December 1999 not to test heroin but to give him football tickets. He was in the Seaforth area on 30
th
December 1999 but did not meet Ellis, whom he had never met. He was not at 26 Hawthorne Road that day. Nor was he involved, as the police described, in the handover of 9 kilograms of heroin to the Bradford contingent in Chelwood Avenue.. On 31
st
January 2000 he was at Monaghan’s public house with Stephen Smith to watch football on television. He had no drug dealings there. He occasionally used the two mobile telephones but they belonged to his brother-in-law Michael Murphy and had come to his house so that they could be charged. £800 in cash found at his home came from the sale of furniture to his sister. He gave a number of reasons for declining to answer questions when interviewed. His sister confirmed the sale of the furniture. Two other witnesses spoke of buying small quantities of cigarettes from him on a number of occasions, and two other witnesses spoke of the sale by Parkinson of quantities of Persil.
8.
Neary, who lived in Glendale Close, Liverpool, was an associate of Lowe and Frederick, whom he had met at the View Club, and Ellis. The prosecution said he represented the conspiracy abroad, facilitating the importation of drugs on his travels to the continent, which frequently coincided with those of Frederick. As we have said, some of the motorcars he used abroad had been acquired dishonestly by Lowe and bore false plates. On his return to this country in April and June 1999, when he was questioned by customs officers, Neary claimed that the purpose of his journey was to visit his sister in Brussels. On 30
th
January 2000, shortly after Frederick returned to England from his twelfth trip to France, DC Webster identified Neary as the person who, together with his brother, carried two bags of heroin into 107 Upper Parliament Street. James Neary had arrived at the premises earlier driving Frederick’s motor car. On 27
th
February Frederick, having returned from his thirteenth foreign journey, was visited by Neary. At about 6 p.m. Neary delivered two bulky holdalls of heroin and cannabis to 107 Upper Parliament Street. A quarter of an hour later police raided the premises and discovered a total of 27 kilograms of heroin, 1 kilogram of which and 282 grams of cannabis resin were in a holdall. After his arrest on 28
th
February, Neary declined to answer any questions when interviewed by the police.
9.
Neary, in evidence, said he was of good character and, in earlier times, had led a hard-working successful life as an independent builder with a large turnover. The business was wound up in 1994. His wife ran a florists. His trips to Europe were with a view to setting up a business in Belgium. He was introduced to Lowe on 17
th
March 1999 and became involved in buying and disposing of cloned motorcars which he sold in this country and Europe. That business was the reason for his visits to Lowe’s house. He had nothing to do with the importation of drugs. He was unaware that several of his foreign trips coincided with Frederick’s journeys. It was not true that he had been at 107 Upper Parliament Street on 30
th
January. On 27
th
February 2000 the goods handed to him by Frederick were duty free not drugs. Thereafter it was drycleaning which he took to Ellis, who he had only met once before. He gave various explanations for not answering questions in interview. In particular he did not wish to implicate Lowe in the stolen car business.
10.
Davey, the prosecution claimed, was head of the Bradford drug connection. He was regularly in contact with Parkinson and English, and knew Hillhands. On 18
th
October 1999 English, after meeting Parkinson, collected something from Davey and returned to Liverpool where he again met Parkinson. On 26
th
October Davey met Parkinson and English outside Parkinson’s home. On 29
th
October Davey met English at the Tickled Trout near Preston and gave him a bag likely to have contained money in anticipation of the drugs delivery to Davey. English was to deliver the bag to Parkinson. On 16
th
November English, on his way, it was said, to meet Davey, was stopped on the M62 Motorway at Brighouse and had 3 kilograms of heroin and 10,000 ecstasy tablets in his possession. On 19
th
December Davey met Parkinson outside Anfield football ground after Parkinson and Lowe had taken a consignment of drugs to Stephen Smith’s house. As we have said, they tested the heroin, smoking it in a motorcar. On 30
th
December, Davey travelled from Bradford to Liverpool in a Honda motorcar. Hillhands and Parker, who was acquitted, went on a motorcycle to Liverpool. Having met Parkinson at McDonalds on the A580, Parkinson guided Davey to Chelwood Avenue. Davey left the Honda motorcar and was present when 9 kilograms of heroin were handed to Hillhands. At that point Davey was arrested.
11.
Davey said in evidence he was a nightclub doorman from Bradford. He also dealt in motorcars and contraband cigarettes, spirits and telephones. He had met Parkinson two or three years before and they traded in contraband cigarettes. Parkinson introduced him to English whom he did not know was a drugs dealer. Davey never had any drugs dealings with anybody. On 18
th
October 1999 English came to Bradford solely to collect some clothes he had left in a caravan. On 26
th
October Davey went to Parkinson’s house to see if he could help in relation to the feud with Saunders, a local hard man who had injured Parkinson’s wife. While he was there, Parkinson telephoned English who came to the house and Davey arranged to meet him three days later at the Tickled Trout. They met there on 29
th
October and he handed to English a bag containing a coat, some blue movies and two telephones, but no drugs. On 26
th
November, when English was stopped on M62, Davey knew nothing of his journey. On 19
th
December he met Parkinson near Anfield to get some tickets for a football match. Heroin was not tested. On 30
th
December he heard his friend Hillhands was going to Liverpool to collect some money and he accompanied him in a separate vehicle because he was planning to take the money from Hillhands in a staged robbery. He agreed he had been in a Honda motorcar at the junction of Chelwood Avenue and Thornton Road but was unaware that any transaction in relation to heroin took place there. Contrary to what had been put on his behalf in cross-examination, he declined in evidence to say that Parkinson was present on that occasion.
