Neutral Citation Number: [2007] EWCA Crim 1473
Case No: 2006 01759 B4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT

200505899B4*1

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 26/06/2007
Before :

THE HONOURABLE LORD JUSTICE THOMAS
THE HONOURABLE MR JUSTICE AIKENS
and
DAME HEATHER STEEL DBE
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	Z	Appellant	
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	REGINA	Respondent	

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Mr Dominic Bell for Z
Mr Michael Burrows for the Crown

Hearing dates : 17th May 2007
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Judgment

Mr Justice Aikens : 
1.	Any report of this case is to be in the form:   R v Z,  where Z refers to the appellant.
2.	This is an appeal against sentences passed on Z in the Crown Court in October 2005 and March 2006 in respect of offences contained in three indictments.  All the offences concerned conspiracies to supply large amounts of ecstasy,  cocaine,  amphetamines, cannabis and cannabis resin in  northern England.     
3.	The number of co – defendants and the extent of the matters to be tried were so great that a case management decision was made to have three separate indictments and three trials.  The indictments were drawn so as to reflect the different types and class of drugs involved.    
4.	The first trial took place in the autumn of 2005.   It related to a conspiracy to supply Ecstasy,  a class A drug:  ( we will refer to the Indictment as Indictment A).   The appellant was convicted together with five co –defendants.   On 21 October 2005 the appellant was sentenced to 12 ½ years imprisonment.  The five co  - defendants were all sentenced to lesser terms of imprisonment,  although all the terms were substantial.
5.	The second trial started in January 2006.  That trial concerned a conspiracy to supply cocaine and amphetamines:  (we will refer to that Indictment as Indictment B).  At the start of the trial  the appellant changed his plea to guilty on both counts.   In the second trial the appellant’s six co – defendants were convicted.    They were sentenced to substantial terms of imprisonment at the end of that trial.   The appellant was not sentenced at that stage because he was also a defendant in the third trial.
6.	The third trial,  which took place in February 2006,  related to a conspiracy to supply cannabis and cannabis resin:  (we will refer to that Indictment as Indictment C).  The appellant changed his plea to guilty on 2 counts of conspiracy to supply class B drugs at the start of the trial.   Five co – defendants were convicted.   
7.	The judge sentenced the appellant in relation to the second and third indictments on 8 March 2006,  at the end of the third trial.   In respect of Indictment B,  (concerning a conspiracy to supply cocaine and amphetamines),   the judge sentenced the appellant to 11 years on count 1 (cocaine).  He ordered this to run concurrently with the  sentence of 12 ½ years already passed after the first trial.  On count 2 (amphetamines) the appellant was sentenced to two years, which was also ordered to run concurrently with the other sentences.  
8.	On Indictment C (conspiracy to supply cannabis and cannabis resin), the appellant was sentenced to 2 years,  concurrent to all sentences so far,  for his part in a conspiracy to supply cannabis.  But on count 2  (conspiracy to supply cannabis resin) the appellant was sentenced to 7 years.  The judge ordered that that sentence should be concurrent to that on count  1 of that indictment but should be consecutive to the 11 year sentence imposed on count 1 of Indictment B.  
9.	So the effect of the sentences imposed on  21 October 2005 and 8 March 2006 was that the appellant faced a total sentence of 18 years imprisonment.   
10.	At the time of sentence the appellant was 45.  The judge treated him as a man of previous good character.
11.	It is not necessary for the purposes of this appeal to go into the facts of the three conspiracies in any detail.   It is accepted that the appellant was the leading organiser for the distribution of very large quantities of ecstasy,  cocaine,  amphetamines and forms of cannabis over a period of time.  The organisation was sophisticated.     It is also accepted that the judge was correct to state,  at the end of the first trial,  that the appellant was at the heart of the conspiracy and that, amongst the conspirators,   he was nearest to the source of the drugs.   The judge described the appellant as “careful, clever and cunning” and  someone who had a useful knowledge of anti – surveillance techniques which he could use to advantage and so be able to re- organise after set backs.    None of that is challenged.   
12.	On behalf of the appellant,  Mr  Bell advanced two arguments in support of his overall submissions that the total sentence imposed on the appellant by the sentencing judge was either wrong in principle or manifestly excessive.    The first argument,  which Mr Bell took with admirable succinctness,  was that the judge was wrong in principle to impose a consecutive sentence in respect of the count of conspiracy to supply cannabis resin.     It was submitted that effectively this was all one big conspiracy to supply different types of drugs to northern England.   Therefore this was one series of crimes that were all connected and arose out of the same facts.   There was no reason why the normal rule of imposing concurrent sentences should not be adopted.  
13.	Mr Bell also said that the judge did not take sufficient account of the pleas of guilty in respect of the second and third indictments;   that the appellant was not near the source and that the judge should have paid more attention to the appellant’s previous good character.  
14.	The second argument raised much more substantial questions concerning the correct approach of the sentencing court and the Court of Appeal when a defendant or appellant provides information to the police.     Mr Bell’s first submission on this issue is that the judge did not make a sufficient reduction in the appellant’s sentence to reflect the fact that the judge was given a “text” at the time he passed sentence on 8 March 2006.  The text indicated that important information had been given to the National Crime Squad in February 2006.   The text was therefore provided after the appellant had been convicted and sentenced in the first trial and after he had pleaded guilty at the start of the second trial,  but before he had pleaded guilty in relation to the third trial and before he had been sentenced in respect of the matters covered by the second and third trials.   
