Case No:  2000/05296/X5
Neutral Citation Number: [2001] EWCA Crim 2376
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT KINGSTON-UPON-THAMES
(His Honour Judge Macrae)

Royal Courts of Justice
Strand, 
London, WC2A 2LL

Wednesday 7th November 2001
B e f o r e :

LORD JUSTICE HENRY
MR JUSTICE GOLDRING
and
MR JUSTICE TOMLINSON

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	REGINA		
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	Ian Donal Coutts-Jarman		

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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G Hooper Esq (instructed for the Appellant)
M Aldred Esq (instructed for the Respondent)

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Henry:
1.	This is the judgment of the Court.  On the 24th August 2000 in the Crown Court at Kingston-upon-Thames before His Honour Judge Macrae, the appellant pleaded guilty to supplying a controlled drug of Class A, and was sentenced to three years’ imprisonment.  He appealed against conviction with the leave of the Single Judge, who also referred to the Full Court his application for leave to appeal against sentence.  On 8th October we heard and dismissed his appeal against conviction, and now give our reasons for that decision.
2.	At the end of 1999 there were four heroin-related deaths in the boroughs of Sutton and Epsom.  As a result the police launched an operation (Operation Dreadnought) in order to arrest those suspected of supplying prohibited substances.  The operation was conducted by way of test purchases which were recorded by covered audio/video devices and other independent surveillance.  All participating officers signed the Instructions to Police Officers Engage in Test Purchase Operations.  As a result, various individuals were arrested including the appellant, Ian Coutts-Jarman.
3.	The appellant had been a heroin user for some 20 years.  He had no drugs convictions as such, but had four previous convictions between 1995 and 1999 (for obtaining property by deception (x3) and handling stolen goods) which, according to his pre-sentence report, were committed in order to buy food for his family while still feeding his drugs habit.  The appellant supplied the heroin to an undercover police officer (“Ange”) in the following circumstances.  Between the 3rd February and 8th February 2000 an female undercover police officer (“Sandie”) telephoned the appellant on the 3rd, 4th and 8th February.  On the 3rd she rang in the morning, saying: “I thought you might be able to sort us out with some brown”, and got the answer that “Unfortunately” he was not dealing and hadn’t been for a little while.  When asked if he knew anyone else who could help, he replied “Not really”, but he then volunteered that he had a contact in Croydon who he had tried earlier, and told Sandie to ring him back.  So she rang back that afternoon.  The appellant said he hadn’t had any joy, though someone else had asked him to make a few enquiries and he had found that it was no good at all.  He said that Sandie could call him tomorrow when he would see what was happening:  “But it is all a bit quiet at the moment.”.
4.	The next day on the 4th she called and was told that nothing had happened and he doesn’t know where he can get anything from, and finally on 8th February when she called he stated that he had “Not really been in business for a while”.  He asked here what she was after and in what quantities.  He then told her that he could not really help her and that she was best getting someone else to sort it out.  The police did not then pursue that particular line of enquiry any further.
5.	Then, some six weeks later another undercover police officer (“Mark”), rang the same number.  He got the appellant and
“I got your number from a geezer down the Circle, a bloke with a pony tail who said you could sort me out.”
The appellant replied that he could not;  he was not doing any business at the moment.  The officer identified himself as Mark, and the appellant asked if he knew him.  Mark said no, he was just looking for some gear and getting a bit strung out.  The appellant said that other people around the Circle were doing business, but he was not doing business any more: “Because I did used to live up here, but I’ve moved now”.  Mark asked him for the numbers of other suppliers, but the appellant said he could not give them and:  “If you rung them up they would blank it.”  He explained:  “... that if they don’t know you they’re going to be a bit paranoid.”  Only a couple of people were doing business, and they were being very careful.
6.	Mark tried again the next day, 24th March.  He reminded the appellant that he had called the day before:
“You said you were dry and that, and I am having a bit of a mare, I’m just giving you a bell to see if you’ve got anything or not.”
The appellant said that he had not, and was not in business.  Mark said that he was suffering and that it was a nightmare.  The appellant asked where he was;  the officer told him and said
“I can always get to you”.  The appellant said:  “I hear what you are saying, but I mean I sorted myself out.  I’m starting work Monday, see, so I’m trying to ...”
