Mr Justice Mackay:
- After a 19 day trial in the Crown Court at Cambridge before HHJ Bate this appellant was convicted by the jury of conspiring between 1 August and 10 September 2007 to supply a class A drug (cocaine) and on 15 August he was sentenced to 12 years imprisonment by the judge.
- He attempted to appeal his conviction but his renewed application for leave was dismissed by the full court (Hallett LJ, Ouseley J and Sharp J) on 26 February 2010, the court directing that six weeks of the time spent in custody would not count towards the sentence.
- On 7 May 2010 at the same court and before the same judge he was ordered to pay a confiscation order under the Proceeds of Crime Act 2002 in the amount of £70,800 within six months or serve 18 months imprisonment in default. This appeal lies against that order.
- Indicted with him were Matthew Coles, who pleaded guilty and was sentenced to eight years imprisonment, and Robert Lee, who was acquitted by the jury.
- On 6 September 2007 police followed the co-accused Cole who was carrying a black pilot case and approached a taxi driven by the acquitted co-defendant Lee. The taxi was stopped and searched in due course and in the case were parcels of uncut cocaine of an aggregate weight of 8kg and purity ranging between 69% and 85%. Also in the bag was documentation relating to a light aircraft part-owned by the appellant, which he kept at North Weald airfield in Kent, a passport belonging to the appellant and a sales receipt dated 25 August relating to the purchase of the pilot case by him.
- Enquiries made at the airfield indicated that the appellant had made three trips in this aeroplane to Le Touquet and back on 26 August, 1 September and 6 September. The prosecution said that these were trips to further the conspiracy to supply cocaine.
- The prosecution also relied on observations carried out on the co-defendant Cole and an analysis of mobile telephone calls passing between the appellant Cole and another male known as "Peter", the pattern of which in relation to the known flights to Le Touquet were, said the prosecution, evidence of the conspiracy in action.
- The customary confiscation statements had been exchanged in accordance with the provisions of the Proceeds of Crime Act 2002. There then followed a hearing on 7 May 2010 before the trial judge at which there was considerable discussion about the entitlement to confiscation and the amount in which any such order if made should be made.
- The stance of the appellant at that time, not then represented by his trial counsel or by counsel who has appeared for him in this appeal, was simply to maintain that he had no involvement whatever with the purchase of the drugs that had been found and had never benefited at all from any of the alleged criminal activity. Counsel appearing for him at the confiscation hearing explained this to the judge and said that in the light of that position taken by the appellant he was not sure that he could put forward any submissions in relation to the question of benefit. He said he had explained to his client how benefit was assessed but the appellant remained in the position that he was not guilty of the charge.
- The issue in this appeal is whether the prosecution had proved in the confiscation proceedings on a balance of probabilities that the appellant had obtained benefit in connection with this criminal conduct in the sense that he had obtained property. The property obtained was alleged by the prosecution to be the drugs themselves which on the most conservative wholesale valuation were valued at £222,000, a figure which is not challenged as a figure in this appeal, nor is the amount of the available assets which was agreed at £70,800. The judge, as will be seen, clearly made a finding that the appellant's role was at the heart of this conspiracy; the real issue in the appeal is whether he was entitled so to do, whether there was evidence to support that finding, and if so whether he gave adequate reasons explaining how he had reached that finding
- Prosecuting counsel, then as now Mr Wilshire, offered to take the judge to the well known leading case of May [2008] UKHL 28; [2008] 1 AC 1028 which dealt, as he put it, with "what is the appropriate approach in relation to those who have a part in the chain…in a case such as this it is still in the crown's submission good law that each person is responsible for the total benefit". To this the judge replied "Yes. A joint and several liability". The discussion then contrasted the position of somebody who played a more subsidiary role where it might be "unjust to fix them with liability for the whole". The judge pointed out that the appellant's difficulty in that regard was that due to his stance of maintaining his innocence he could not seek to mitigate his role in the conspiracy in this way.
- There being no further submissions or evidence from the appellant the judge moved on to make his key findings which we should set out in full.
- After a summary of the facts similar to that which we have set out above he continued: -
"I am sure that [the jury's] verdict was a right one and I can draw from it the following sure conclusions as to the facts for the purpose of the benefit assessment. Firstly that the cocaine consignment in question came into Mr George's possession in France and when it did so he knew it to be controlled drugs. Secondly he then took the drugs in the pilot case in his private plane into this country and knowingly smuggled them into the jurisdiction, and, thereafter, he drove the drugs to the Warmley area and thereon passed them either directly to Mr Cole or through an unknown intermediary down the chain in that way. I was quite satisfied when I sentenced Mr George that he had become willingly involved in this dishonest distribution chain for gain, and by its very nature he was near the top of the distribution chain, well above it reaching street level"
- He therefore came, as he put it, unhesitatingly to the conclusion as a matter of fact and law that the figure of £220,000 – the undisputed wholesale value of the drugs - was properly to be regarded as the benefit obtained by the defendant's particular criminal conduct in this case.