15.	The text given to the judge was provided by a responsible officer of the National Crime Squad.   It said that Z had given information on the whereabouts of three caches of firearms.   In two of the locations significant caches of dangerous and illegal firearms and ammunition were found.   The police concluded (reasonably in our view) that it was impractical to make a search in the third area identified because it was too large and a search would have attracted too much attention.   
16.	The firearms and ammunition seized were submitted to forensic and ballistic examination.   At the time of the text,   neither the origin, nor any criminal use of the weapons had been established.   The text also states that the appellant indicated that the weapons belonged to individuals known to the police.  However the appellant was not prepared to give any names.   
17.	The text describes the seizure of the weapons as being of “real importance”,  which would “significantly disrupt organised crime” within an identified area of England and so,  “for this reason is worthy of credit”.    It indicates that the appellant had stated that he would be willing to provide further assistance in relation to the third site.   However, the text also states that the risk to the appellant in providing this information was “low”.   
18.	The sentencing judge heard argument on the possible effect of this text in chambers.   Prosecuting counsel was present as well as Mr Bell for the appellant.    The judge gave a short ruling at the end of argument.  We have seen a transcript of these proceedings.  The judge referred to R v King 7 Crim App R (S) 227,   which is one of the leading cases on the principles to be applied in relation to reductions in sentence when a defendant has given information to the police before sentence is passed.  The judge said that in this case the reduction would be substantial,  particularly because the weapons discovered were dangerous;  they were weapons normally used by professional criminals and they had been found in an area where the level of gun crime is high.   But the judge also noted that the risks associated with giving the information were low and,  more importantly,  that the appellant had not given any names of persons associated with the weapons,  although he had that information.  Nor had the appellant been prepared to assist the police by giving any form of witness statement or evidence.  
19.	That ruling clearly implies that,  without the information Z gave,  the total sentence on Z would have been considerably higher than the 18 years imposed when the judge gave sentence in open court. 
20.	However,  this point does not stop there.   In September 2006 the Serious Organised Crime Agency provided a further “text”.  This was produced after the appeal against sentence had been lodged.  It was specifically written so it could be produced to the Court of Appeal.  This second text gives further information about the results of the forensic and ballistic examinations of the firearms and ammunition.   In summary,  all the forensic examinations to date had proved unsuccessful and no criminal use of the weapons recovered had been established.   The recovery of the weapons and ammunition did not lead to the arrest of any individual and did not open up any other avenues of enquiry.   
21.	A third “text” was produced to us at the hearing of the appeal on 16 May 2007.    This text states that the appellant gave the authorities further,  more specific,  information about the third location of weapons and ammunition.  The information was given after sentence and on three separate occasions between March and July 2006.   No items were found as a result of that information.  Later, yet further information was given.  As a result of that,  two caches of illegal arms were found.   Those weapons and ammunition have been subjected to forensic examination.  At the time of the appeal hearing,  there had been no positive results.   
22.	This last text makes the somewhat Delphic comment that “it is significant that having been in custody for 18 months,  the defendant still retained the ability to locate these weapons”.     It also states that the appellant had indicated he was willing to provide further information to law enforcement agencies in the future.       
23.	 Mr Bell makes three submissions in relation to the first text and the judge’s ruling on it.   First, he submits that the judge was wrong to conclude that the risk to the appellant in providing the information was low.   The location of the caches of arms was only known to a few people.  He submitted that once the arms had been recovered,  suspicion that the police had been tipped off would inevitably fall on those who knew where the arms were hidden.    Therefore there was a significant risk to the appellant.
24.	Secondly, Mr Bell submits that the judge was wrong to rule that the failure to provide names of those associated with the arms must reduce the discount to which the appellant was entitled.   He submits that it is the fact that illegal arms were recovered that is most important,  rather than the identity of the potential users of the arms.   This recovery was particularly important given the particular circumstances of the area concerned at the time. 
25.	Thirdly,  Mr Bell submits that the judge was wrong to conclude that because Z did not provide a witness statement or give evidence that meant that the discount on sentence must be less.     He submitted that any statement by this appellant would not be credible,  given the fact that the jury in the first trial had disbelieved his evidence.  Therefore neither the police nor prosecuting authorities would be able to use any statement that the appellant gave.
26.	In relation to the two texts that have been produced since the appellant was sentenced by the judge,  Mr Bell submits that the Court is entitled to take them into account and that it should do so.   The result,  he argues,  is that the total sentence passed on the appellant should be reduced very significantly from the 18 years imprisonment imposed by the sentencing judge.   
27.	The common law principles to be applied in relation to sentencing when a defendant has given assistance to the authorities were summarised by Lord Bingham CJ in R v A and B [1999] 1 Cr App R(S) 52.    We need not repeat them all here.    But we note two particular points made in the principles set out by Lord Bingham.   The first point is found in the third principle set out by the Lord Chief Justice,  where he states: 
“If the information given is accurate,  particularised,   useful in practice,  and hitherto unknown to the authorities,  enabling serious criminal activity to be stopped and serious criminals brought to book,  the discount may be substantial….Where,  by supplying valuable information to the authorities,  a defendant exposes himself or his family to personal jeopardy,  it will ordinarily be recognised in the sentenced passed.  For all these purposes,  account will be taken of help given and reasonably expected to be given in the  future.”