12.
Ellis, according to the prosecution, was not central to the conspiracy, but played a number of important roles, in particular by providing the main drugs safe house at 107 Upper Parliament Street. On 15
th
July 1999 he was stopped by French customs officers while carrying £25,000 in cash intended as payment for drugs. He falsely told the authorities that the money was for buying a car. Some money, he said, had come from buying and selling cars and some from the proceeds of winning at gambling. He took the documents issued to him by the French authorities to Lowe for translation. In November 1999 Ellis took the tenancy of a flat at 107 Upper Parliament Street. On 29
th
December, the day following the return of Frederick from one of his visits to France, carrying a heavy bag, he went to the premises “Touch of Steel”. Lowe went separately to the same premises at the same time. The following day Ellis and Parkinson were involved in the transfer of drugs to a Honda motorcar in the Seaforth area. On 30
th
January 2000 Ellis visited Lowe’s house. The following day a large consignment of drugs was delivered to 107 Upper Parliament Street from where Ellis took 2 kilograms in a taxi to Stephen Smith’s home in Hawthorne Road. On 27
th
February 27 kilograms of heroin were delivered to Ellis’s flat. Lowe visited the flat immediately after the delivery. When the police raided the flat that day there was, as we have said, 1 kilogram of heroin and 282 grams of cannabis resin in a holdall on the kitchen floor and there was 26 kilograms of heroin in brick form in the airing cupboard. Ellis was arrested.
13.
Ellis said in evidence he was a cannabis not a heroin dealer. This was why he had £25,000 in France. On his return he asked Lowe to have translated the documents given to him by the French authorities. He had known Lowe for some years, supplying him with small amounts of cannabis. Eventually Ellis provided the safe house for drugs but believed they were cannabis. He admitted lying to the French authorities that the money was for a car and came from gambling winnings. His visit to the “Touch of Steel” with Lowe on 29
th
December 1999 was to look at wrought-iron furniture. On 30
th
December he was not present with Parkinson when drugs were transferred to the Honda. He did not know Parkinson. 30
th
January 2000 was the date of the first delivery to Ellis of what he believed to be cannabis resin. It was not delivered by the Neary brothers. On 27
th
February a second delivery was made and Martin Neary came later the same day but only to deliver some drycleaning. Initially he did not realise he had a defence to the charge: he understood it did not matter that the drugs he stored were heroin or cannabis. He told his legal advisers that he always thought he was dealing in cannabis and they told him he must plead ‘Not Guilty’. His knowledge of the nature of the drugs was the issue for the jury. They disbelieved him.
14.
Stephen Smith, it is common ground, was recruited to replace English, following English’s arrest in November 1999. He lived at 26 Hawthorne Road, Liverpool. His principal role was as courier, although he occasionally stored drugs. He knew Lowe, Parkinson and Ellis, all of whom visited his home. On 15
th
November 1999 he handed a package to Coker. On 23
rd
December 1999 he collected cash from a man called George Smith to whom, on 30
th
January, he was said to have delivered 4 kilograms of heroin at Monaghans public house. On 30
th
December he was involved in the handing over of 9 kilograms to Hillhands. On 1
st
February he delivered 2 kilograms to a Scotsman called Craig at McDonalds in Netherton, having stored it at his house overnight. He was arrested at home on 28
th
February 2000.
15.
Frederick brought large quantities of heroin into this country, via the Channel Tunnel, from France to which he made thirteen short trips with his wife and children between July 1999 and 27
th
February 2000. As we have said, he was largely supervised in Europe by Neary who collected drugs from him on 27
th
February. Further details of the evidence against Frederick are to be found in this court’s judgment on 23
rd
October 2003.
16.
Hillhands arrived in the Liverpool area from Bradford on 30
th
December 1999 travelling as a pillion passenger on a motorcycle, accompanied by a Honda motorcar driven by Davey. This Bradford contingent met Parkinson who gave 9 kilograms of heroin to Hillhands in Chelwood Avenue. Hillhands put the heroin under the front of his jacket, remounted his motorcycle and travelled in the direction of the M62 motorway. He was stopped and arrested at Burtonwood Services on the M62 with the drugs still under his jacket. He also had in his possession £3,800 in cash. This was the only incident involving Hillhands. In interview he admitted going to Liverpool but said this was in connection with CDs, not drugs. He did not give evidence but called a witness about the cash in his possession.
17.
Jason Smith was a minder of 49 kilograms of heroin and 2 kilograms of cannabis which, together with £33,770 in cash were discovered at his home on the 8
th
June 2000.
18.
