Neutral Citation Number:
[2012] EWCA Crim 794
Case No: 201102832 B3, 201102964 B3, 201103302 B3, 201103580 B3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
HHJ WASSALL at Exeter Crown Court
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
27/04/2012
Before :
LORD JUSTICE PITCHFORD
MRS JUSTICE COX DBE
and
MR JUSTICE BURNETT
- - - - - - - - - - - - - - - - - - - - -
Between :
PAUL FLISHER
TIMOTHY EASTGATE
CHRISTOPHER MICHAEL LEADER
STEPHEN PROCTER
1stAppellant
2
nd
Appellant
3
rd
Appellant
4
th
Appellant
- and -
REGINA
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Paul Hynes QC and Aisling Byrnes Jnr
(instructed by
Edward Fail Bradshaw - Solicitors
) for the
1st Appellant
N Pascoe QC & Jonathan Ray (
instructed by
Parlbys Solicitors)
for the
2
nd
Appellant
Richard Furlong  (
instructed by
McKenzies Solicitors
for the
3
rd
Appellant
John Aspinall QC and Jacqui Vallejo (
instructed by
Julian Jefferson Solicitors)
for the
4
th
Appellant
No attendance by Prosecution
Hearing date: 20 March 2012
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Pitchford :
1.
Between 2 February 2011 and 26 April 2011 at Exeter Crown Court the applicants faced trial on an indictment charging them with conspiracy, between 1 April 2009 and 11 September 2010, to supply the Class A drug cocaine. On 26 April 2011 they were convicted by the jury, Flisher by a majority of 10–2, Eastgate by a majority of 11-1, and Procter and Leader unanimously. Flisher and Procter now renew their applications for leave to appeal against their convictions. We grant Procter the necessary 6 days extension of time within which to seek leave to appeal.
2.
All four applicants renew their applications for leave to appeal against sentence. Eastgate applies for an extension of time of 24 days within which to make the application and we grant that extension.
3.
Eastgate was sentenced upon count 1 and also upon three further counts to which he had pleaded guilty on re-arraignment on 7 February 2011, count 7 (possession of a prohibited firearm), count 8 (possession of a prohibited accessory, a silencer, for a firearm), and count 9 (possession of ammunition without a firearm certificate). He was sentenced to a term of 16 years imprisonment upon count 1, 7 years imprisonment upon counts 7 and 8, and 12 months imprisonment upon count 9. The trial judge, HHJ Wassall, ordered that the sentences for the firearms offences should be served concurrently with each other but consecutively to the sentence imposed upon count 1, making 23 years imprisonment in all. The judge ordered 261 days to count towards that sentence pursuant to section 240 Criminal Justice Act 2003.
4.
On 8 March 2010 at the PCMH, Flisher pleaded guilty to count 3 (possession of a prohibited firearm). Count 5 (possession of prohibited ammunition), and count 6 (possession of ammunition without a firearm certificate) were added later. Flisher was found not guilty of count 4 of the indictment in which he was charged with the unlawful possession of a ‘taser’ weapon. He was sentenced upon count 1 to a term of 14 years imprisonment, upon counts 3 and 5 to a term of 7 years imprisonment, and upon count 6, to a term of 12 months imprisonment. The firearms sentences were ordered to run concurrently with each other but consecutively to the sentence upon count 1, making 21 years in all. The judge ordered 531 days to count towards that sentence.
5.
Procter was sentenced to 9 years imprisonment upon Count 1 with 300 days ordered to count towards the sentence for the purposes of sections 240 and 240A Criminal Justice Act 2003.
6.
Leader was sentenced to 9 years imprisonment upon count 1 with 286 days ordered to count against that sentence.
7.