28.	The second point is emphasised in the fourth principle set out by Lord Bingham.    There he states that if a defendant is convicted and sentenced without giving information or without expressing a willingness to do so,   then the Court of Appeal will not usually take account of information that is subsequently supplied after sentence.   Lord Bingham says that this is because the Court of Appeal is a reviewing court,  not one with original jurisdiction so far as sentencing is concerned.   He also points out that if the Court of Appeal were to take into account information subsequently given then that might encourage defendants or appellants to hold information in reserve in the hope that it could be deployed to assist their argument in an appeal against sentence.   That is unprincipled and cannot be encouraged,  although it may be appropriate to make representations to the Parole Board or what is now the Ministry of Justice.  
29.	In setting out the fifth principle to be applied,  Lord Bingham accepted that there may be exceptional circumstances where the Court of Appeal may take account of circumstances after sentence has been passed.   This will be so where the true value of the information given or promised could not be properly appreciated when sentence was passed;  or its value exceeds what could reasonably be expected when sentence was passed.   That situation arose in the subsequent cases of R v K [2003] 1 Cr App R (S) 6 (page 22),   and R v A [2006] EWCA Crim 1803,   but we need not set out the details of those cases here.
30.	We have deliberately referred above to “the common law principles”,  because this topic is now partly governed by statute,  viz.   sections 73 and 74 of the Serious Organised Crime and Police Act 2005.    These provisions came into force on  1 April 2006.   Neither the Act nor the relevant commencement order have any transitional provisions relevant to those sections.   It is therefore unclear whether it applies to cases where the offences that took place before the commencement of the provisions of the Act but sentence was passed after the commencement date;  or whether it applies only to cases where both offence and sentence took place after the commencement date.   
31.	These provisions create a new scheme which permits a court to give discounts for sentences to offenders who give information to the authorities or who offer to do so,  but this agreement has to be in writing and must be made with a specified prosecutor.    The provisions are noted in a comment on R v A  by Dr David Thomas at [2006] Cr LR 1080.    Dr Thomas poses the question of whether the new scheme has any effect on the conventional or “common law”  practice and principles to which we have referred above.  We asked counsel for their submissions on this point.   Both counsel submitted that the new statutory provisions had no effect on the existing common law rules.   Mr Burrows for the prosecution told us that there had been no attempt to use the new statutory procedure in relation to the appellant.   
32.	We do not need to decide this point for two reasons.   First,  it seems to us that the new statutory provisions cannot apply to a case,  such as this,  where both the offences and the sentence took place before the Act came into force on 1 April 2006.   Secondly,  as we read section 73(1) of the 2005 Act,   the statutory regime will only apply following a plea of guilty by a defendant.   In this case,  the appellant was convicted in relation to the first Indictment,  although he did plead guilty in relation to the other two.  (We note in passing that Section 74  only applies where a defendant has been sentenced in the Crown Court after he has entered into a written agreement to give assistance to the prosecutor.   That section permits the prosecutor to refer the case back to the court by which sentence was passed in certain,  specified,  circumstances).    
33.	Overall,  we have concluded that the provisions of the 2005 Act  do not apply to the circumstances of this case at all.   Accordingly,   we must apply the common law principles to this case.
34.	As we have said,  the submission of Mr Bell is that the judge should have imposed on the appellant an overall sentence that was much less than the total of 18 years imprisonment he was given.    In  the light of Mr Bell’s submissions,  there are effectively three points for this court to consider.  First,  whether the consecutive sentence was wrong in principle.  Secondly,  given  the totality of the criminality in this case and the text that was before the judge,  whether the sentence he imposed was manifestly excessive.  Thirdly,  whether the further texts to which we have been referred should be taken into account by this court and,  if so,  whether that should lead to a reduction in the sentence imposed by the judge.
35.	On the first point,  the judge was concerned to impose a total sentence which was appropriate for the total criminality of the appellant in these cases,  taking into account all the information he had available to him,  including the text of March 2006.  This aim of the judge is clear from his statements on page 2 of the sentencing remarks of 8 March 2006.    He also said that he intended to impose a deterrent sentence.   We are sure that,  in principle,  he was entitled to do so.    