Desiree Coker, as we have said, was acquitted. The prosecution case against her was that she was a courier recruited by Lowe who took drugs to Hawthorne Road from Lowe’s house on 15
th
November. On 16
th
November she handed heroin and ecstasy tablets to English which were in his possession when he was arrested on the M62 motorway. When she was arrested on 28
th
February 2000 police found in her house an unused passport in the name of Alan Perrin bearing Lowe’s photograph. A birth certificate was also found showing a date of birth of 15
th
February 1961 which was the same as the date entered on the passport.
19.
On behalf of Lowe, Lord Thomas QC advanced two grounds in support of his appeal against conviction. First, the judge was wrong in refusing to permit the defence statement served under
S.5(6) of the Criminal Procedure and Investigations Act 1996
to be placed before the jury. It is twenty-four pages long and was served on 14
th
July 2000, four and a half months after Lowe was arrested and questioned and six weeks before the beginning of the trial. Lord Thomas submitted that there was ample opportunity for the prosecution to investigate its accuracy as it contained the names and addresses of witnesses: indeed, because of such investigation, the prosecution dropped some of the allegations which they were making against Lowe and called rebuttal evidence on certain aspects. He referred to
Beckles
[1998] EWCA Crim 1494 in which at p.12 there is a citation from an unreported decision of this court in
Roble
96/02955 CACD Judgment 21 January 1997 where it is said that the purpose of the statutory provisions in relation to the drawing of adverse inferences under
section 34 of the Criminal Justice and Public Order Act 1994
“is to permit adverse inferences to be drawn where there has been late fabrication” and “to encourage speedy disclosure of a genuine defence or of facts which may go towards establishing a genuine defence”. He submitted that, if a judge is to give a section.34 direction permitting adverse inferences to be drawn, this has to be in the context of any defence statement, otherwise the defendant is placed in an impossible position. He also referred to an article by Ian Dennis, 2002 Criminal Law Review 25 suggesting, at p.37 that section.34 “has been increasingly marginalized” and “the inferences it permits may be useful corroborative evidence but the jurisprudence of the section shows that it is an extraordinarily technical rule of corroboration”. He also referred to
Howell
[2003] EWCA Crim 01
para 23 where the court said “the police interview and the trial are to be seen as part of a continuous process” and “adverse inferences may be drawn only in those cases where the defendant could reasonably have been expected to mention the facts in question”. At para 24 it was said “there must always be soundly based objective reasons for silence, sufficiently cogent and telling to weigh in the balance against the clear public interest in an account being given by the suspect to the police”. Lord Thomas submitted that, before drawing adverse inferences from Lowe’s failure to comment in interview, the jury should have had in mind that he was acting on legal advice, was being questioned about detailed sightings over a long period, that it took several weeks before the prosecution were able to serve on the defence 2,500 pages of evidence, that service of the defence statement gave ample opportunity to the prosecution to investigate and that some of his explanations were accepted by the prosecution. The summing up drew no distinction between Lowe and the other defendants who had not given defence statements anything like as detailed as Lowe’s. The jury were entitled to know all the circumstances before deciding whether to draw inferences. Here, because they were unaware of the defence statement, they were effectively misled.
20.
Lord Thomas’ second submission related to the judge’s conspiracy direction. It was the prosecution case that Lowe and Parkinson were the most important figures in the conspiracy of those in the dock. There was a danger that Lowe might be convicted because he was an associate of those involved in drug trading. His defence was that he dealt in stolen cars, some of which, unknown to him, had been involved in drugs dealing. One possible scenario of his involvement in the conspiracy was that he supplied cars knowing drugs had been imported, but this was not the prosecution case. Accordingly, in his final speech, Lord Thomas had focused on the issue as to whether Lowe was a central organiser and stressed that the jury should not convict on some other basis not canvassed. In this context, he criticised the judge’s ruling rejecting the submission that a specific direction should be given that the jury should confine their deliberation to the narrow issue of whether Lowe was the main man in the conspiracy. Furthermore the judge should have given such a specific direction when the jury, not long after retiring, returned with the following question: “If we believe Lowe is not the main man as the prosecution have put the case but we believe him to be part of the conspiracy is he guilty?” The judge, in answer, referred to the use of the word “believe” and emphasised that they must only convict if they were sure. He went on: “If you believe that Mr Lowe is not the main man as the prosecution has put the case but you are sure and the prosecution have made you sure that he is a part of the conspiracy the answer is Yes he is guilty”. Lord Thomas referred to the differing views expressed by this court in
Jones
[1999] EWCA Crim 296 and the Northern Ireland Court of Appeal in
McCandless
[2001] NIECA 8 as to the need for jury unanimity in relation to the basis of a verdict of guilty of manslaughter. It is to be noted that diminished responsibility was in issue in
McCandless
but not in
Jones
. We do not find those authorities helpful in relation to conspiracy.
21.
