Neutral Citation Number: [2009] EWCA Crim 1688
Case No: 2008/04161/B2
2008/04434/B2 & 2008/04258/B2
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Tuesday  14  July  2009

B e f o r e:

LORD  JUSTICE  AIKENS

MR  JUSTICE  HOLMAN

and

HIS  HONOUR  JUDGE  BEVAN  QC
(Sitting as a Judge of the Court of Appeal, Criminal Division)

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R E G I N A

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BARRY  JOHN  GREEN
JON  SIMON  WATSON
PAUL  COLIN  AUSTIN
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Mr R G Marshall-Andrews QC and Mr P Phillips
appeared on behalf of the Applicant Barry John Green
Mr A Kane appeared on behalf of the Applicant Jon Simon Watson
Mr J Fielding appeared on behalf of the Applicant Paul Austin
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J U D G M E N T

LORD JUSTICE AIKENS: I shall ask Mr Justice Holman to give the judgment of the court.

MR JUSTICE HOLMAN:
1.  In this case we have one renewed application for leave to appeal against conviction and three renewed applications for leave to appeal against sentence, after refusal by the single judge.  They all arise out of a trial at Basildon Crown Court which lasted nearly a month during June 2008.  There were altogether six defendants and nine counts on the indictment.  The core count was count 1, conspiracy to supply a controlled Class A drug, namely cocaine.  There was a range of pleas both to count 1 and to other serious, but lesser, counts.  After a trial the applicant, Green, was convicted on count 1, conspiracy to supply the drugs, and on count 2, conspiracy to commit offences under the Proceeds of Crime Act 2002.  He was sentenced to 23 years' imprisonment on count 1, ten years' imprisonment concurrent on count 2, and to much shorter concurrent sentences for related but less serious offences.  The applicant, Watson, pleaded guilty to counts 1 and 2, and to other less serious offences.  He was sentenced to fifteen years' imprisonment on count 1, and to six years' imprisonment concurrent on count 2.  The judge expressly gave him one-third credit for his plea of guilty.  The applicant, Austin, pleaded guilty to a single count of possession with intent to supply and was sentenced to six-and-a-half years' imprisonment.  

2.  The prosecution followed a sustained period of surveillance by officers of the Serious and Organised Crime Agency which was later summarised by the trial judge, Her Honour Judge Alice Robinson, when she came to pass sentence as follows:
 
		"There were many officers involved, each making thousands of separate observations at different times of different people and events.  Only when these were all put together did the picture emerge which was presented at trial, a picture of clandestine meetings, delivery and collections, anti-surveillance manoeuvres and secret compartments all arranged through extensive mobile phone contact on many different phones."

3.  Watson and Green were said to be the principals who obtained supplies of cocaine from Holland.  It was said that Green generally avoided meetings where drugs or money were exchanged, but was present at some meetings.  

4.  On 29 May 2007 three defendants, Watson, White and Day, were arrested in or near a van which contained 25 kilograms of cocaine in a concealed compartment.  Green was arrested shortly afterwards in a car which contained a parcel of 962,000 euros.  The Crown alleged that this was due to be the payment for the 25 kilograms of cocaine. 

5.  A later search of Green's home revealed a money-counting machine, £21,000 in sterling cash in a carrier bag, and 162,150 euros in a shoe box in which also were traces of cocaine.  There was a quantity of jewellery, of which some was false and some was of considerable value.  

6.  The prosecution case was that Green was heavily involved at the centre of the drug dealing activities themselves, and also with the associated money laundering, the subject of count 2.  

7.  The defence of Green was that he was not involved at all in the drug dealing.  He accepted by his pleas of guilty to other counts that he was in possession of the quantities of euros found in his car and at his house.  His case was that he believed that these related to unspecified criminal activity, other than drug dealing.  

8.  We are indebted to Mr Marshall-Andrews QC and his junior, Mr Phillips, who appeared for Green at trial and now appear pro bono on his behalf today.  In support of his renewed application for leave to appeal against conviction, Mr Marshall-Andrews relies on two specific and focused grounds.  The first relates to the admission before the jury of evidence as to Green's opulent lifestyle.  It was never in dispute that the jury should be told about the sums of cash found in the car and at his home.  At page 62 of the transcript of the summing-up, the judge said:

		"It is said that he was living to a standard which was much higher than might be expected of a man with no apparent means.  He has a large house and many cars and valuable jewellery and was building a swimming pool at his home." 