The prosecution case was that the conspiracy involved, over a period of several months, the supply of large quantities of cocaine to the Devon area. The source of supply in Essex was Eastgate and his right hand man was Flisher. When Eastgate was out of the country the conspiracy continued to function, by inference under the control of Flisher. Dean Birch, an Essex lieutenant, pleaded guilty to count 1 and was sentenced to 8 years imprisonment. Shaun Battle and the applicant Procter in the more junior role, were distributors at the Plymouth end of the conspiracy. Battle was convicted by the jury and sentenced to 12 years imprisonment. James Wright, a courier and transport organiser, was also convicted. He was sentenced to 8½ years imprisonment. The applicant Leader was convicted as a courier. He was stopped on 7 August 2009 while driving southbound on the M5 in the direction of Exeter, carrying 5 kilos of powder containing cocaine with a purity of 4%. Investigation of mobile telephones found in the car led police officers to further accused. Cell site evidence, vehicle detection devices and mobile telephone traffic supported the inference of further deliveries of drugs and/or the collection of money by Leader on four further dates, 7 May, 14 May and 4 August 2009.
8.
The evidence supported similar runs by Wright on six occasions between 3 June and 20 September. The evidence supported similar runs by a further accused, Stephen Gray, on 15 occasions between 11 August 2009 and 13 May 2010. His defence was that he was unaware that he was carrying drugs and he was acquitted by the jury.
9.
Flisher lived with his girlfriend, Lisa Varley, in a substantial property, ‘South Barn’ in Epping, owned by Eastgate. He was in frequent and relevant contact with both Eastgate and Battle. Found at Eastgate’s home on his arrest was a computerised spreadsheet which appeared to record the movement of drugs. At least some of the drugs were identified in the spreadsheet by the initials “SP”. Those initials were found on a label attached to the drugs seized from Leader in August 2009. The same initials were used by Flisher and Eastgate in some of their text messages. The prosecution also relied on lifestyle evidence in support of its case against Flisher. Further, on four occasions during the indictment period before his arrest with Lisa Varley on 14 December 2009, Flisher made visits to the Devon area where the supply was taking place. Flisher’s defence was that he was a friend of Eastgate. He was not involved in drug trafficking but, like Eastgate, was engaged in other ‘business’. He had family reasons to visit Devon. He chose not to give evidence in his own defence.
10.
The applicant Procter was an associate of Battle’s. He lived near Tavistock. The prosecution case was that Procter met the couriers to take delivery of drugs for Battle and to hand over money and make payments. He was, the prosecution said, the user of three mobile telephone numbers ‘495’, ‘672’ and ‘827’. All three were used to make and receive calls implicated, the prosecution said, in the trafficking of drugs. That these phones were being used by Procter was established by the evidence of Carly Edwards to whom the numbers had been supplied by Procter at the funeral of a mutual friend, Soloman Read (aka Peacock). Procter did not give evidence in his own defence, but his case constituted a denial that he was a person referred to as “SP” or that he was the user of 495 and 672. A suggestion was made on behalf of Procter that the user of the disputed phones could have been Soloman Peacock. Peacock died in July 2009 from the effects of heroin abuse.
11.
We consider, first, the renewed application made by Mr Hynes QC on behalf of Flisher.
12.
Lisa Varley was charged in the same indictment in count 2 with converting criminal property, contrary to section 327(1)(c) Proceeds of Crime Act 2002. She was also charged in counts 3 and 4 with possession, jointly with Flisher, of the prohibited weapons, respectively a sawn off shotgun and the taser weapon. It was the prosecution case that Varley was aware of Flisher’s involvement in drug trafficking. As to count 2, the prosecution relied upon the movement of money into and out of bank accounts of which Varley was the sole or joint account holder, and, in respect of the firearms charges, Varley’s knowledge of their presence in the home she shared with Flisher at South Barn, Epping.
13.
Following their arrest and while awaiting interview at Loughton police station, Varley was heard to shout at Flisher in an adjoining cell:
“You’re the drug dealer. I am only here because of you. Money doesn’t grow on trees. Where does it all come from? I will tell them about people turning up at the house with boxes of money.”
On 10 October 2010, following Varley’s release on bail, she sent a text message to Flisher which read:
“U are so going to go under along with all ur bent cronies.”
14.