For the Crown, Mr Turner QC submitted, in relation to the defence statement, that, although his position on this application at trial was neutral, the judge was right to conclude that it was a previous consistent statement and, as such, inadmissible. Equally, the judge was right to take the view that it was no more admissible in evidence than would be a defendant’s proof. As to the judge’s direction in relation to conspiracy and the way in which he dealt with the note from the jury, Mr Turner pointed out that the judge gave the standard Judicial Studies Board direction in relation to conspiracy, concluding with the words that it did not matter where precisely a defendant appeared on the scale of seriousness. It was never the prosecution case that Lowe was
the
main conspirator but he was one of the central figures in the conspiracy. It was not for the jury to decide where each defendant was on a scale of seriousness. That was a matter for the judge. The jury’s question, he said, has to be put in the context of Lord Thomas’ leit-motif in his final speech, that Lowe was said by the prosecution to have a central role and to be in control.
22.
In our judgment although there are cases in which it may be appropriate for the jury to know the date on which a defence statement was served or to see parts of a defence statement either in cross-examination when variation from it is alleged, or in re-examination to rebut a suggestion of recent invention, the judge’s ruling in relation to the defence statement in this case was impeccable. He directed himself as to all the material considerations and took nothing irrelevant into account. His conclusion that there was no proper basis on which this extremely lengthy statement, served four and a half months after interview, should go before the jury is unimpeachable. Like the judge we see no difference in principle between this statement and a defendant’s proof. It was prepared after all the prosecution documentation was served on the defence. It dealt in detail with much of the evidence. It gave Lowe’s response to many of the allegations against him. But, as was pointed out in
Roble,
the purpose of s.34 is to encourage speedy disclosure of a genuine defence and to permit adverse inferences to be drawn where a defence has been fabricated later. When, in interview after arrest, Lowe was asked about the substantial amount of cash in his possession, he did not give the explanations which he advanced at trial. That was a matter from which, if properly directed, the jury were capable of drawing adverse inferences. It is not suggested that they were not properly directed. This ground fails. As to the judge’s direction in his summing up and in his response to the jury question about conspiracy this was, in our judgment, correct. In a conspiracy case it is the role of the jury to decide whether a particular defendant was party to the agreement alleged. It is not for them to make findings as to precisely when a defendant joined a conspiracy or for how long he was a party to it. Nor is it their function to decide what role a defendant played in a conspiracy to which he was a party. Those are matters relevant to sentence, not to whether or not guilt of the offence is proved. The second ground fails. It was for these reasons that, on 23
rd
October 2003 Lowe’s appeal against conviction was dismissed.
23.
For Parkinson, Mr Batty QC, in submissions attractively adopted by Mr Holland on behalf of Davey, submitted, first, that the judge was wrong to refuse no fewer than four applications, at various stages of the trial, that the jury should be discharged. The first application followed evidence given on 2
nd
October when DS Patricson, in the course of cross-examination by Lord Thomas on behalf of Lowe, as to why on a particular occasion of surveillance the officers had not followed Lowe, said: “The intelligence was Parkinson was going to make a drugs transaction and I decided as team leader to stay with Parkinson”. The judge concluded that any possible prejudice to Parkinson could be cured in due course by an appropriate direction. But he was troubled as to what might happen subsequently if defence counsel in their speeches brought the evidence back to mind. Accordingly, he laid down parameters as to the terms of final speeches. In breach of those parameters, submitted Mr Batty, Lord Thomas in his final speech said: “This is the night when there is an understanding that a drugs deal is going to be done”. That led to the fourth application to discharge the jury on 14
th
November. In refusing to accede to that application, the judge commented that the speech had lasted throughout the morning and run into the afternoon and Lord Thomas’ words had not made any impact on the judge, although they did on defence counsel and Parkinson himself. The judge’s provisional view was that what counsel had said had gone counter to the spirit of the judgment he had given dismissing the first application to discharge on 6
th
October. But the judge concluded that the juxtaposition of Parkinson’s name in counsel’s remarks and the reference to “an understanding” would not necessarily have put the jury in mind of the evidence given on 2
nd
October. The judge pointed out that counsel had not referred to intelligence and the remarks were made in a matter of seconds. That speech would be followed over the next several days by many other defence speeches and a lengthy summing up. The judge concluded that any potential prejudice was limited in extent and could properly be met by a direction of the kind indicated in his ruling of 6
th
October, together with a firm reminder to the jury that counsels’ speeches were not evidence and their verdicts must be based only on the evidence. No complaint is made of the direction on this aspect which the judge ultimately gave in the summing up. But, Mr Batty submitted, that prejudice was incurable. The second application to discharge was made on 30
th
October after Lowe in his evidence had said that he had avoided contact with Parkinson because Parkinson had been arrested and was on bail in respect of “a serious offence”. The use of the word “serious” gave rise to the application on the basis that Parkinson would inevitably be prejudiced. Mr Batty does not criticise the terms of the ruling which the judge gave and accepts that, in itself, this would afford no ground of appeal. But, he said, it is a matter to be put in the scales in relation to prejudice which has to be approached cumulatively. A third application to discharge was made on 6
th
November 2000 the day after a front page story had been published in the Sunday People, linking Liverpool football players to drug dealers. This was after Parkinson, in evidence, had told the jury of an innocent association with a Liverpool footballer whom he named. He had also given evidence about knowing the brother of a leading figure in the article and of his links with his brother-in-law, Michael Murphy (to whom he said the two mobile telephones belonged) who was also named in the article. The prosecution suggested that Parkinson had engineered the article; the defence suggested that the Crown had prompted it. After a three day
voire dire,
the judge did not find either of those claims to be established. Mr Batty referred to
Docherty
[1999] 1 Cr App R 274
at 280G where this court said that, when weighing up the danger of bias, a judge should approach the issue “on the basis of the more prejudicial meaning that could reasonably be placed … rather than some lesser prejudicial interpretation”. All four applications had been properly made. The cumulative effect of the matters to which the applications related could not be cured by any direction in the summing up.