36.	In relation to Indictment A, (on which Z was convicted),  the prosecution case was that it was a sophisticated and determined conspiracy to supply and transfer 6 kgs of ecstasy tablets in England.  In excess of 30,000 ecstasy tablets were recovered.   That means that,  given the appellant’s position in the conspiracy,  the starting point for sentence,  after a trial,  would be in the region of 14 years or more.    In relation to Indictment B,  concerning cocaine and amphetamines,   over 5 kg of cocaine and 25 kg of amphetamines were recovered.   These figures also suggest a very long sentence, given the guilty plea was entered at the last minute.   In relation to Indictment C, a total of about 150 kg of cannabis resin and 15 kg of cannabis was recovered.   Those figures also suggest a very long sentence,  particularly as the guilty plea in that case was also made at the very last minute.    
37.	Therefore,  given the appellant’s part in these conspiracies,   his conviction on the first of the three indictments,  the very late guilty pleas on the second and third indictments and the total amount of drugs involved,   it is obvious that the appellant would have faced a very heavy sentence indeed if he had not had the benefit of the text that was before the judge.     If the judge had been sentencing the appellant for all the matters together without the text,  then a total sentence  of well in excess of 20 years  could not have been regarded as excessive.     However,   the judge had chosen to sentence the appellant after his conviction on the first trial in respect of the  offences in Indictment A, although he must have been aware of the other charges that the appellant faced.    The sentence imposed after the first trial (12 ½ years), was perfectly proper for that conspiracy charge.    The appellant then chose to plead guilty (at the very last minute) to other very serious offences.   The judge would not have been doing his duty if he had not imposed consecutive sentences in relation to the matters covered by Indictments B and C.     Therefore,  there was nothing improper,  in the circumstances of this case,  in imposing a consecutive sentence for count 2 on Indictment C. 
38.	On the second point,  we do not accept Mr Bell’s submission that the judge failed to give sufficient credit for the text that was before him.    It is clear from the judge’s remarks after the hearing in his chambers that,  as a result of the text, the judge would give the appellant a substantial discount from the sentence he would otherwise have received.  We agree with the judge’s analysis of the position.    A defendant can only expect to get the maximum possible discount for a text where the information enables serious criminal activity to be stopped and serious criminals brought to book.    The text before the judge acknowledged that the recovery of the illegal arms as a result of the information given by the appellant was of real importance and that it would disrupt organised crime within a certain area.   But the recovery did not enable serious criminal activity to be stopped and it signally failed to lead to the apprehension of serious criminals.  It must be appreciated that it is information that leads directly to the identification of serious criminals that will attract the highest discount. This is not only because, (as the information with which we were provided with demonstrated),   that is the most valuable to the Serious and Organised Crime Agency, but also because the provision of such information will often carry a high risk to those who provide the information.    Therefore the judge was,  in our view,  manifestly correct not to give the maximum possible benefit to the appellant for the text,  nor anything like the maximum benefit.
39.	On the third point,  the question is whether the new texts that have been provided to this court should lead us to reduce the sentences imposed by the judge.    We are certain that they should not do so.   The appellant provided further information in relation to the third location after sentence had been passed.  It was only after the police had attempted to find arms and failed that the appellant gave useful information that led to the recovery of illegal weapons.   
40.	This is not one of those cases which fall into the exceptional situation identified by Lord Bingham CJ in R v A and B,  (see the fifth principle at page 57 of the report), in which it is legitimate for the Court of Appeal to take account of information supplied by an appellant after the original sentence has been passed.   In our view this is clearly a case where the appellant decided to try and improve his position after sentence had been passed by the judge on 8 March 2006.   Therefore this court cannot and will not take these further texts into account.
41.	Accordingly,  this appeal fails and is dismissed.