Christopher Mark Welsh (Junior) and Others (Appellants & Applicants) v The Queen
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P |
| Judgment Date | 21 May 2014 |
| Neutral Citation | [2014] EWCA Crim 1027 |
| Docket Number | Case No: 201303146 A7, 201303147 A7, 201304072 A7, 201303034 A7, 201303074 A7, 201303019 A7, 201302943 A7, 201303148 A7, 201303042 A7, 201303036 A7, 201303020 A7, 201304985 A7, 20130308 A7, 201303067 A7, 201303420 A7, 201303073 A7, 201303021 A7, 201304188 A7, 201303144 A7, 201304207 A7 |
| Court | Court of Appeal (Criminal Division) |
| Date | 21 May 2014 |
[2014] EWCA Crim 1027
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Mr Justice Blake
and
Mr Justice Green
Case No: 201303146 A7, 201303147 A7, 201304072 A7, 201303034 A7, 201303074 A7, 201303019 A7, 201302943 A7, 201303148 A7, 201303042 A7, 201303036 A7, 201303020 A7, 201304985 A7, 20130308 A7, 201303067 A7, 201303420 A7, 201303073 A7, 201303021 A7, 201304188 A7, 201303144 A7, 201304207 A7
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LIVERPOOL
His Honour Judge Aubrey Q.C.
T2012 8062/8073/8092/8095/8098
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Francis Fitzgibbon Q.C. for Christopher Welsh junior
Mr Damian Nolan for Christopher Welsh senior
Mr Brendan Carville for Mark Shields
Mr Eric Lamb for Christopher Amos, Brian Woods, Steven Tynan, David McIver, Abraham Salim, Steven Wood
Mr Daniel Travers for James Edmonds
Mr Michael Bagley for Christopher Riley, Kevin O'Shea, Liam Clotworthy, James Welsh, Kenneth Fletcher, Kevin Jackson, Anthony Breen, David Chambers
Mr Tyrone Smith for Martin Feeley
Mr Martin Reid for the Crown
Hearing date: 7 May 2014
Between 13–20 May 2013, in the Crown Court at Liverpool, His Honour Judge Aubrey Q.C. sentenced a total of thirty men for their parts in a wide ranging conspiracy to supply drugs of class A (heroin and cocaine) in truly massive quantities. Sixteen of those sentenced now appeal against sentence with the leave of the single judge and four renew their applications each of which had been refused; two require extensions of time. At the start of this judgment, it is appropriate to pay tribute to the care and detailed consideration given to this case both by the judge and by Openshaw J (who considered 19 of the applications for leave to appeal): their work has made our task very much easier than it would otherwise have been. We have also been much assisted by counsel on both sides and, in particular, by Mr Martin Reid for the Crown who has brought focus to the generic points that have been argued.
It is appropriate to start with an overview of the case. Operation Blenheim was a police investigation into an organised crime group in Liverpool which supplied large quantities of Class A drugs to crime groups in Glasgow for onward distribution. The conspiracy involved the use of a number safe houses in Liverpool to store and mix drugs. The drugs were packaged using hydraulic presses and metal moulds. Some of the drugs seized were of high purity, close to importation. Automatic Number Plate Recognition evidence and telephone evidence showed that between September 2011 and October 2012, the conspirators made 111 trips to Glasgow to supply drugs, adulterants and collect cash. In total, 23 kg. of Class A drugs (19 kg. of heroin, 4 kg. of cocaine and 1 kg. of 'crack' cocaine) along with 107 kilograms of adulterants with the potential to realise drugs with a street value of £6.7 million were seized during the course of the conspiracy. However, if the seizures were representative, indications were that the couriers transported between one and two kilograms of Class A drugs as well as adulterants on each trip. In view of the number of trips made it could be inferred that overall the conspiracy involved quantities of Class A drugs in excess of 100 kilograms worth between £100 million and £200 million.