24.
Mr Batty’s second ground of complaint related to the directions given by the judge in his summing up with regard to identification. He accepted that a full Turnbull direction was given on 22
nd
November but when, five or six days later, the judge dealt with the identification evidence he failed to point out the particular weaknesses in it. Furthermore, the judge failed to warn the jury of the risk during a surveillance operation, when there was radio communication between the officers, that one officer’s identification might taint another’s. Three of five officers purported to identify Parkinson in the meeting with the Bradford contingent at Chelwood Avenue on 30
th
December 1999. But, in dealing with that evidence, as the general direction had been given some days earlier, it was dangerous not to give further directions as to identification weakness. Mr Batty’s third ground was that the judge unnecessarily and prejudicially highlighted inadmissible material in his summing up. Parkinson had been cross-examined by Davey’s counsel on the basis that he was present at the Chelwood Avenue handover, but Davey in evidence did not support this. The judge ought not to have used this incident as an illustration of what was not evidence.
25.
For the Crown, Mr Turner submitted that the judge considered each of the applications to discharge the jury with the greatest care. He directed himself impeccably by reference to English and Convention law. He expressed himself in terms of
Docherty
as to whether or not there was a real danger of injustice and, on the fourth application, he looked at the cumulative impact of each of the matters. The words used by defence counsel in his final speech had had no impact on the judge or the prosecution. The evidence of DS Patricson and defence counsel’s comments in his speech had to be viewed in context, namely the jury knew that there was a surveillance operation being carried out on Lowe and Parkinson. They knew that a flat opposite Parkinson’s premises had been commandeered for the purpose. Unusually, at the request of those defending Lowe, the jury had seen the observation logs in relation to which the officers had been cross-examined at length about alleged errors. The logs named Parkinson as S1 and Lowe as S2 i.e. they were named targets. It would have been apparent to the jury that the police were not keeping a round-the-clock watch. Yet they were present when something of significance occurred, such as Lowe’s meeting with English, the meeting between Davey and Parkinson on 16
th
November followed by the interception of English on his way east along M62, and, on 30
th
December 1999, as the millennium approached, a Liverpool jury could not have failed to appreciate that there would not have been a dozen police officers in Hawthorne Road when 9 kilograms of heroin freshly imported by Frederick were handed to the Bradford team unless the police had been in possession of information. As to Lowe’s reference in evidence to Parkinson being on bail for a serious offence he was on bail suspected of murder, though ultimately he was not proceeded against. Lowe was entitled to explain why he was keeping away from Parkinson. Bearing in mind that Parkinson’s defence was that he was a professional receiver and that he was anxious to meet Davey, a hard man from Bradford, to settle a score with Saunders who had used a bottle on his, Parkinson’s, wife, the scope for prejudice to Parkinson in linking him with a serious offence was distinctly limited. The jury would be well aware that police suspicions may not be proved and they were, in any event, directed that Parkinson had not been proceeded against in relation to the offence to which Lowe referred. As to the article in the People, it contained no suggestion that the footballer identified by Parkinson had anything to do with drugs. Parts of the article were helpful to Parkinson and the judge gave the jury a clear and strong direction, before he summed the case up and shortly after the articles had appeared, that they must try the case according to the evidence and, if they had read the articles, they were nothing to do with and had no bearing on the case in relation to any defendant.
26.
As to the directions with regard to identification, Mr Turner emphasised that a full Turnbull direction was given not only in relation to the defendants but also as to Frederick’s motorcar. By 30
th
December 1999 officers had been trailing Parkinson and Lowe for months. The judge rehearsed the detail of the cross-examination as well as the evidence in chief of the witnesses bearing on identification, thereby exposing such weaknesses as there were. He did not direct the jury as to the danger of taint but he repeatedly warned them to consider each of the challenged identifications separately. As to the highlighting of the inadmissible evidence this was relevant to the credibility of Davey. The judge made it clear that they were not to regard what was put in cross-examination for Davey as being evidence against Parkinson.
27.