Both Flisher and Varley were sent for trial upon the firearms charges from Mid-North Essex Magistrates Court to Chelmsford Crown Court. On 7 May 2010 the case was transferred to Exeter Crown Court. Having heard argument on an earlier occasion, on 12 January 2011 HHJ Wassall gave leave for the consolidation of the indictment. Mr Hynes QC had invited the judge on behalf of Flisher to dismiss the prosecution’s application on the ground that the firearms charges could not properly be joined in an indictment alleging conspiracy to supply drugs. Furthermore, he submitted, even if those charges were properly joined, the trial of Varley should be severed so as to avoid prejudice to Flisher. The judge rejected Mr Hynes’ arguments. By 8 February 2011 it had become apparent that Varley was relying in her defence to the firearms charges on duress by her co-accused, Flisher. Mr Hynes renewed his application for severance of the two cases. Again the judge dismissed the application.
15.
Flisher now seeks leave to appeal against his conviction on two grounds:
(1)
The firearms counts were not properly joined in the indictment; and
(2)
If the counts were properly joined, the cases of Varley and Flisher should, in order to avoid prejudice to Flisher, have been separately tried.
16.
As to joinder, Crim PR 14.2(3) provides that an indictment may contain more than one count if all the offences charged (a) are founded upon the same facts or (b) form or are part of a serious of offences of the same or a similar character.
17.
The prosecution relied upon the first limb of the test which reproduced Rule 9 of the Indictment Rules 1971, considered by this court in
Barrell & Wilson
[1979] 69 Cr app R 250
. Both accused had been charged in the indictment with count 1, affray, and count 2, assault occasioning actual bodily harm. The judge had permitted the prosecution to join in the indictment an allegation in count 3 that Wilson had, some two months later, attempted to pervert the course of justice by offering a prosecution witness a bribe to change his evidence. Giving the judgment of the court, Shaw LJ said at p 252-253:
“Mr Jubb, on behalf of Wilson, submitted that count 3, far from being founded on the same facts as count 1, derived from a new and different set of facts which was not only different in its nature but separated by a substantial interval of time from the set of facts which gave rise to counts 1 and 2. He contended that to justify a joinder within the terms of section 4 and rule 9 the subsidiary offence must (to use counsel’s terminology) be an integral part of the primary offences and will not be separated from them by any distance in time.
This contention rests on too narrow a construction of the language of the statute and the relevant rules. The phrase “founded on the same facts” does not mean that for charges to be properly joined in the same indictment, the facts in relation to the respective charges must be identical in substance or virtually contemporaneous. The test is whether the charges have a common factual origin. If the charge described by counsel as the subsidiary charge is one that could not have been alleged but for the facts which gave rise to what he called the primary charge, then it is true to say for the purposes of Rule 9 that those charges are founded, that is to say have their origin, in the same facts and can legitimately be joined in the same indictment.”
18.
It was not suggested in the present case that the firearms charges depended for their potency upon the allegation of conspiracy to supply drugs. The joinder of such charges was considered by the court in
Roberts
[2008] EWCA Crim 1304
,
[2009] 1 Cr App R 20
. In that case a search of the accused’s home led to the discovery of both drugs and firearms. Latham LJ cited with approval paragraph 21 of the judgment of Toulson J (as he then was) in
Cox
[2001] EWCA Crim 728
:
“21.
We accept and follow the construction placed on the words by this court in
Barrel & Wilson
. Of course the words “have a common factual origin” are broad. The degree of overlap could range from something very tenuous to, at the other extreme, a situation where the facts are identical. A slight or tenuous connection with not be sufficient, but nor on the other hand need the facts be identical.”
In
Cox
the court approved joinder of a count alleging driving whilst disqualified and a further count of witness intimidation. The connection was that the accused had threatened the same officer who had arrested him on suspicion of driving whilst disqualified. The court in
Roberts
ruled that the drugs and firearms counts had been properly joined. They arose out of searches which took place on the same occasion. The fact that the defendant maintained that the drugs and firearm had been left by different people on separate occasions was immaterial to the question whether the indictment was properly framed.
19.
In the present case officers attended the home jointly occupied by Flisher and Varley. They were investigating Flisher’s involvement in a conspiracy to supply Class A drugs. Subsequently they discovered evidence which justified also a charge against Varley of laundering the proceeds of that conspiracy. On the occasion of their arrest, the police discovered the prohibited weapons and ammunition. It was the prosecution case that the firearms and ammunition were part and parcel of the drug trafficker’s “tools of the trade” and that Varley was well aware of both. In our view, in no sense can it be suggested that the connection between the firearms and the conspiracy was tenuous in the wider sense of the term “common factual origin” to which Toulson J was referring in
Cox.