Mr Marshall-Andrews submits that, apart from the money, this general evidence as to lifestyle should not have been admitted into evidence before the jury and that the judge incorrectly directed the jury as to how to approach it.  His essential submission to us, as it was to the judge, is that the evidence relates to, if anything, past criminal behaviour and does not have any probative connection with the conspiracy charged. 

9.  Counts 1 and 2 of the indictment charged conspiracies between 1 January and 30 May 2007.  Aspects of the lifestyle (in particular the house) were plainly in existence considerably before that period.  Mr Marshall-Andrews submits that if the evidence was admissible at all, it was only admissible as evidence of bad character under the provisions of section 101 of the Criminal Justice Act 2003 and that no gateway had been established under that section for its admissibility.   The Crown, however, had not relied on section 101 at all but, rather, on earlier authorities, and in particular that of R v Morris [1995] 2 Cr App R 69.  In that case this court, allowing the appeal against conviction, said in its judgment:
 
		"In our judgment, evidence of large amounts of money in the possession of a defendant or an extravagant lifestyle on his part, prima facie explicable only if derived from drug dealing, is admissible in cases of possession of drugs with intent to supply if it is of probative significance to an issue in the case."

10.  Mr Marshall-Andrews rightly submits that on its facts Morris was concerned with the possession of money or cash which, he says, is in a separate category from other indicators of an extravagant lifestyle.  However that may be, in the passage we have quoted this court clearly referred in the alternative to evidence of "an extravagant lifestyle".

11.  In a much more recent case, R v Graham [2007] EWCA Crim 1499, this court considered the interrelation of evidence as to lifestyle with the provisions of section 101 of the 2003 Act which was by then in force.  At paragraph 25, Toulson LJ said:

		"There is a further relevant factor raised by the court in argument but on which we have not heard detailed submissions.  Grant was decided long before the Criminal Justice Act 2003.  Under the bad character provisions of that Act, conduct showing that a defendant had supplied drugs in the past would be admissible as going to show propensity.  If the jury is satisfied that the true explanation for the presence of money on a defendant at the time of his arrest is that it represents the proceeds of drug dealing, the distinction between treating it (a) as evidence that he is a drug dealer, or (b) as evidence that he has dealt in drugs and has a propensity to do so, is fine.  In many cases it would be a distinction without a practical difference.  As at present advised, we think, generally speaking, that it would be needlessly complicating for a judge to have to explore such a distinction in giving directions to a jury.  There would also be something highly artificial in the prosecution having to make an application under the Criminal Justice Act for the admission of such evidence as going to show propensity when the evidence is already admissible."

12.  In her ruling in this case, the judge said:

		"The defendant Barry Green applies to exclude evidence the prosecution wishes to call to the effect that he has an extravagant lifestyle but no visible means of support.  The evidence includes that he lives in an expensive house, has valuable cars and jewellery and considerable amounts of cash.  The prosecution says this is evidence that supports its case that Mr Green is part of a conspiracy to supply cocaine and launder the proceeds because it shows he has an illegitimate source of income which provides his wealth.  Mr Green accepts that evidence as to the cash is admissible, but says the rest of the evidence is inadmissible or should not be admitted on three grounds: (i) there is no sound evidential basis for the allegations; (ii) it is evidence of bad character and no application has been made to adduce it as such; and (iii) in any event the evidence is prejudicial and should not be admitted under section 78."

At page 3 of the transcript, the judge referred to the submissions Mr Marshall-Andrews had made then, as now, that the lifestyle could only have been financed by earlier activities before the conspiracy alleged in count 1.  She said at page 3E:

		"Turning to the second point, Mr Green points out that the indictment alleges a conspiracy between 1 January and 30 May 2007 but any funding for his current lifestyle must have been obtained earlier than this and thus on the prosecution's case be the fruits of previous criminal activities, thus it is evidence of bad character other than evidence which has to do with the current allegations for the purposes of section 98(a) of the 2003 Act, and no application to adduce it as such has been made.

		The prosecution's response is that the evidence falls within the category of evidence that was admissible before the 2003 Act pursuant to R v Morris ...." [to which we have already referred.] 