- The reference to the judge's sentencing remarks is important. As part of the sentencing process the judge had, of course, to state what he considered the appellant's role in the conspiracy was, in order to assess his culpability. On that occasion the judge had summarised the facts in relation to the discovery of the drugs in the bag and the enquiries that followed and gave his conclusions in these terms:-
" … on the basis of the jury's verdict I am satisfied you collected the cocaine in France having returned to this country that afternoon, drove it in a hired car from North Weald airfield to Warmley where you passed it on either to Mr Cole or an unknown intermediary on that estate just off the old A10. You were a frequent cross channel flyer and your comings and goings aroused no suspicion either at the small North Weald or the larger Le Touquet airport"
- At the outset of the hearing before us Mr Ganeson conceded that three courses were open to us on the hearing of this appeal, in which the real thrust of his argument was that the judge had failed to identify the appellant's role in the conspiracy or his place in the hierarchy of conspirators.
i) If we considered the reasons for the judge's finding inadequate we could allow the appeal and refer the matter back to the same judge for him to give full reasons for his decision.
ii) In the alternative to i) we could uphold the judges finding and ourselves state what we consider to be the available reasons for it and if so whether they supported the finding.
iii) Alternatively we could quash the order made and apportion the benefit figure between the appellant and other apparent members of the conspiracy.
- Mr Ganeson accepted that a trial judge in such a case is entitled to make inferences from the evidence he has heard which he considers found proved, consistent with the verdict of the jury. These can be and often are robust inferences in cases of this class.
- But his central argument is that the findings of the judge in this case are not justified or explained in any way and betray an absence of any consideration having been given to the appellant's place in the hierarchy of this conspiracy, the capacity in which he handled the drugs and his ability to control the direction of them. Though his written grounds state that the appellant was no more than a "mere courier", to use the language of May, he did not develop that in oral submissions, and it is an argument which, in the absence of evidence from the appellant himself, is impossible to sustain, even though the burden lies on the respondent to prove benefit to the civil standard.
- The law in this area is now well known. It was summarised by Lord Bingham in the Endnote to the case of May, so far as relevant to this case, in this way:-
1) "The legislation is intended to deprive the defendants of the benefit they have gained from relevant criminal conduct, whether or not they have retained such benefit… the benefit gained is the total value of the property or advantage obtained, not the defendant's net profit after deduction of expenses or any amounts payable to co-conspirators.
2) The court should proceed by asking the … questions posed above:
i) Has the defendant…benefited from a relevant criminal conduct…?
3) In addressing these questions the court must first establish the facts as best it can on the material available…in very many cases the factual findings made will be decisive…
6) D ordinarily obtains property if in law he owns it, whether alone or jointly which will ordinarily connote a power of disposition or control, as where a person directs a payment…to someone else. …mere couriers or custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or the proceeds of sale, are unlikely to be found to have obtained that property"
The judge was plainly aware of this case and said so (see para 11 above). The case of Sivaraman [2008] EWCA Crim 1736; [2009] 1 Cr App R (S) 80 referred to by the single judge when granting permission was an example, on different facts, of applying to its own particular circumstances the principles outlined in May and the other leading cases of Jennings v CPS [2008] UKHL 29; [2008] 1 AC 1046 and Green [2008] UKHL 30; [2008] 1 AC 1053. The particular fraud in operation in Sivaraman had run its course and yielded its proceeds, as a result of which its consequences were more transparent than the conspiracy which we are considering. The role of the appellant as a recipient of a stated number of deliveries of fuel on which the full duty had not been paid was established by direct evidence. With respect to the single judge we do not regard it as a casting any particularly helpful light on the task faced by the judge in this case.
- Absent a plea of guilty on a specified and agreed basis, or compelling evidence given by the defendant (neither of which applied here) there will seldom be direct evidence of the precise terms of a drugs conspiracy such as this and in particular whether the conspirators agreed a particular division of the spoils. As Mr Ganesan accepted the court's frequent response to such conspiracies is to find by inference that all the main conspirators are jointly in possession of the fruits of their agreement in the sense defined in the case of May.
- It is perfectly possible to see from the way the case was opened, the summing up and most particularly the judge's remarks on sentencing the factors that he had in mind when making the finding that he did make, namely that this appellant was involved near the top of this particular conspiracy. We therefore consider that his decision should properly be upheld on the basis that it was a finding open to him to make, based on the following facts which were either proved or found by him:-
i) The appellant flew his aeroplane to and from France on 6 September, returning with the drugs in question, and then drove them to Wormley where they were transferred to his co-conspirator Cole.
ii) He used a hired car for this journey, despite the fact that he had available for use the family car, no doubt to cover his tracks.
iii) The case in which the drugs were found was his and contained his passport, his flight documents and a receipt showing that the case had been purchased on 25 August.
iv) This was his third such flight in just over two weeks.
v) The drugs were of high purity, suggesting they were freshly imported and at an early stage of their introduction into this country before the customary cutting and adulteration had been carried out.
vi) The pattern of telephone contact between the appellant, the admitted conspirator Cole and the man known as "Peter" in relation to the three flights from Kent to France was consistent with the operation of this conspiracy.
- All this in our view fully justifies the rejection of any suggestion that the appellant was someone who merited categorisation as a "mere courier" or a "very minor contributor" being paid a fee for his services, to use Lord Bingham's words. There being in our judgment no doubt as to what it was that moved the judge to make the finding that he did make, namely that the whole of the drugs consignment was properly to be regarded as a benefit to the defendant from his particular criminal conduct, there seems to us to be no warrant for quashing this decision and referring the matter back to the judge, as might have been necessary if we were in any real doubt as to how or why he had reached the conclusion that he did reach.
- For these reasons we dismiss this appeal.