The firearms and drugs charges were founded on the same facts. We agree with the judge that there was, upon the prosecution case, a factual origin which was common to the allegations of conspiracy, money laundering and possession of firearms. We reject the applicant Flisher’s first ground of appeal.
20.
The foundation for Mr Flisher’s second ground is the prejudice allegedly suffered by him in consequence of the defence being conducted by Varley. The prosecution relied upon Varley’s shouted remarks to Flisher in the police station and her text message to him as evidence of her knowledge of the source of the money which passed through her bank accounts. This evidence was not admissible against Flisher and the judge explained that position to the jury. However, Flisher’s defence was further shielded by the nature of Varley’s defence to count 2, namely that she had no knowledge or suspicion that Flisher might be involved in drug trafficking. Her remarks in the police station and by text were made, she said, not in consequence of any prior knowledge of Flisher’s activity but in consequence of the allegations then being made by the police. This was an assertion which appears to have been accepted by the jury because they found Varley not guilty upon count 2.
21.
Varley was permitted by the judge to adduce through her own evidence, in support of her defence of duress to the firearms charges, evidence of Flisher’s violent and unfaithful conduct towards her. It is true to say that her account of that conduct, while relevant, had doubtful probative value upon the issue of duress. We accept Mr Hynes’ submission that the evidence was indeed capable of having a prejudicial effect upon Flisher. However, the degree of possible prejudice to Flisher would depend upon the charges in respect of which it was capable of having that impact. Flisher had already pleaded guilty to the firearms charges, save for possession of the taser weapon, knowledge of which was denied by both accused. Evidence of Flisher’s possession of the sawn off shotgun and ammunition was admissible upon the conspiracy count. The jury returned verdicts of not guilty in respect of count 4, possession of the taser, not only in the case of Varley but also in the case of Flisher. It would seem that Flisher was not, as a result of anything Varley said, in jeopardy of prejudice in the jury’s consideration of the firearms charges. It is also plain that the evidence of domestic abuse was simply immaterial to the jury’s consideration of Flisher’s position in count 1. Varley did not implicate him. There was no connection between the allegation of domestic abuse and Varley’s defence to count 2; nor was there any connection with Flisher’s defence to count 1.
22.
The principles as to severance are well known (see
Lake
[1977] 64 Cr App R 172 at page 175). There was not in the present case a joint charge of conspiracy faced by Flisher and Varley; Varley was separately charged. However, both accused were charged with aspects of the same criminal behaviour, Flisher with the conspiracy and Varley with laundering the proceeds. It was desirable that these two cases should be tried together provided that the risk of unfair prejudice to Flisher could be avoided. In his written submissions Mr Hynes’ conceded that the judge provided the jury with a “robust” direction to the effect that Varley’s evidence of domestic abuse could not be used in any way in the case of Flisher. In the course of his oral submissions, however, Mr Hynes’ sought to persuade the court that the impact of the directions given was diminished by the piecemeal way in which the judge dealt with his legal directions. The judge dealt with the evidence in compartments; he gave some of his legal directions at the outset of his summing up and some as he approached the evidence to which they were relevant. The judge was reminded from time to time of the appropriate directions but we do not accept Mr Hynes’ submission that the jury could have been confused on these issues.
23.
At page 20F of the transcript of the judge’s summing up, he said this:
“You have heard about the domestic violence that Lisa Varley alleges she suffered at the hands of Paul Flisher, and you have heard about it because it goes to the heart of her defence, so it is relevant to that issue; but this evidence is simply not capable of making it more or less likely that Paul Flisher is guilty on either of the counts on the indictment that he faces and therefore it is quite irrelevant in the case against him. Setting aside the legal position for a minute, you know from your own experience of life, and the court certainly has experience, that a great many outwardly respectable people become involved in violence in the home when they would not … dream of becoming involved in an offence in any other circumstances, let alone dealing with Class A drugs; so for that reason alone you will see that it would be extremely unfair of you to take it into account when you are considering the case against Mr Flisher … so for those reasons you must take great care to take this evidence into account only when you consider the defence raised by Lisa Varley …”
24.