The judge went on to refer to the case of Graham, to which we have also already referred.  Her final ruling was that this evidence should be admitted and that it was not unfairly prejudicial to Green to admit it.  

13.  The judge was well aware that the jury had to be satisfied that the evidence supported the alleged current drug dealing.  At page 4G she referred to the authority of Gordon, where the court clearly distinguished evidence which went irrelevantly to past dealing and evidence which tends to prove the dealing charged.  At page 4G, she said: 

		"As was pointed out in R v Gordon .... evidence that a defendant is in possession of property which is the stereotype of other people as well as drug dealers may be of no or marginal relevance as to whether a defendant is a drug dealer.  Only if the evidence has probative value as evidence that the defendant is a drug dealer -- or, here, part of a conspiracy to supply drugs and launder money -- is it relevant."

Mr Marshall-Andrews has submitted this morning that in that last sentence the judge wrongly confused evidence of a general propensity to be a drug dealer with evidence as to involvement in the crime alleged.  We, for our part, would stress the use by the judge of the present tense in that passage.  She clearly there focused on the correct question, namely: is the defendant part of a conspiracy to supply drugs and launder money?

14.  Mr Marshall-Andrews also submitted to the judge, as he does to us, that in any event the prejudicial effect of the evidence was so great that it should be excluded.  The judge dealt with that at page 5 of her ruling, which we are satisfied was appropriate and correct.  She said:

		"There is no doubt the evidence is potentially prejudicial to Mr Green's case, otherwise the prosecution would not seek its admission.  However, as already indicated, the inference sought to be drawn from it can be rebutted by evidence which is peculiarly within Mr Green's knowledge.  Mr Green is therefore in a unique position to remedy any prejudicial impact it may have."

15.  In the event, the applicant did not himself give any evidence but he called a witness, Mr Mamas, who gave evidence that in recent years he had paid considerable sums to Green for work done by Green at his (Mr Mamas') house.  For their part, the Crown adduced Green's tax returns which showed declared income in the tax years 2004-2005 and 2005-2006 of only £24,000 in each case, which plainly could not have supported the demonstrated lifestyle. 

16.  In refusing leave to appeal, the single judge, Akenhead J, observed on this aspect of the case as follows:

		"1.  The judge was entitled to admit the evidence relating to the 'criminal lifestyle'.  The judge's ruling that the evidence had probative value was obviously right in the context of the property which he had and the large amount of euros in Mr Green's possession.  Although the evidence did coincidentally go to show that he had engaged in criminal activities and thus could arguably be considered as showing he was of bad character, the evidence went to support the Crown's case that his income and capital was derived from illegal drugs dealing which was the subject matter of the main conspiracy charge against him; .... 

		2.  The Crown led enough evidence to show a more than prima facie case that Mr Green's capital assets had been acquired from drug dealing, for instance the Inland Revenue evidence which revealed wholly insufficient income to support the lifestyle which he did lead.  This did not reverse the burden of proof but merely provided evidence which the jury could properly infer was supportive of the Crown's case.  It was open to Mr Green to adduce evidence to undermine and challenge any such inference; he did and it was rejected by the jury."

We agree with those observations.  

17.  It was, of course, very important that the judge should correctly sum up to the jury the way to approach this evidence.  She did so in a passage at page 63 of her summing-up, as follows:
 
		"In relation to this aspect of the case I have to give you another direction of law.  That evidence, if you accept it, does not by itself prove anything against Mr Green.  However, if you are sure of two things you may, if you think fit, take it into account.  Those two things are these: first of all, that Mr Green's explanation for the money and the standard of living, which in summary was that he earned significant amounts of cash for doing building work for Mr Mamas, his wife had inherited money from her family and he also acquired significant equity as a result of buying and selling property.  If you are sure that that explanation by him is untrue and that the money and standard of living can only be explained by Mr Green being part of one or other of these conspiracies to supply drugs or launder money, then, as I say, you may, if you think fit, take that evidence into account when deciding whether Mr Green was part of either conspiracy to supply drugs or a conspiracy to launder money, as alleged in counts 1 and 2 of the indictment respectively.  But if you are not sure as to those two matters then you should not take this evidence into account."