It is plain that the question of whether or not the jury should be discharged was, on each of the four occasions when an application to discharge was made, a matter for the exercise of discretion by the trial judge. He was conducting what, having regard to the seriousness of the offences, the number of defendants and the competing and intermittently conflicting interests of the defendants, was a very difficult trial. It is in our view clear, from the meticulously careful rulings which he gave on each occasion, first, that he properly directed himself as to the relevant law, secondly, that he took into account all appropriate matters and thirdly, on each occasion, he exercised his discretion in a way which was not only permissible but was correct. It is to be noted that, at trial, counsel then appearing for Davey did not support the application to discharge the jury, although in this court Mr Holland, as we have said, criticised the judge for failing to discharge the jury. This ground fails in relation both to Parkinson and Davey. As to the summing up in relation to identification, having read the whole of the summing up, each member of this Court is filled with admiration for the meticulous care taken by the trial judge in the legal directions which he gave and the scrupulously comprehensive and accurate way in which he rehearsed the evidence of witnesses, warts and all. This ground fails. The complaint about supposed prejudicial highlighting of inadmissible material is entirely without substance. The fact that Davey, in evidence, did not support cross-examination on his behalf was highly relevant to his credibility and the judge was scrupulously careful to direct the jury as to what was and was not evidence in such a way that Parkinson cannot possibly have been prejudiced. This ground fails. For these reasons, we dismissed the appeals against conviction of Parkinson and Davey.
28.
We turn to sentence. On behalf of Lowe, Lord Thomas accepted that the judge was entitled to make up his own mind on disputed questions of fact relevant to sentence (see
Solomon and Triumph
6 Cr App R(S) 120) and was free to come to a conclusion as to where the truth lies, (see
McGlade
12 Cr App R (S) 105). He also accepted that it was open to the judge to form views as to the degree of involvement of a particular defendant having regard to what he had seen and heard (see
Martin
[2002] 2 Cr App R(S) 130) and that, where a jury ask a question during the summing up, the sentencing judge is not bound to sentence on the basis that the question indicated that the jury had formed a particular view of the facts (see
Cloud
[2001] 2 Cr App R(S) 435). However, he submitted, the judge’s conclusion that Lowe was an organiser or controller of the conspiracy was one which no reasonable jury, properly directed and applying the criminal standard of proof, could have reached. The judge had drawn inferences from primary facts which, even if established, could not bear such a construction. Alternatively, there was nothing to found an inference that Lowe was more culpable than Parkinson or Davey. Lord Thomas identified fourteen factors referred to by the judge in his sentencing remarks in relation to Lowe, three or four of which Lord Thomas questioned. In addition to the factors to which Lord Thomas referred, the judge also had regard to the £24,000 in cash found in Lowe’s possession. Lord Thomas stressed that the conspiracy did not cease after Lowe and others were arrested, bearing in mind the 49 kilograms of heroin found in Jason Smith’s premises on 8
th
June. Lowe’s lifestyle was modest, living in a council house and, although he admitted dealing in cloned cars, his record did not indicate serious further criminality. No trace of drugs was found at his home and neither his personality nor life achievements suggest a mastermind of an international operation.
29.
In our judgment, there was abundant material justifying the judge’s conclusion, expressed in his sentencing remarks, that Lowe was one of the two big fish in relation to this conspiracy before the court. It suffices to refer to some of the material which Lord Thomas does not seek to challenge: Lowe made two significant trips abroad which coincided with trips made by Frederick; he associated regularly with Parkinson, Neary and Ellis during the period of the conspiracy; he was associated with many of the stolen cars used in the conspiracy, and he used numerous stolen cars, names and modes of travel; he was the person to whom Ellis turned for translation when he was stopped in France with £25,000; on 30
th
December 1999, although Lowe denied it, the judge was entitled to conclude that he was involved in the transfer of the heroin to the team from Bradford; and the judge was entitled to conclude that, on both 30
th
January and 27
th
February 2000, Lowe was involved in the delivery of huge quantities of drugs to Ellis’ home at 107 Upper Parliament Street. As to Lord Thomas’ alternative submission, comparing Lowe’s role with that of Parkinson and Davey, it was, as it seems to us, plainly open to the judge to conclude that, although Parkinson’s role was primarily distribution in the Liverpool area and Davey was head of the Bradford connection, Lowe, in addition to his activities in Liverpool and in support of the Bradford connection, was also involved abroad: two of his foreign trips coincided with Frederick’s; it was to him that Ellis turned for translation; and he had a false passport with a false birth certificate to support it. Lord Thomas did not suggest that, if Lowe was properly characterised by the trial judge as one of the main players, the judge’s starting point was too high. For reasons which we shall explain when dealing with Mr Batty’s submissions, we do not accept that the starting point was too high. Twenty- four years was a severe sentence for Lowe. It was appropriate. His appeal against sentence is dismissed.
30.