It will be seen that the judge not only directed the jury as to the legal position but also explained why it would be unfair to allow the evidence to have any impact upon their consideration of Flisher’s case. At page 237 of his summing up the judge returned to some aspects of the evidence given which were inadmissible in Flisher’s case. He repeated his reminder of Lisa Varley’s explanation of her accusations against Flisher in the police station and her later text message, and continued at page 238F:
“… you cannot hold that against Mr Flisher … it is not relevant in regards … his case, … but in this case she has given you her explanation. It is evidence only against her; you cannot hold it against Mr Flisher for the reasons that I have said; it is not evidence in the case against him. So you have to distance, when you are considering his case, those remarks, and you will do it in much the same way that I have directed you to so far as anything Lisa Varley said as to the domestic violence. Just set them aside and consider them only when you come on to consider her involvement in the case as it is alleged to be in count 2 onwards, so set it aside and ignore it when you are considering count 1.”
25.
Mr Hynes submitted in writing that the jury’s acquittal of Varley upon count 2 may give rise to the spectre that, notwithstanding the judge’s direction, the jury were influenced against Flisher by the evidence of domestic abuse. We do not agree. As we have demonstrated there was no connection, even remote, between the evidence of domestic abuse and Flisher’s case upon count 1, and he too was acquitted upon count 4. The jury would have had no difficulty, in our view, keeping the evidence in the compartment in which the judge had directed them it was strictly relevant, the possession of a firearm, to which Flisher had already pleaded guilty.
26.
In conclusion it is our view that the applicant has failed to demonstrate that the judge applied incorrect principles, or that he made decisions as to joinder and severance which were plainly wrong. Finally, we do not consider that Varley’s evidence led to a verdict upon count 1 which was arguably unsafe. We refuse the applicant Flisher’s renewed application for leave to appeal against his conviction.
27.
We turn, secondly, to the grounds advanced on behalf of the applicant Procter. It emerged that Procter not only denied that he had been the user of phone numbers “495” and “672” but also that he intended to maintain that the users of those telephones might have been Soloman Read/Peacock and/or his associates. The prosecution was invited to review its disclosure and to reveal any material relating to Peacock. In consequence, Mr Galloway for the prosecution made an application in private, but on notice, to the judge for a review of PII material. The court has been provided with a transcript of the proceedings which took place in private on Thursday 24 February 2011. The result was that the prosecution indicated to Mr Aspinall QC and other defence counsel its willingness to make an admission in the following terms:
“The prosecution are in possession of intelligence relating to Soloman Read to indicate that from the period 2007 until his death in August 2009 he was involved in the supply (in accounts measured in kilogrammes) of cocaine in the South West of England. There is no intelligence linking him to this conspiracy”.
28.
Mr Aspinall was not content with the final paragraph of the admission. Other counsel objected to the admission altogether. Mr Aspinall recalls that the burden of their objection was that section 10 Criminal Justice Act 1967 permitted only the admission of facts “of which oral evidence may be given”. Counsel argued that since the admission was based on anonymous hearsay evidence of “intelligence”, the admission should not be made. Mr Galloway’s recollection, referred to in his written note to the single judge, was that other defendants objected to the admission because it was contrary to their cases. Following submissions in open court to the judge, a further PII hearing took place in private. Again we have been provided with a transcript. In consequence, in a further ruling given in open court on the same day the judge said this:
“The court has considered the material that the prosecution seek to withhold and the facts of the case and the defences as disclosed. The court has concluded that the following admissible evidence is available to achieve the aims of the defence: firstly, the previous conviction of Read in 2004 for possession [with intent] to supply a Class A drug, cocaine, for which he pleaded guilty and was sentenced to 3 years. That conviction can be proved by the memorandum of conviction and a bad character application can easily be made so far as that is concerned. There has already been introduced into the evidence by Mr Aspinall, on behalf of Mr Procter, a conversation between Read and a police officer when Read tells the officer that he has just done 14 months for supplying cocaine. Finally, the inquest findings, in the middle of the conspiracy period, indicate that Read died from a combination of drink and drugs. I have concluded that this evidence can be adduced by the defence, and taken together, it will ensure that the trial process, viewed as a whole, is fair to all the defendants, but particularly fair to the defendants Leader and Procter. I note that, using the evidence regarding Read in this way, the final line of the proposed admission “there is no intelligence linking him to the conspiracy” would not go before the jury.”
