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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Anderson v R [2010] EWCA Crim 615 (30 March 2010) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2010/615.html Cite as: [2010] EWCA Crim 615 |
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM INNER LONDON CROWN COURT
HIS HONOUR JUDGE CHAPPLE
T20077234
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE JACK
and
HHJ RADFORD (HONORARY RECORDER OF REDBRIDGE) SITTING AS A JUDGE OF THE C OURT OF APPEAL CRIMINAL DIVISION
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WYATT ANDERSON |
Appellant |
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- and - |
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REGINA |
Respondent |
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Mr Ian Hope (instructed by Complex Casework Unit, Crown Prosecution Service) for the Respondent
Hearing dates : 18 March 2010
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Crown Copyright ©
Mr Justice Jack :
"2. The prosecution resulted from Operation Perigee by the National Crime Squad, an investigation into the smuggling of illegal Turkish immigrants into the United Kingdom. The immigrants were flown into small airfields in the United Kingdom on a private six seater Cherokee Piper aeroplane and then driven to London. The operation started following two sightings of illegal immigrants in the vicinity of an airfield in May 2004 and the police conducted surveillance on all the defendants between that time and July 2004.
3. It was alleged that Hassan organised the flights into the country and that Anderson was part owner and pilot of the plane. The other five defendants played lesser roles, collecting and distributing the immigrants once they had landed in the United Kingdom.
4. The prosecution relied on video surveillance of Anderson landing the plane twice on 2nd July and immigrants disembarking, airfield logs of flights into and out of the country, evidence from a hand held GPS recovered from the plane, evidence of reconnoitering activities at remote airfields, credit card receipts, hotel bookings and telephone calls."
The appellant did not give evidence at the trial. Hassan did although it was curtailed when he refused to be cross-examined further.
"27. When the judge came to sentence these applicants, he said that it was impossible to tell how many people had been smuggled into the country as a result of the well-oiled conspiracy in which they were involved, which owed much to the extensive experience Hassan had required from people smuggling over the years. He had admitted that he had been at it for 10 years. He needed partners to assist and he found one in Anderson who possessed both a plane and knowledge of remote air strips and was willing to fly in the illegal cargo. When not flying Anderson often reconnoitered new air strips. The operation was commercial and lucrative. This was 'club class smuggling'. Account was taken of the fact that the illegal entrants were not exposed to any danger. However the offences were aggravated by the fact that a number of the illegal entrants were relatives, friends or associates of established, violent and often ruthless Turkish criminals operating in this country. Both applicants had withdrawn their pleas of guilty, so were not entitled to any credit for admitting guilt, indeed neither of them had shown a jot of contrition. The judge rejected their defences of duress and was able to do so because he had heard all the evidence in the case. He said that Anderson was an essential part of the conspiracy. The deceptions he practiced to operated the illegal flights became all the more understandable in the light of his extensive previous convictions which demonstrated that for the majority of his life he had made it his business to cheat and deceive.
28. It is submitted on behalf of Anderson that he should not have been treated as a principal in this conspiracy. It had emerged that his plane was merely one of many methods used by the organisers of this wider conspiracy in their people smuggling operations. He should be treated therefore as a mere courier and as such his sentence was manifestly excessive.
29. We do not accept this submission. The judge clearly formed the view that Anderson was playing a far larger role than that of courier. The use of a plane on a number of occasions and a plane of which he was a part owner clearly put him in a much higher league than some of the others involved in this conspiracy who merely made single trips in cars from airports to cafes in London to deposit those who had been flown illegally into this country. The application in respect of Anderson for leave is therefore refused."
"I have already explained to Mr Anderson in the course of his submissions this morning it is not the benefit accruing solely to Mr Anderson as a result of the operation of this conspiracy that I must take into account, it is the benefit accruing jointly to all co-conspirators; that is clear from the case of May, from which I have read."
"Mr Anderson, like it or not, there is a case called R v May [2008] UKHL 28, decided in the House of Lords not very long ago and what that says is that the benefit figure from criminal conduct is the benefit to all the conspirators in this case because they all hold that jointly."