On behalf of Parkinson, Mr Batty referred to certain observations by the learned judge suggesting that there might be others higher up in the conspiracy than Lowe and Parkinson. If so, he posed the question, could more than twenty-four years be contemplated for them? Parkinson’s role was national rather than international and the judge accepted that he was not involved with the importation or with the delivery on the 27
th
February. Neary, described as the international facilitator, had received a sentence of only sixteen years. Mr Batty accepted that the fact that, in August 1993, Parkinson received a four year sentence for supplying heroin with intent is an aggravating feature in his case. But he lived modestly in a council house and the police had returned to him half the cash they took on the basis that it had come from the sale of furniture. Twenty-one years, Mr Batty submitted, is “a bit too much”. Mr Batty also pointed out that the appeal has taken what he described as a long time to come to this Court through no fault of Parkinson. It is now three years since he was convicted and grounds of appeal were submitted on his behalf in December 2000. Mr Batty referred to
Ashton Lions and Webber
(The Times 10 December 2002) where, in a case in which there had been unjustifiable delay between the grant of leave to appeal and the hearing of an appeal, for which the appellant was blameless, sentences of eighteen years and fourteen years’ imprisonment were reduced by one year in the light of the appellant’s right to determination of a criminal charge within a reasonable time under Article 6(1) of the European Convention. The Court pointed out that such a result would not follow where there was delay due to circumstances outside the control of the Court or the prosecution.
31.
With regard to the judge’s starting point, although no counsel referred us to any authority, we have considered a number of authorities in recent years including
Middelkoop and Telli
[1997] 1 Cr App R(S) 423,
Sehitoglu & Ozakan
[1998] 1 Cr App R(S) 89,
Kaynak & Others
[1998] 2 Cr App R(S) 283,
Kayar
[1998] 2 Cr App R(S) 355,
Billson
[2002] 2 Cr App R(S) 521,
Unlu
[2003] 1 Cr App R(S) 524 and
Soares & Others
(CACD 5
th
September 2003)
[2003] EWCA Crim 2488
in particular paras. 276, 279 & 290. No useful purpose would be served by a close analysis of the differing facts and circumstances of these authorities. What they show, relevant for present purposes, is that, first, this Court has contemplated the possibility, following a trial, of a sentence of thirty years’ imprisonment for a dominating mind in relation to conspiracy to import massive quantities of class A drugs; and, secondly, even if others were involved at a higher level, twenty-four years is not an inappropriate starting point for one like Lowe playing a senior national and international role in relation to massive importations of heroin. We say massive importations because, although the learned judge rightly did not seek to identify the precise amount of heroin imported in this conspiracy, it cannot conceivably have been less than 100 kilograms, of up to two-thirds purity. We say this, because the judge, for the reasons which he gave, was entitled to conclude that the January 2000 delivery, like the February 2000 delivery which the police seized, was 27 kilograms, 9 kilograms had gone to the Bradford contingent in December, 3 kilograms and 10,000 ecstasy tablets had been intercepted on their way to Bradford in November. Accordingly, even if two or three of the earlier eleven trips made by Frederick had been, as the judge allowed, dummy runs and the amount of drugs had been increasing as the trips went on, the figure of 100 kilograms which we have mentioned must, as it seems to us, be regarded as a conservative estimate. A useful cross-check for this conclusion is provided by the possession of 49 kilograms by Jason Smith in June 2000. Furthermore, we do not accept that Parkinson has any legitimate complaint when his sentence is compared with that of Neary. Neary’s role was international he is 56 and of previous good character, whereas Parkinson, who is 39, has the previous relevant serious conviction to which we have referred. We do not accept that there is in this case any unjustifiable delay on the part of the court or the prosecution. There are eight appellants plus Frederick, all making different complaints about conviction and/or sentence. It was mid-March 2001 before most of the applications for leave to appeal were received by the Court. It was the end of May 2001 before the relevant transcripts were obtained. Waiver of privilege documents in relation to Frederick had to be obtained as he had dismissed his trial counsel. In late November all the appeal papers were assembled and they were despatched to the single judge on 11
th
December 2001. He gave his decision in early 2002 and on 10
th
June the papers went to a summary writer for preparation of the appeal hearing. The summary was completed by late November 2002 and the case was then ready for listing two years after the trial and twelve months after the last defendant (Frederick) had been sentenced. There were, however, problems in agreeing a date convenient to all counsel and, in May 2003, the appeal was listed for 21
st
to 25
th
July. That date was vacated at the request of defence counsel for counsel’s convenience. It seems to us there was, in all the circumstances, no untoward delay. There is no ground for regarding Parkinson’s sentence of twenty-one years as excessive. Accordingly, even assuming that grounds on his behalf had been properly submitted to the single judge, his complaints, whether regarded as an application or an appeal, are dismissed.
32.
On behalf of Neary, Mr Hubbard QC accepted that no grounds of appeal had ever been submitted to the single judge or to this court. The submission on his behalf was based on the fact that, by withdrawing his appeal against conviction, he has now shown remorse. We have read his statement to this court. He is a model prisoner. He is the oldest of the defendants, of good character and hitherto a respectable family man. The impact on him and his family of his sentence has been great. The submission is made that a slightly reduced sentence would have had the same impact: “Sixteen is just a little bit too long”. That is not a basis on which this court could characterise a sentence as either wrong in principle or manifestly excessive. Neary’s role was that of international facilitator. The sentence passed upon him by the learned judge was appropriate. The fact that he now admits his participation in these matters affords no basis for criticising the sentence passed by the learned judge. His complaints are therefore rejected.
33.