It appears to have been the understanding of prosecuting counsel and the judge that since the other parties in the trial were not prepared to agree the admission, it was not open to the prosecution to make it.
29.
Further submissions were made to the judge in open court. It was now submitted that the prosecution should not be permitted to withdraw its earlier “admission”. The judge ruled that no admission had been made. It had been proposed but not accepted by any party. The judge ruled that the admission was based on anonymous hearsay and could only be admitted in evidence if, under section 114 (1)(c) Criminal Justice Act 2003, “all the parties to the proceedings agreed to it being admissible”. For that reason he would not require the prosecution to adhere to the putative admission. The judge regarded the material to which the defence of Mr Procter could have recourse provided ample protection of his interests in the disclosure exercise. The judge ruled that if Mr Procter gave evidence he would not be permitted to refer to the prosecution’s preparedness to make the admission.
30.
Mr Aspinall now submits that the judge was wrong to rule as he did. He should have required the prosecution to make the admission it had originally proposed. He submitted that the agreement of other accused was immaterial since there was a difference in kind between an agreed fact and a prosecution admission. The latter did not require the agreement of all parties to the proceedings.
31.
Section 10(1) Criminal Justice Act 1967 provides:
“(1)
Subject to the provisions of this section, any fact of which oral evidence may be given in any criminal proceedings may be admitted for the purpose of those proceedings by or on behalf of the prosecutor or defendant, and the admission by any party of any such fact under this section shall as against that party be conclusive evidence in those proceedings of the fact admitted.”
32.
Mr Aspinall submits that there is a material difference between what he calls “an agreed fact” to which all parties may be required to adhere and “an admitted fact” under section 10. It seems to us that a fact may be admitted between any two parties to the criminal proceeding. If all the parties admit the same fact then they are all bound if the admission complies with section 10. However, it is perfectly permissible for some but not all of the parties to admit the fact at issue. Those who decline to admit the fact are not bound by it. If it were otherwise two parties to the proceedings could bind a third without the third party’s agreement. Section 10(1) is explicit that the admission is conclusive evidence against the party making it. It does not require another party to rely on the admission and the admission is not conclusive evidence for any purpose other than that in respect of which the admission was made. In these circumstances, we do not need to decide whether there is any difference between the concept of an admission and an agreement of fact. Provided that the admission complied with the requirements of section 10, it was not binding upon any other party. The judge, if necessary, could have directed the jury of its limited effect, namely that it was irrelevant in the case of any other defendant and applied only in the case of Mr Flisher. Just such a direction would have been required if, for example, the admission concerned an out of court remark made by Procter about another defendant in the absence of that other defendant.
33.
We turn, therefore, to consider whether the putative admission was an admission of “any fact of which oral evidence may be given in criminal proceedings”. The admission was to the effect that someone had told the prosecution that Read/Peacock was dealing in large quantities of cocaine. This is a fact of which ordinarily oral evidence could not have been given without leave because it is a hearsay statement. Formerly, however, it was not unusual for the trial judge, with the approval of the prosecution, to relax the rule against hearsay in order to permit the defence to adduce evidence in cross examination of the officer in charge of the case as to the results of police enquiries; alternatively to permit a formal admission to be made to the agreed effect. Such evidence was adduced so as to do justice to the defence. Since the modernisation of the rules as to hearsay, section 114(1) Criminal Justice Act 2003 is not confined to evidence which the prosecution seeks to adduce against a defendant but hearsay may only be admitted under that section. The leeway formerly afforded by the court to do justice to a defendant is not a preserved common law exception to the hearsay rule under section 118, but section 114(1)(d) was drafted in order to do justice by reversing, in appropriate cases, the effect of
Blastland
[1986] AC 41
(see the observations of Professor JR Spencer, Hearsay Evidence in Criminal Proceedings, 2008, para 10.46). While the defence could not satisfy section 114(1)(c), since all parties to the proceedings did not agree, we can see no reason why the judge could not have ruled the evidence admissible under “the interest of justice” test in section 114(1)(d). While a court might not permit anonymous hearsay to be adduced in favour of the prosecution, it must be recalled that the purpose of the admission was to enable the prosecution to fulfil its disclosure obligations, described in
H
[2004] 2 AC 134
(HC), so as to balance the personal interest of the accused with the public interest which the admission was designed to protect. Had the judge so ruled, we do not consider that section 10 created any barrier to the making of the admission.
