Neutral Citation Number: [2011] EWCA Crim 792
Case No: 201003194/B3 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 
 
Date: Thursday, 10th March 2011
 
B e f o r e:
LORD JUSTICE PITCHFORD 
MR JUSTICE TREACY 
HIS HONOUR JUDGE KRAMER QC 
(Sitting as a Judge of the CACD)
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R E G I N A 

v 

SORAYA FRA MARRON
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Mr A Morris appeared on behalf of the Applicant  
Mr M Bashir appeared on behalf of the Crown  
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J U D G M E N T 

1.	LORD JUSTICE PITCHFORD:  This is an application for leave to appeal conviction and sentence referred to the Full Court by the Registrar.
2.	At Harrow Crown Court before Her Honour Judge Dangor the applicant faced an indictment containing two counts.  In the first she was charged with being knowingly concerned in an attempt fraudulently to evade the prohibition on the importation of a Class A drug (cocaine), contrary to section 170(2) of the Customs & Excise Management Act 1979.  In the second she was charged with conspiracy to supply a controlled drug of Class A (cocaine).  The basis for count 1 was that the applicant believed the substance she was importing was cocaine when in fact it was the drug Phenacetin.
3.	On 10th May 2010 the judge withdrew count 1 from the jury but permitted count 2 to proceed.  The factual basis for count 2 was that the applicant knew that she was delivering a cutting agent to a destination in the United Kingdom, intending it to be used for the purpose of supplying cocaine.
4.	As Mr Morris, who represented the applicant at her trial and has appeared before the court today, submitted there was evidence in the prosecution case which the prosecution suggested might enable the jury to reach a conclusion to convict either upon count 1 or count 2 but not both.
5.	On 11th May 2010 the applicant was convicted by the jury.  The applicant did not give evidence in her own defence.  The sole ground for the appeal is that the judge should have withdrawn the case from the jury at the close of the evidence for the prosecution.
6.	Mr Morris has advanced a secondary argument to the effect that having withdrawn count 1, the judge should have explained why she had done so in order that the jury could understand how they should approach count 2.  It is therefore necessary for us to consider the state of the evidence, as it was at the close of the prosecution case.  In doing so we intend to make reference only to the principal features of that evidence.
7.	The applicant is Spanish.  She was born on 7th May 1977 and has two teenage children.  On 7th December 2009 she arrived at Luton airport from Madrid with two large trolley‑type suitcases.  When her luggage was searched at Customs it was found to contain a fine white powder.  The applicant said it was African flour.  She dipped her finger in the substance and placed her finger in her mouth.
8.	Subsequently the powder was found to be Phenacetin, used in some parts of the world as a painkiller, but in the United Kingdom as a cutting agent by drug dealers for cocaine.  The applicant said that she was going with the flour to meet a man called "John" at an African restaurant next to the Etap Hotel in Birmingham.  The applicant's shoes and clothing were swabbed.  Traces of cocaine were found.
9.	While she was detained at the airport the applicant answered her mobile phone.  She said it was "Max" who was calling ‑ Max being a friend of the man, John.  Whilst sitting with an interpreter the applicant telephoned a man in Spain called Johnny.  He told her to tell the Customs officer that the substance she was carrying was laundry chemical.  It transpired that the applicant had made previous similar trips.  She had stayed at the Etap Hotel in Birmingham for one night on 7th September 2009 and paid in cash; she stayed on 6th October 2009 also for one night and paid in cash.
10.	The prosecution looked for restaurants in the area of the Etap Hotel and investigators identified two African restaurants.  The manager of the Savannah restaurant in Bristol Street, Birmingham, said there was no one called John associated with the restaurant although mail had been received at the restaurant addressed to a John and had been returned.  The manager had never heard of this applicant.  The owner of the Somaga restaurant, also in Bristol Street, gave evidence that she knew no one called John who was connected with the restaurant and she did not know the applicant.