He was in fact starting a new job on the Monday, to which the defence attached importance.  Mark said
“Oh right, you ain’t got no numbers or nothing, have you, I’m really struggling now.”
The appellant said that he had not, and Mark said:
“I mean what’s happening round here, I’m getting numbers and it’s a nightmare, it’s all a right pain.  I’ve never known it before like what’s the score then?”
The appellant then said:  “Hold on a second, I’ll see what’s happening.”  There was a sound of a faint conversation in the background.  The appellant then said: 
“No, there’s a geezer here.  I just asked him if he had anything and he hasn’t.”
7.	That terminated that conversation.  But at about 6.00pm, six hours or so later, a third police officer, Ange, rang the appellant.  She explained:
“It’s Ange.  My chap Mark ‘phoned you this morning.  It’s just we’re bang in trouble and I can’t get anything sorted, he’s just booted me out.  I understand what you are saying but we are in trouble.”
8.	The appellant asked where she was.  She told him and he gave her directions to catch a No 80 bus, to go to the last stop and to ring him from the public ‘phone box there.  This she did and ‘phoned about an hour later.  He said he would be there in two minutes.  He was, and after establishing that she was Ange, took 20p from her to ring his supplier.  Ange asked who it was.  He rang and said:
“Hello man, it’s Ian, are you at home?  Have you got, one, see you in two minutes, bye.”
9.	Ange repeated her request.
“Will he be able to sort me out again, at some time if you tell him who I am or something?  I know what it’s like.  What the hell is going on round here, you can’t fucking score.”
The appellant said you could understand people being a bit careful.  Ange said that the situation was “fucking ridiculous” and the appellant replied:
“Loads of friends of mine, well three or four people I know, they got 5½ years each for serving the Old Bill you know.”
10.	Then the appellant said he would be back in five minutes, leaving her with his mobile and his jacket.  The appellant made clear that he could not take her.  She then gave him £20 in notes.  Five minutes later he came back.  He spat a small, light-coloured object out of his mouth and into his right hand.  He told her to wait while he wiped his spittle off.  He then handed her the heroin.  Tests on the spittle showed that it had his DNA.  She returned his jacket and ‘phone.  He asked her if she would sort him out with some of the gear.  She refused on the basis that Mark would go “fucking mental”.  Ange asked if he could sort her out again.  The appellant refused.  Ange asked him what if she couldn’t get hold of anyone.  He said
“No, I hear what you are saying, but I score for you, you know you can sort me out, I might be able to sort something out, you know.”
Ange said:
“I mean if I can ‘phone him sometimes or something.  I know you’ve done me a favour, but I can’t do it, he’ll go fucking bonkers.”
To which the appellant replied:
“That’s absolutely no problem, don’t bother calling me again though, darling.”
11.	Against that background the appellant sought to apply to stay the proceedings on the basis that the conduct of the police was so improper as to bring the administration of justice into disrepute.  At the time we heard the proceedings (8th October 2001) we were assisted by the Court of Appeal (Criminal Division) decision in Attorney-General’s Reference No 3 of 2000, and we have since benefited from the consideration of that appeal (and the appeal in R -v- Loosely (appellant) in their Lordships House, published on 25th October 2001 (hereafter “Looseley”)  As the latter did not alter the conclusions we had reached, we did not find it necessary to reconvene this matter for further submissions.
12.	The judge heard the application for a stay on the basis of the facts as set out in the depositions.  The defence submissions before the judge were that the defendant was positively incited to supply the drugs.  Taking the test as set out by Lord Bingham CJ in Nottingham City Council -v- Amin [2000] 1 WLR 1071, it was submitted that the appellant had been impermissibly “... persuaded, pressurised or wheedled ...” into committing a crime which he otherwise would not have committed.  It is said the he simply “cracked” out of sympathy with Ange’s plight.
13.	The Crown’s reply emphasised that, in all the dialogue, the appellant never said never, in that he was always looking and encouraging further approaches, while making efforts himself to chase up opportunities to supply.  Thus he did not blank his number.  Further, the suggestion that he was pressurised, persuaded or wheedled into supplying is not supported by the facts of the eventual supply.  First, it was six weeks later than the approach by Sandie, and there was nothing to link the two.  Mark applied no pressure.  He did not mention Ange, nor say that she would be ringing.  So Ange rang out of the blue, says that she is Mark’s “booted” girlfriend, and the appellant undertook to supply her despite the fact that he has had no previous contact with her.