On behalf of Davey, Mr Holland submitted that, if Neary and Ellis are properly to be treated as being at the same level of culpability, Davey’s role was less. Furthermore, Frederick, the importer, received only fourteen years. He accepted that the judge was entitled to regard Davey as having been the beneficiary of three importations, on 24
th
October, 14
th
November and 28
th
December, but he was not himself involved in importations. His personal mitigation is that he has been married ten years and has six children aged between 8 and 18. He has behaved well in prison, where he enjoys enhanced status as a category C prisoner; he has a long record but much of it is of no great gravity and eighteen months is the longest period he has previously served; finally, Mr Holland relied on delay with which we have already dealt. In our judgment the learned judge was well placed to assess Davey’s role. It was of course quite different from that of Neary and Ellis and Frederick’s sentence, as the judge expressly stated, was less than otherwise it would have been because of his poor health, whereby serving a sentence would be more difficult for him than for someone not similarly afflicted. In our judgment it is impossible to say that sixteen years was other than an appropriate sentence in his case. His appeal is dismissed.
34.
On behalf of Ellis, Mr McDermott QC, who did not appear at trial, points out that the judge said that Ellis was lucky in that, on one view, he should have received a longer sentence than Neary. He accepted that the judge was well placed during the trial to assess Ellis’ role in providing the safe house in Upper Parliament Street, making deliveries locally in Liverpool and taking part in some ill-defined way in France. His record is that of a petty criminal. He was not central to the conspiracy. At the trial his defence was limited to the question of his knowledge of the drugs with which he was involved. Sixteen years was a heavy sentence which, Mr McDermott submitted, should certainly be reduced if the sentence of others, particularly Neary, were reduced. We have regard to these submissions. We are unpersuaded that the sentence on Ellis was other than appropriate. His appeal is dismissed.
35.
On behalf of Jason Smith, Miss Forsyth, in an admirably succinct submission, while accepting that the amount of heroin and cash housed by Smith was huge, said that the judge could not have given him adequate credit for his guilty plea. On any view, Neary and Ellis were much more deeply and widely involved than Jason Smith, whom the judge was sentencing for possession with intent to supply on a single day. If sixteen years is appropriate on a plea, twenty years or more must have been the contemplated sentence following a trial. Such a level, submitted Miss Forsyth, placed Jason Smith in too high a category. We agree. Although it might not be possible to criticise this sentence if it stood in isolation, for acting as the minder of 49 kilograms of heroin and £38,000 in cash, we think it was too long in the context of the other defendants in this case. Accordingly, we allow Jason Smith’s appeal, quash the sentence of sixteen years and substitute for it a sentence of thirteen years’ imprisonment.
36.
For Hillhands, Mr Rose submitted that, at 23 at the time of the offence, Hillhands was by far the youngest of the defendants. His involvement was on one day only, when he was carrying 9 kilograms of heroin. There were others with him, one of whom may have been fortunate to be acquitted, so he was not apparently trusted by others in the Bradford contingent. We take these submissions into account. We note that Jason Smith is virtually the same age as Hillands and Ellis only few years older. In any event, the judge expressly had regard to Hillhands’ age. It is commonly a feature that couriers of drugs are only involved for a day or so. Hillhands did not plead guilty. 9 Kilograms of heroin is a large quantity of the drug, even though it was on a national rather than international journey. It is impossible to say that eleven years was excessive. His appeal is dismissed.
37.
On behalf of Stephen Smith, Mr Martin stresses that he was involved because he was a lifelong friend of Parkinson. He became involved after English had been arrested in November 1999, carrying 3 kilograms of heroin and 10,000 ecstasy tablets to Bradford. No sufficient credit was given for his plea of guilty on 6
th
September, when the judge accepted that there had been a good deal of pressure on him from other defendants. His role was clearly less than that of Ellis, yet the eleven year sentence he had received on a plea of guilty suggests that, on a trial, he would have received a sentence comparable to Ellis. Mr Martin accepted that Smith was disbelieved on the Newton hearing before His Honour Judge George and was found to have knowingly helped Parkinson on five occasions. The sentence on English was nine years and he had made a delivery to Glasgow in August as well as participating in the way he was at the time of his arrest. Mr Martin also sought to rely on delay. Stephen Smith’s case illustrates the difficulties which can arise when different judges pass sentence in relation to defendants in the same exercise, although we do not, in the present case, make any criticism of that having occurred. It is possible that had English appeared before Judge Maddison his sentence would have been higher than it was. It is possible that if English and Stephen Smith had both been sentenced by Judge Maddison, English would have received a higher sentence and Stephen Smith a lower sentence. In the ordinary way to reduce a sentence of this length by a year would be tinkering, which this court seeks to avoid. But, looking at the position of Stephen Smith, as we must, in relation to the sentences passed on the others involved in this case, we think that justice requires that such a reduction should be made in Stephen Smith’s sentence in order appropriately to reflect his position in relation to the other defendants. Accordingly his appeal is allowed. The sentence of eleven years is quashed and sentence of ten years is substituted.
38.
We express our thanks to all counsel for the expeditious way in which, in relation to conviction and sentence, all these matters have been dealt with before this court.