11.	The prosecution invited the inference that the applicant knew perfectly well that she was not carrying flour.  Had the story been true it would have been confirmed by one of the restaurants in Birmingham.  It followed, according to the prosecution case, that she was giving a false account to Customs because she knew the true nature of the substance which she was carrying.  There was only one reason why the applicant would have been importing 44 kilos of Phenacetin and that was to make supplies to drug dealers for cutting purposes.
12.	The applicant's own association with cocaine was established by the analysis of swabs taken from her clothing.
13.	The question for the judge was whether upon the evidence the jury could safely conclude either that the applicant believed she was importing the cocaine (count 1), or that she knew that she was carrying a cutting agent with the intent to which we have referred (count 2).
14.	The judge came to the conclusion that count 1 could not be left to the jury because there was simply no evidence upon which the required inference could be drawn.  There was however sufficient evidence to enable the jury to consider the count 2 inference, which the prosecution invited.  In our view, the judge was right to conclude that count 2 could properly be left to the jury.
15.	Secondly, Mr Morris submits to us that the jury required an explanation from the judge as to why it was that she had withdrawn count 1 from them.  However, when the court posed the question:  why was it that the jury should have received such information, and how would its absence have affected the jury's deliberations, Mr Morris has difficulty in explaining.  Once count 1 had been removed from the indictment for consideration by the jury, the jury had to concentrate upon one scenario only, namely, that if they were to convict at all, it could only be on the basis that they were sure, first, that the applicant knew what was the substance she was carrying, namely Phenacetin, and secondly, that she was carrying it intentionally for the purposes of conspiracy to supply controlled drugs of Class A.
16.	In our view, the absence of any explanation from the judge as to count 1, far from complicating their task concentrated their minds upon the issues which they had to resolve.  If they were less than sure of the ingredients of count 2, to which we have referred, then they were bound to find the applicant not guilty.
17.	We have considered the summing‑up.  The judge was explicit in her directions to the jury, as to the participation of the applicant and her knowledge, which the prosecution was required to prove before guilt could be established.  We have no reason to doubt the safety of the jury's verdict and accordingly leave to appeal against conviction is refused.
18.	As to sentence, the judge was informed that if all 44 kilos of Phenacetin was used for cutting cocaine, the resulting street value of the cocaine would have been between £2.4 million and £3.1 million.  The judge referred to the appeal of R v Wolin [2005] EWCA Crim 3066.  In that case, the appellant had imported 3.85 kilograms of Lignocaine, believing it to be cocaine.  The court on that occasion, (Rafferty J and Mackay J) approved a sentence of 5 years for the attempted importation.  The judge thought that was on the basis of a guilty plea, in fact there had been a trial and the sentence originally imposed, after trial, was 8 years' imprisonment.  The judge sentenced this applicant to 9 years' imprisonment on the basis that the applicant was a courier, far down the rungs of the conspiracy.  She took account of the fact that the applicant came from an abusive relationship and would be required to serve her sentence a long way from home.  
19.	It seems to this court that if the applicant was fully conversant with the details of the conspiracy to which she had lent herself, particularly if it was anything like that proposed in the expert evidence given to the judge, then a sentence in double figures would have been appropriate.  the quantity of the cutting agent imported was very substantial.  In this case, on the other hand, the court had no information as to the destination of the powder, nor the extent of the conspiracy, nor the quantity of cocaine actually sold, nor the extent of the applicant's knowledge of the enterprise.  In our judgment, the judge was right to treat the applicant as a minor figure in the operation, whatever the scale of the enterprise really was.
20.	Having regard to these important uncertainties, we consider that a sentence of 9 years was excessive even after a trial.  Giving due weight to the applicant's personal mitigation, we think that the appropriate sentence is seven‑and‑a‑half years' imprisonment.  We shall therefore grant leave to appeal against sentence, we shall allow the appeal and substitute a sentence of seven‑and‑a‑half years.  Time spent on remand will continue to count.