Thus the jury were clearly told that they should not take this evidence as to lifestyle into account at all unless they were (i) sure that his own case as to the source of funding of his standard of living was untrue; and (ii) sure that the standard of living could only be explained by Green being part of one or other of the conspiracies charged.  If they were not sure of that, they should leave the evidence as to lifestyle out of account.
 
18.  In our view, that direction, although criticised by Mr Marshall-Andrews, correctly required the jury to be sure that the lifestyle could only be explained by the conspiracies charged and was a correct direction.  There is, in our view, no arguable ground of appeal under this head.  

19.  The second discrete ground of appeal relates to the use of a yellow Lamborghini car.  On 14 March 2007 officers observed the defendant Watson at a meeting with two men at Frankie and Benny's restaurant in Kent.  There were incriminating conversations between Watson and the other two men; indeed, things were said of a very sinister and threatening kind.  One of the other two men was said to be the co-defendant Day.  The other drove off in a yellow Lamborghini.  The original suggestion of the Crown, maintained throughout all the evidence at trial and indeed, as we understand it, during the closing speech of counsel for the Crown, was plainly that the third man who drove off in the Lamborghini was the applicant Green.  The Crown maintained that suggestion, even though Green had not been identified during a later identification procedure by the officer who had carried out observations at Frankie and Benny's.  

20.  At a very late stage of the trial, namely after the closing speech on behalf of the prosecution but immediately before Mr Marshall-Andrews was due to make his closing speech on behalf of Green, material emerged to the effect that on the relevant date the Lamborghini, which was a hire car, had been hired to, and may therefore have been used by, other men who were also known drug dealers.  These facts became the subject of a number of formal admissions made by the Crown.  Those admissions were placed before the jury prior to Mr Marshall-Andrews making his closing speech.  The effect of the admissions does not in any way preclude that Green was actually driving the Lamborghini when it was seen at Frankie and Benny's, but plainly the material the subject of the admissions indicates that quite different men may have been in possession of, and driving, that car.  Thus on one view the effect of this very late material was seriously to dent what had been a significant plank of the prosecution case.  

21.  In her summing-up, the judge dealt with this aspect of the evidence at page 18 as follows:
 
		"At the end of the trial it emerged that further enquiries had been made about the yellow sports car and that these were the subject of further admissions, which you have before you, so I am not going to read them out.  Those show that the yellow sports car, which was in fact a Lamborghini, was rented the day before, 14 March, by an Anthony Fadden, a convicted money launderer.  It is believed that the rental was paid for by a Robert Brett Deans who had already been convicted of drugs and firearms offences.  He was stopped driving a red sports car on 18 March, which had been rented the day after the yellow one, again by Fadden and paid for by Brett Deans.  He was found to be in possession of £400,000.  He was convicted of a money laundering offence and given a hospital order.  Mr Green submits that as a result it is clear that he, Mr Green, was not at that meeting, the only direct evidence of a conspiracy." 

22.  In refusing leave to appeal, the single judge dealt with this point succinctly.  He said:

		"3.  The evidence as to the Lamborghini was adequately and properly dealt with by the Crown and the judge.  These things happen sometimes and if anything the way that it was dealt with was favourable to the defence."

23.  It seems to us that the summing-up correctly and fairly left the evidence as to the Lamborghini as a straight matter for the jury in the light of the evidence admitted by the Crown that another known and convicted drug dealer had been named as the hirer.  

24.  Apart from his submission that this evidence was adduced in a thoroughly unsatisfactory way which may have adversely affected the deliberations of the jury, Mr Marshall-Andrews now raises a separate, distinct complaint or issue that there may have been an abuse of process in this case.  He submits that even now, despite much correspondence which we have seen and read, the prosecution have not given any clear or satisfactory explanation as to why the evidence and the material with regard to the hirer of the Lamborghini was only produced at so late a stage of trial.  By their letters, the prosecution have repeatedly said that this was as a result of an error or oversight and that there was no abusive behaviour on their part.  Mr Marshall-Andrews submits that the arbiter of whether or not there has been abusive behaviour should not be the prosecution themselves, but the court.  Whilst we understand that submission, nothing has been shown to us today which leads us in any way to consider that there has been, or may have been, an abuse of process in this case.  

25.  We accordingly refuse this renewed application for leave to appeal against conviction by Green, and turn to the renewed applications for leave to appeal against sentence.  