"(4) A person benefits from conduct if he obtains property as a result of or in connection with the conduct.
(7) If a person benefits from conduct his benefit is the value of the property obtained."
"This must ordinarily mean that he has obtained the property so as to own it, whether alone or jointly, which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else."
"15… As David Clarke J pointed out in the Court of Appeal, the judge approached the assessment of the appellant's proceeds on the basis that any moneys received by his associates from the sale of the drugs were held by them jointly with the appellant as proceeds in which they were all fully interested."
Lord Bingham approved the following paragraph in the judgment of David Clarke J:
"46. Whether the proceeds of sale received by [the appellant's associates] in the present case were initially received on their own personal behalf or on behalf of the conspirators as a whole was a matter for the judge to decide on the evidence before him. In fact, there was evidence on which he could find that the appellant was the ringleader and controller of the conspiracy and in those circumstances he was entitled to infer that the others were acting in accordance with his instructions, receiving proceeds of sale on behalf of the conspirators as a whole before retaining for themselves such amounts as had been agreed with the appellant. In our view this part of the judge's decision is not open to criticism."
"32. In R v Gibbons [2003] 2 Cr App R (S) 169 the defendant was one of four conspirators who had between them obtained £220,000 by fraud. Bu there was no evidence before the trial judge to enable him to determine how the proceeds had been divided between the conspirators or, it seems, to decide that they had been obtained jointly. He therefore divided the sum between the four, although failing (para 66) to specify the sum of benefit which he attributed to the defendant. This equal division was criticised in argument in the Court of Appeal, but was rightly upheld. The case was one which clearly called for a confiscation order. It would have defeated the purpose of the legislation to allow lack of information, which only the defendant and her co-conspirators could provide, to preclude the making of an order. An equal division was the fairest solution available in the circumstances."
In contrast in May the appellant 'was found to be the joint principal, indeed the driving force, behind the fraud' once he had become involved: see [2008] 1 AC at 1033B. In Jennings the court was concerned with a restraint order pending the criminal trial. The Committee concluded in paragraph 14 of its opinion:
"Whether the appellant obtained the benefit of the fraud jointly with his co-defendant remains to be decided, but there was clearly sufficient material to support the making of a restraint order."
"It is now known that a trust deed was executed at the time of purchase. It surfaced very late in the day and by way of a side issue. It came to light to the Crown and to the court's attention during the course of Mrs Anderson's application to release some of the funds, which were restrained by this court. The surfacing and knowledge of that trust deed is in sharp contrast to the statement of Mr Anderson served in the course of these proceedings. I read from that statement, which is signed by Mr Anderson and dated 9 February 2007 :
'My wife and I remain the legal owners of the property. It was our intention that it would be held for the joint benefit of the whole family, both as a result of our natural affection and because of the contribution each member made and would ultimately have been inherited by my two step-children. There has never been a trust deed or other agreement setting out in what shares the beneficial interest of the property was handled in. I believe, therefore, that the property is subject to a constructive trust and that I need legal advice as to the extent of my own interest in the property.'
It is abundantly plain that by paragraph 13 of Mr Anderson's statement that he and his legal advisers (no doubt acting on his instructions), were setting up the argument that Mr Anderson had no share in Rowan House, that the intention was for his wife and her children from her first marriage to inherit the property. In other words, there would be a 100% resulting trust in favour of wife and daughters. The trust deed of course flies in the face of that contention, because, looking at the trust deed, the intention of the parties, I am satisfied beyond per adventure at the time that the trust deed was signed, was as set out in the trust deed."
"1. THE TRUST
The Trustees shall hold the Property and, when it is sold, mortgaged, or otherwise disposed of, the proceeds of any such sale, mortgage, or other disposition upon the following trusts:
1.1 until the Property is sold, as a family home to be shared by the Beneficiaries; and,
1.2 when the Property is sold, (or when any disposition other than a sale is effected), the proceeds of such sale or other disposition shall, after the repayment of any mortgage(s) to which the Property is then subject, be held by the Trustees to pay the same to each of the Beneficiaries in the relevant proportions, each Beneficiary to be entitled to receive his or her or their relevant proportion."