14.	The judge’s ruling dismissed the application for a stay because the appellant had not been persuaded, pressurised on wheedled in the context in which those words had been used in Amin, where, as Lord Hoffmann said, in paragraph 70 of his speech in the Lords, Lord Bingham was not intending that those verbs should be given:
“... a disjunctive and technical meaning.  He was intending to invoke the more general concept of conduct which causes the defendant to commit the effect [offence] as opposed to give him the opportunity to do so.”
15.	The trial judge took just such a position when he said of the defendant:
“I am of the opinion that he was given the opportunity to break the law in circumstances where it appears that he would have behaved in the same way if the opportunity had been offered by anyone else.”
such as one seeking supply of Class A drugs.  This was not a situation where, had there been no police operation, the addict might well have not supplied drugs to anyone.
16.	In his speech in Loosely, at paragraph 100 Lord Hulton conveniently summarised the balancing exercise to be carried out by the trial judge:
“Therefore the approach taken by the English cases is that it is necessary to balance the competing requirements that those who commit crimes should be convicted and punished and that there should not be an abuse of process which would constitute and affront to the public conscience.  In carrying out this balancing exercise it will be necessary for the court in each individual case to take into account a number of factors.  These factors have been discussed in the speeches of my noble and learned friends, Lord Nicholls of Birkenhead and Lord Hoffmann and I am in full agreement with the views which they express. I further consider, with respect, that the approach to betaken by a court and the matters to be considered are well set out in the dissenting judgment of McHugh J in the High Court of Australia in Ridgeway -v- The Queen (1995) 184 CLR 19, 82 (save that, in my opinion, a prosecution should not be permitted to proceed where the evidence had been obtained by threats):
‘I do not think that it is possible to formulate a rule that will cover all cases that arise when an accused person seeks to stay a prosecution on the ground that the offence was induced by or was the result of the conduct of law enforcement authorities.  The ultimate question must be whether the administration of justice will be brought into disrepute because the processes of the court are being used to prosecute an offence that was artificially created by the misconduct of law enforcement authorities.  The question should be determined after considering four matters:
(1)	Whether the conduct of the law enforcement authorities induced the offence.
(2)	Whether, in proffering the inducement, the authorities had reasonable ground for suspecting that the accused was likely to commit the particular offence or one that was similar to that offence or were acting in the course of a bona fide investigation of offences of a kind similar to that with which the accused had been charged.
(3)	Whether, prior to the inducement, the accused had the intention of committing the offence or a similar offence if an opportunity arose.
(4)	Whether the offence was induced as the result of persistent importunity, threats, deceit, offers of rewards or other inducements that would not ordinarily be associated with the commission of the offence or a similar offence.’”
We would answers those questions:  (1), no; (2), yes; (3), yes;  and (4), no.
17.	The Grounds of Appeal relied on are:
“1.	The learned trial judge failed to fairly and properly exercise his discretion to exclude the evidence of supply or stay the proceedings as an abuse of process and thereby put the defendant in the position of having to plead guilty to an offence in circumstances which offended against fairness.
2.	The judge’s ruling that the undercover police officers had not incited, persuaded or cajoled the defendant into obtaining heroin for the officer “Ange” was contrary to the evidence placed before him.  The agreed evidence showed that the police officers telephoned him on six separate occasions before he finally agreed to obtain drugs for “Ange”.
3.	The learned judge ignored the fact the defendant repeatedly told the officers that he was not in the business of supplying drugs and that on the last contact before he helped [the] “Ange” obtain heroin, he not only told the officer that he was not in business but also that he had “sorted himself out” and was starting a new job on the Monday [which in fact he did].
4.	The defendant was a man with no convictions for drug offences and was targeted because he was a known drug user.
5.	The police officers admitted in evidence that they pretended they were addicts desperate for drugs and thereby exploited the sensitivity of a drug user towards another user in need.