34.
We conclude that the judge was in error in accepting Mr Galloway’s change of tack under pressure from Procter’s co-accused. The proposed admission went further than the evidence which the judge considered adequately protected the defendant’s interests. Mr Procter should have had the benefit of the admission that the prosecution was minded to make provided that the admission properly reflected, which it did, the underlying material the effect of which the prosecution concluded it should disclose.
35.
We therefore turn to consider whether the prosecution’s failure to make the admission arguably affected the safety of the jury’s verdict in Procter’s case. As we have said, there was direct evidence from Carly Edwards that the man to whom she spoke and to whom she texted from her mobile telephone “136” to mobile numbers 495 and 672 was the applicant. The applicant chose not to give evidence that he was not the person with whom Miss Edwards was communicating. Her evidence was, therefore, uncontradicted on the main issue in Mr Procter’s case. The admission which the prosecution had been prepared to make was, accordingly, of no probative value to the issue in Procter’s case. The proposed admission made it no more or less likely that Procter or Peacock was the user of phone numbers 495 and 672. Had Mr Procter given relevant evidence as to his lack of access to these telephone numbers and/or Mr Read/Peacock’s access to them, it is just possible that the admission would have provided some tenuous support for it but he chose not to give evidence. We say tenuous because the prosecution had not been prepared to make an admission without the caveat that there was no intelligence indicating any connection between Peacock’s activities and the count 1 conspiracy. As the decision in
Greenwood
[2004] EWCA Crim 1388
demonstrates, issues as to the proper form of admissions should be left to the prosecution and the defence under the light-handed supervision of the judge (see paragraph 41 (iv) per Waller LJ). We would add that when the form of the admission is the product of the prosecution’s disclosure obligations upon which the judge has ruled in private, the judge may well need to take a more active role in order to ensure that proper disclosure is made and that fairness is done to the parties. We have no doubt that the caveat added to the last sentence of the admission, or some form of words to similar effect, was a proper balancing mechanism which Mr Aspinall had no ground to resist. It is important that a jury is made aware in such circumstances of the limitations of an admission; they should not be misled or otherwise invited to speculate in a vacuum of evidence.
36.
Finally, it was submitted that Carly Edwards should have been the subject of a special warning from the judge using his
Makanjuola
discretion. When Mr Aspinall was asked by the court what risk of self-interest there was against which the jury should have been warned, he had nothing to suggest save the possibility that Carly Edwards had been conducting an affair with more than one man without the knowledge of her partner, and that it was easier to implicate Procter than it would have been to implicate others. In our view, there is no substance in this submission. There was no requirement to give a special warning. At pages 132 and 133 of the summing up the judge took care to remind the jury of Mr Aspinall’s propositions to Carly Edwards in cross-examination and her response to them. In our judgment that was sufficient.
37.
We conclude that there is no arguable basis upon which to doubt the safety of the verdict in Procter’s case and we refuse his renewed application to appeal against his conviction.
38.
We turn to examine the applications for leave to appeal against sentence. The judge expressly rejected Eastgate’s assertion that there was any trafficking in contraband tobacco between Essex and Devon. Mr Hynes QC, on behalf of Flisher, endeavoured to persuade the court that the judge could not legitimately exclude the possibility that Eastgate and Flisher were trading in contraband other than cocaine. We reject his submissions. The judge heard the evidence and was entitled to reach his own conclusion. More realistic were Mr Pascoe’s submissions in writing, on behalf of Eastgate, to the effect that the number of trips made to Devon would suggest a total delivery of some 57 kilos of cocaine at an exceptionally low purity of 4%. This was the conclusion reached by the judge. Thus the total weight of pure cocaine delivered was less than 3 kilos.
39.