26.  The judge began her sentencing remarks as follows:

		"All six of you fall to be sentenced today for your involvement in the drugs trade, specifically trafficking in cocaine.  Your offences include some of the most serious crimes which ever come before the courts, and be under no illusion that you will be treated severely, and rightly so."

In relation to the applicants Watson and Green, she said at page 3:

		".... you were clearly the ringleaders of the drugs and related money laundering conspiracies."

In relation to the applicant Austin, she said at page 8:

		"Finally turning to Austin, you met Watson on 15 May with a view to arranging delivery of drugs over the next day ....  I accept this was a one-off act of stupidity carried out because of financial difficulties."  

The judge made a number of observations as to her approach to sentencing generally.  She said at page 8 that she had not treated any of the defendants' previous convictions as an aggravating factor in deciding upon sentence.  She said at page 9 that all the sentences for money laundering offences would run concurrently with those for the drugs offences for the following reasons:

		"I accept the submissions that the criminality which relates to these offences is subsumed within that which relates to the drugs offences.  The overt acts relied upon in respect of both sets of offences are the same, there is no evidence of separate money laundering activities ...."

In relation to the pleas of guilty, she said at page 10:

		".... all those defendants who have pleaded guilty deserve proper credit which -- except in Mr Day's case -- will be the full amount of one third."

27.  On behalf of Green, a discrete submission of Mr Marshall-Andrews today is that, by allowing credit of one-third to the defendant Watson, the judge created disparity.  He submits that Watson's plea came at a relatively late stage and that, by allowing a full third and arriving at a final sentence of fifteen years' imprisonment for Watson, there was unfair disparity as between Watson and Green, whose essential roles in these conspiracies were at the same level. 

28.  We reject that argument.  The judge plainly took the same starting point of 23 years for both Green and Watson.  A defendant who fights to the end cannot complain about the precise discount or credit given to another defendant who pleads guilty.

29.  In relation to the applicants Green and Watson the essential question is whether a starting point of 23 years was too high on the facts of this case.  On behalf of Green, Mr Marshall-Andrews frankly said that 23 years was not manifestly too long but it was at the very high end of appropriate sentences for these offences.  On behalf of the applicant Watson, Mr Kane grasped the nettle more firmly.  He submitted that a 23 year starting point is too long.  He said that in a number of authorities different adjectives such as "massive" or "truly enormous" amounts of drugs have been referred to.  He submits that in the end in this case the volume of drugs found was, at 100 per cent purity, a little under 20 kilograms, whereas some of the cases where very high sentences indeed have been upheld, have been cases involving 100 kilograms or more. 

30.  Our attention has been drawn to Attorney General's References Nos 99-102 of 2004 [2005] EWCA Crim 294; [2005] 2 Cr App R(S) 82.  In that case this court referred with approval to an earlier decision of this court in R v Gill and Van der Leest, where the following had been said: 

		"As was pointed out in Warren & Beeley the amount of drugs is only one of the factors to which regard must be paid in the sentencing process.  However, generally speaking and by way of guidance, where a massive quantity of Class A drugs has been imported, a sentence significantly in excess of 20 years, after a trial, should, in our judgment, be reserved for exceptional cases where, for example, the amount of drugs involved is truly enormous or the defendant is to be sentenced for taking part in more than one such importation, or the defendant has a previous record for serious drug dealing, or the defendant is at the pinnacle of responsibility for the particular importation." 

We note the disjunctive approach to all those factor in that quote.  On the facts of that Attorney General's Reference this court said, at paragraph 44:

		"Our conclusion is that the judge's starting point of 20 years for Whiteway, had there been a trial, was at the bottom of the appropriate bracket for a major organiser of wholesale distribution in this country, leaving in mind he was not the top man in relation to the dissemination of those drugs."

In that particular case the volume of drugs concerned was 142 kilograms.

31.  Our view is that a starting point of 23 years on the facts of this case was at the very top end of an appropriate bracket, but cannot be said to be even arguably manifestly excessive.  It follows that the renewed application for leave to appeal against sentence by the applicant Green must be refused.