6.	The conviction is unsafe in that the trial process was vitiated by serious unfairness in that the officers clearly incited or persuaded the defendant to obtain heroin for “Ange”.  The defendant’s right to a fair trial guaranteed by Article 6(1) of the European Convention on Human Rights was contravened.  The judge should have ruled the evidence inadmissible or stayed the proceedings as they constituted an abuse of the process of the court.”
Ground 4
18.	We act on the assumption that the appellant was a target because he was a known drug-user.  This is unsurprising since the operation was aimed primarily at drug suppliers, whose identity would be known to users.  There is no rule of law or fairness restricting test purchases of drugs to purchases from convicted suppliers.
Ground 5
19.	This pretence is true and unobjectionable.  As Lord Hoffmann said in Loosely at paragraph 69:
“The need for an authorised and bona fide investigation into suspected criminality is sufficient to show that the question of entrapment cannot be answered simply by asking whether the defendant was given an opportunity to commit the offence of which he freely availed himself.  This is important but not enough.  The matter is more complicated and other factors have to be taken into account.  Likewise, I do not think that even the causal distinction can be answered by a mechanical application of a distinction between ‘active’ and ‘passive’ conduct on the part of the undercover policeman or informer.  In cases in which the offence involves a purchase of goods or services, like liquor or videotapes or a taxi ride, it would be absurd to expect the test purchaser to wait silently for an offer.  He will do what an ordinary purchaser would do.  Drug dealers can be expected to show some wariness about dealing with a stranger who might be a policeman or informer, and therefore some protective colour and dress or manner, as well as a certain degree of persistence may be necessary to achieve the objective.  And it has been said that undercover officers who infiltrate conspiracies to murder, rob or commit terrorist offences could hardly remain concealed unless they showed some enthusiasm for the enterprise.  A good deal of active behaviour in the course of an authorised operation may therefore be acceptable without crossing the boundary between causing the offence to be committed and providing an opportunity for the defendant to commit it.”
Here the judge concluded that undercover police did not cross that boundary.  It was one that they had well in mind, as was exemplified by the evidence as to the reasons given for the six week gap between Sandie’s telephone calls, and those made by Mark and Ange, namely to keep the degree of persistence within proper limits.
Ground 3
20.	It would be a perverse finding of fact to find that the judge ignored that the appellant was about to start a new job, and had not immediately agreed to supply drugs.  They were facts to be taken into account, and would have been.  The judge attached more importance to the fact that the appellant agreed to supply drugs so promptly on request from Ange.  Matters of the weight of evidence are for the judge entrusted with the decision.  The judge was entitled so to find.
Ground 2
21.	The fact that it was common ground that Sandie telephoned the appellant four times, Mark twice and Ange twice does not compel the conclusion that the police officers had incited the appellant to commit a crime he would not otherwise have committed.  The judge had to decide whether the behaviour of the officers was so forceful or persistent as to cross the line, taking account for any vulnerability.  The judge’s finding is one he was entitled to make.  The discretion was entrusted to him, and there is nothing to suggest that he went outside the proper exercise of that jurisdiction.
Ground 1
22.	This ground, and the first sentence of Ground 6 are simply not made out by the appellant on the evidence.  The judge was entitled to come to the conclusion he did.
Ground 6
23.	There is nothing in the second and third sentences of Ground 6.  The House of Lords in Loosely determined that there is no difference in approach in this matter between Strasbourg jurisprudence and the approach of the law in England and Wales.
24.	For those reasons this appeal will be dismissed.
25.	Turning now to consider the appellant’s renewed application for permission to appeal against his sentence of three years’ imprisonment, we granted leave to appeal, but pressure of time prevented our deciding that issue.
26.	The appellant, having failed in his application for a stay for abuse of process, pleaded guilty.  As appears from the body of the judgment, he had no previous convictions directly drug-related, though he has the four convictions referred to in paragraph 3 above.
27.	The judge made it clear he was sentencing of the basis of a single supply.  The judge took as his benchmark a sentence he passed of 3½ years for a single supply in a case which took place near the Kaleidoscope, a place which we take to be a drug rehabilitation centre.  We regard that fact as a considerable aggravating factor (see R -v- Barnsby [1998] 2 Cr App R (S) 222).  The judge deducted six months to represent the fact that that aggravating feature was not present in this case.  We do not think that was enough.  We would deduct a year, leaving a sentence of 2½ years
28.	To that extent this appeal against sentence is allowed.