As with any case of this nature, the role and responsibility of the offenders ran from the organisers, making vast profits from the operation through to those at the bottom of the chain of organisation, who, although knowingly involved in a conspiracy, were engaged upon it only peripherally. It was the task of the judge to have regard to s. 143 of the Criminal Justice Act 2003 and, when determining the appropriate sentence for each offender, to consider both culpability and harm. At the same time, s. 125(1) of the Coroners and Justice Act 2009 required the court to follow any relevant sentencing guideline unless it was contrary to the interests of justice to do so: in that regard, the definitive guideline for drug offences (effective for all those sentenced on or after 27 February 2012) was clearly of the highest relevance.
Although a number of the appellants and applicants have individual issues to raise, in the main, the substantive arguments advanced on this appeal concern the applicability of the guideline concerning supply of a controlled drug, its relationship with the guideline for importation, the extent to which a sufficient distinction was drawn between those at the centre of the conspiracy and others and the impact of personal mitigation. We will deal with these issues generically before considering the detail of each of the appeals and applications that have been argued before us.
The Definitive Guideline
Although the judge considered that the definitive guideline did not strictly apply to offences of conspiracy, it is clear from R v McCalla [2012] EWCA Crim 2252 and R v Khan [2013] EWCA Crim 800 that it does. Not only would it be anomalous for commonplace criminal activity to be inside or outside of the guideline depending on the way in which the charge had been framed, as Treacy LJ went on to observe (at para 27):
"[M]uch of the language within the guideline with its reference to differing roles, influence on others in a chain, links to original source, operational or management functions, involvement of others in the operation, awareness and understanding of the scale of the operation, and performing a limited function under direction is entirely consistent with an activity which could be charged as a multi-offender conspiracy."
Furthermore, the structure of the guideline is specifically designed not as a rigid framework with mutually exclusive characterisations of behaviour, but rather as providing a range of identifying characteristics to assist the judge to place a particular offence within the range of such offences and thereby to facilitate consistency of approach to sentencing. Such a framework works equally well for offences of conspiracy as for any substantive offence. As Hughes LJ explained in R v Healey [2012] EWCA Crim 1005 (at para 9):
"It may be that the pictorial boxes which are part of the presentation may lead a superficial reader to think that adjacent boxes are mutually exclusive, one or the other. They are not. There is an inevitable overlap between the scenarios which are described in adjacent boxes. In real life offending is found on a sliding scale of gravity with few hard lines. The guidelines set out to describe such sliding scales and graduations."
That is not to say that the judge's approach to sentence in this case has been undermined by his error in that regard. The judge used the descriptors within the guideline (for leading, significant and lesser roles) for the purposes of distinguishing between the roles played by different offenders and, thus, in fact, correctly used the guideline. He also went on to observe that, in relation to heroin and cocaine, the highest category of harm identified an indicative quantity of drug upon which the starting point was based as 5 kg, accurately identifying the rubric to the guideline which makes it clear:
"Where the operation is on the most serious and commercial scale, involving a quantity of drugs significantly higher than category 1, sentences of 20 years and above may be appropriate, depending on the role of the offender."
As for the relationship between the offence of supplying a controlled drug and importation (or, in either case, conspiracy to commit the offence), it is argued that, as a matter of principle, it is appropriate to ensure that the highest sentences are reserved for the latter offenders: in R v Tourh [2009] EWCA Crim 874 for (among other offences) conspiracy to supply a controlled drug of class A, a sentence of 25 years imprisonment was reduced to 22 years for that reason (articulated at para 43). Whether or not this observation can be elevated to the status of a principle, we doubt that it has any practical application to cases which fall to be considered under the guideline which has identical starting points in relation to both offences for leading and significant roles at category 1 and only marginally reduces the starting point (by one year) for a lesser role in relation to a supply offence.
It may be that the culpability at the very highest level is increased when the complexities of arranging importation are taken into account but we doubt whether leading and significant roles in the most structured, persistent and heaviest supply cases (of which this is an example) merit such a distinction. In any event, the definitive guideline identifies the circumstances in which leading, significant and lesser roles can be determined irrespective of the quantity of drug involved and the guideline is careful to identify the use to which indicative quantities can be put. As for weight itself, Hughes LJ in R v Boakye [2013] 1 Cr App R (S) 2, page 6, [2012] EWCA Crim 838 explained that the weights which determine the categories are not thresholds but indications of the "general region" of weight that goes into...
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