32.  In relation to the applicant Watson, we also refuse for the same reasons the application insofar as it relates to the length of sentence.  In his case Mr Kane separately and additionally seeks leave to appeal against the travel restriction order imposed by the judge.  She imposed it in the case of Watson because he, unlike the other defendants, had made a number of trips abroad to Holland and another unknown destination plainly in connection with these conspiracies.  At page 13 of her sentencing remarks, the judge said:

		".... there is little doubt that he organised the delivery of drugs from Holland.  In those circumstances I consider it is appropriate to make a travel restriction order in his case pursuant to section 33 of the Criminal Justice and Police Act 2001 and to prohibit him from leaving the UK for a period of five years after his release from custody. ....  His frequent travel, contact with Holland and the apparent ease with which he put these conspiracies into action leads me to conclude it is appropriate to make the order to reduce the risk of re-offending on release."

The judge continued with these words, upon which Mr Kane has focused, and which he submits contain an error:

		"A five year restriction is not unduly onerous; and while it will prevent holidays abroad during that period, by the time the defendant is released from prison his children will be in their teens and able to take such holidays with others (such as their mother, friends and school).  In Article 8 terms, the restriction is in accordance with law, pursues an important objective and is no more than is necessary to achieve it."

The submission of Mr Kane is that in that brief passage the judge failed to give discrete consideration to the Article 8 rights not merely of the children to take holidays abroad, which they might be able to do with others, but also of the applicant Watson to take holidays abroad with his children and family.  

33.  In our view there is nothing in that point.  It is plain that the judge had in mind the general terms of Article 8.  She had to consider the proportionality of the proposed restriction, and there is nothing to suggest that she did not conscientiously consider the position of the applicant Watson.  Thus we refuse all aspects of the renewed application for leave to appeal against sentence in the case of Watson.

34.  The situation of the applicant Austin was plainly different in a number of respects.  First, his involvement was at a much lesser level.  Second, there was much to be said to his credit.  That has been set out in considerable detail by Mr Fielding, who appears pro bono on his behalf today, and to whom we are accordingly indebted.  At paragraph 10 of his grounds of appeal, he lists no less than nine points of personal mitigation.  In summary, these are that Austin has previously done much charitable work for a children's hospice; that he has been a supportive carer of his family; that he has put in much useful work and achievement during his time in prison; and also that some years ago he saved a child from drowning in the English Channel.  Mr Fielding submits that all these points were worthy of particular discount, quite apart from the discount for the plea of guilty.  

35.  There is no doubt that the judge had these points in mind, for she said at page 8 of her sentencing remarks:

		"I have given some -- albeit again limited -- weight to your good character, not only your virtual lack of previous convictions but also the considerable evidence of your support for your family, charity work and selfless act of saving a drowning child.  I also accept that you, too, feel a considerable degree of remorse."

Mr Fielding accepts that a starting point of ten years was appropriate for the role and involvement of Austin in the one matter to which he pleaded guilty, but argues that by passing a final sentence of six and a half years, the judge gave credit only for the plea of guilty and not in the end for these other matters.

36.  We do not accept that submission.  We have paid careful regard to the manner in which the judge dealt with the various sentences on pages 10 and 11 of the transcript of her sentencing remarks.  She had plainly taken an initial starting point of 23 years' imprisonment in relation to each of Green and Watson.  There were, however, certain personal mitigating factors in relation to Watson (not available to Green), quite apart from Watson's plea of guilty.  Thus at the top of page 11, the judge said:

		"Turning to Watson, on count 1, I have taken a starting point of 22 years, discounted in full for your guilty plea ...." 

When she came to Austin, she said:

		"Finally, Mr Austin, I have taken a starting point of ten years, and with a full discount for the guilty plea, you will serve a period of six and a half years' imprisonment."

It was thus the judge's approach to arrive at a "starting point" after crediting personal mitigation available to each of the defendants, but before finally discounting for the plea of guilty.  In our view, the judge's starting point of ten years in relation to Austin contained within it the element of credit that the judge was prepared to give him for his personal mitigation, his good character and saving the drowning child.  It may be that, having regard to his role in this case, that implied an initial starting point which was at the very top end of the bracket, but we have not been persuaded that it was even arguably excessive.

37.  For those reasons the renewed application in relation to the applicant Austin will also be refused.  

LORD JUSTICE AIKENS:  All the applications are refused.  Thank you all for very helpful submissions. 

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