Counsel conceded that the judge was concerned not only with the total quantity of pure cocaine delivered but also with the length, breath and organisation of the conspiracy. It was conceded by Mr Pascoe and Mr Hynes that Eastgate and Flisher must be treated as the organisers of this conspiracy. The judge pointed to the evidence that the street value of 30 kilos of cocaine was some £600,000. Counsel pointed out that the judge’s sentence upon count 1 in Eastgate’s case (16 years) was at the top end of the range (ignoring purity, a step 2 consideration) for a category 1 offence described at pages 9-15 of the Sentencing Counsel’s Guideline on Drugs Offences (in force in respect of sentences passed after 27 February 2012). Further, and more relevant to the sentencing exercise in which the judge was engaged, the sentence was outside the guidance given in
Aroyewumi
[1995] 16 Cr App R (S) 211, that for those involved in the importation of 5 kilograms of Class A drugs at 100% purity, sentences will be 14 years imprisonment and upwards.
40.
Secondly, this court was asked to consider whether sentences of 7 years in respect of the firearms offences properly reflects the pleas of guilty entered by Eastgate and Flisher. Eastgate was in possession of a Baikal pistol, and Flisher was in possession of a sawn off shotgun, in defence of their criminal enterprise. They were each in possession of suitable ammunition. In our view, it is an aggravating factor that the applicants were in possession of firearms in conjunction with their pursuit of a serious criminal enterprise. The seriousness of the offences was enhanced because the prospect that prohibited firearms may be used was that much increased. We do not consider that sentences of 7 years imprisonment were arguably manifestly excessive.
41.
Thirdly, in the cases of Eastgate and Flisher, the court was invited to consider the principle of totality. No specific reference to the principle was made by the judge in his sentencing remarks but it is clear that he exercised some care in his configuration of the sentences imposed upon each defendant. We do not detect any sign that the judge did not have the principle of totality in mind. Nevertheless, since we are reviewing the sentences as a whole we have reconsidered the issue in the light of the submissions made to us.
42.
Mr Pascoe relied upon the material provided to the judge by way of personal mitigation in Eastgate’s case. We have considered this material. It is well recognised that in cases of this seriousness personal mitigation will need to be quite exceptional if it is to make a material difference to a sentence otherwise required by way of punishment and to protect the public. We do not consider that Mr Eastgate’s personal mitigation falls into this category
43.
We have concluded that the sentence upon count 1 in Eastgate’s case was too long, based upon the guidance provided by this court in
Aroyewumi
and applying the principle of totality which in this case requires the court not to double-count the aggravating feature of the possession of prohibited firearms. We grant leave in his case. We propose that the sentence of 16 years upon count 1 should be quashed and a term of 14 years imprisonment substituted. The sentences totalling 7 years for the firearms offences will continue to operate consecutively making 21 years in all, and the number of days specified will continue to count.
44.
We intend to preserve the distinction drawn between Eastgate and Flisher by the trial judge. We grant leave in Flisher’s case. We propose that the sentence of 14 years imprisonment upon count 1 should be quashed and a term of 12 years imprisonment substituted. The sentences totalling 7 years for the firearms offences will continue to operate consecutively making 19 years in all, and the number of days specified will continue to count.
45.
In our judgment, our decision upon count 1 in the case of the principal offenders has a marginal effect upon those not being sentenced consecutively for firearms offences. It was common ground that Procter made no noticeable monetary gain for his role as a conduit between the couriers and Mr Battle in Devon. He worked under supervision and lived a comparatively modest lifestyle. We grant leave in Procter’s case. We propose to quash the sentence of 9 years imprisonment in his case and to substitute a sentence of 8 years imprisonment with the specified days to count.
46.
The applicant Leader made four journeys to the West Country as a courier of drugs or money and on one of them was caught in possession of 5 kilos of cocaine. He was clearly engaged for monetary gain and had a previous conviction for possession of Class B drugs with intent to supply. We grant leave in Leader’s case. We propose to quash the sentence of 9 years imprisonment and to substitute a sentence of 8 years imprisonment with the specified days to count.
47.
All these proposed orders are provisional. Unless the applicant concerned notifies the court within 7 days of receiving notice of the handing down of this judgment that he wishes further to address the court, the orders respectively to which we have referred will take effect.