Littlefield, Aranguren and Others
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 20 June 1994 |
| Judgment citation (vLex) | [1994] EWCA Crim J0620-24 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 92/3414/X3, 92/4797/X5, 93,2752/X5 92/5350/Y2 |
| Date | 20 June 1994 |
[1994] EWCA Crim J0620-24
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: The Lord Chief Justice of England (Lord Taylor of Gosforth) Mr Justice Waterhouse and Mr Justice Bell
No. 92/3414/X3,
93/1638/X3,
92/4797/X5,
93,2752/X5
92/5350/Y2
MR PETER THORNTON QC and MR JOHN O'HIGGINS appeared on behalf of THE APPELLANT AROYEWUMI, BIOSHOGUN, ARANGUREN and LITTLEFIELD
MR EMMERSON appeared on behalf of THE APPELLANT GOULD
MR ALAN SUCKLING QC and MR STEPHEN ROBBINS appeared on behalf of THE CROWN
Monday 20 June 1994
THE LORD CHIEF JUSTICEThese are five appeals against sentences of imprisonment for offences of being knowingly concerned in the importation of cocaine or in one instance for possessing cocaine with intent to supply it. In each, the basis upon which the quantity of drugs seized was assessed at the trial has been challenged. Money values were put upon each seizure by the Customs and Excise, purporting to be the amount realisable from the ultimate consumers. Although this approach of assessing "the street value" has been adopted for some years, it is argued that figures used in the five cases under appeal were unrepresentative and unfair. More fundamentally, it is submitted that a more satisfactory basis for assessing the importance of a consignment of cocaine is by weight rather by street value.
The leading case which laid down sentencing guidelines for drug offences was Aramah 1982 4 Cr App R(S) 407. There, this Court suggested the length of prison sentences appropriate for the importation of "Class A drugs and particularly heroin and morphine". Lord Lane CJ, at page 409, said:
"Large scale importation, that is where the street value of the consignment is in the order of £100,000 or more, sentences of 7 years and upwards are appropriate. There will be cases where the values are of the order of £1 million or more, in which case the offence should be visited by sentences of 12 to 14 years. It will seldom be that importer of any appreciable amount of the drug will deserve less than 4 years."
The Court also laid down sentencing guidelines for importations of the Class B drug, cannabis. But there, the length of sentence was related not to the street value of the consignment but to its weight (see pages 409 —410). The reason for the different approaches was probably that cannabis is not as a rule diluted or adulterated before use. By contrast, Class A drugs such as cocaine and heroin may well be "cut" with another substance between importation at high purity and ultimate sale in small "deals" to consumers.
In Martinez 1984, 6 Cr App R(S) 364, this Court made it clear that the Aramah guidelines drew no distinction between different Class A drugs and applied to cocaine and LSD as well as to heroin. In 1985, Parliament enacted the Controlled Drugs (Penalties) Act which increased the maximum sentence for importing Class A drugs from 14 years to life imprisonment. In consequence of that change and of the growth of the hard drugs trade, in Bilinski 9 Cr App R(S) 360, this Court altered the scale laid down in Aramah by increasing the guideline sentences for importing Class A drugs. Lord Lane CJ, said that a consignment with a street value of the order of £100,000 or more should attract a sentence of 10 years and upwards and, if the street value is of the order of £1 million or more, 14 years and upwards would be appropriate.
We stress that these figures were guidelines only and they dealt with only one factor in the sentencing exercise —the measure of the drugs in question. There are, of course, other important factors for the sentencing judge to consider such as the role played by the individual defendant, whether he has previously been convicted of drugs offences and, by way of mitigation, whether he has pleaded guilty or rendered assistance to the prosecuting authority.
At the heart of these appeals is the method which has been used to assess street value and its application in these cases. We admitted expert evidence on this topic on behalf both of the appellants and of the Customs and Excise Authorities.
Mr Aitken, called for the appellants, has worked in the field of drug abuse for 20 years and has been an independent consultant since 1975. Mrs Conners (formerly Miss Kwik) is a research analyst with long experience of prohibited drugs and is presently a research analyst with Customs and Excise based at the National Co-ordination Unit. They were the principal witnesses on each side but we also heard from two statisticians, Dr Balding for the appellants and Dr Bassett for Customs. Also called, were Dr King, Director of the Forensic Science Laboratory at Aldermaston, two police officers experienced in drug squads and, on behalf of the appellant Gould, Mr Poulter, a director of the National Drugs Advice Agency.
The practice has been to use four factors to determine street value. Two of these, the weight of the consignment and its purity at the time of seizure can be accurately measured. The other two factors, average purity at street level and average price at street level, have to be based on data obtained from a range of sources. Those averages have, the Customs maintain, to be taken into account because imports of a high purity are usually adulterated or "cut" before they reach the consumer and because prices vary with the amount sold, with the locality and with current availability, amongst other factors. It was conceded, on behalf of the Customs Authorities, that the averages deduced could only be a notional guide.
Average purity is assessed by assimilating the actual purity figures of seizures, region by region. Those figures are rounded down to the nearest 5% (which favours defendants). They are analysed by the drugs intelligence laboratory and a national average is determined. Because the figures vary from time to time, they are revised quarterly.
Mr Aitken said that to bring average purity into account was unfair because although he agreed it was more likely than not that the drug would be "cut", this was not necessarily so and in an individual case it might be unfair to build in that factor. We are satisfied on the evidence that "cutting" occurs in such a preponderance of cases, that for the purposes of a notional figure to be considered only as a guide and as one factor in the sentencing exercise, the Customs approach has been a proper one.
Average street price is again assessed by collating data from police investigations country-wide and producing therefrom a notional national average.
In recent times, the methods used have been refined in two respects. The figures obtained both as to street purity and street price from the 11 regional areas are weighted to take account of differing levels of availability and drug use and of population in different regions. Secondly, the quarterly reviews are brought promptly to the attention of officers valuing drugs for prosecution.
Despite best endeavours, however, Mrs Conners agreed that there are inherent difficulties about valuing drugs. First, as drugs are an illegal commodity, prices are not overtly established and anecdotal evidence obtained from witnesses by the police may not be frank. Indeed, dealers may claim to sell drugs at very low prices to reduce the Court's assessment of "benefit" liable to confiscation.
Secondly, price ranges vary from place to place, from time to time and are dependent upon purity. As already mentioned, although adulteration is very likely to take place, when dealing with a seizure at a port it cannot be proved conclusively that adulteration would have taken place. Prices may vary with quantities and since the drugs are addictive, users may be willing to pay large sums particularly if the drug is in short supply at any particular time or place. Finally, a port seizure may leave the authorities in doubt as to whether the drug is for domestic consumption or for onward transmission to another country.
Notwithstanding these problems, we believe that the provision to the Courts of street value estimates, for use only as a rough guide, has been a reasonable and fair approach. In Patel 9 Cr App R(S) 319, Watkins LJ at p.321, after listing some of the difficulties mentioned above, said:
"These are factors which obviously tend to cause the use of the street value of heroin as a yardstick to translate quantities of the drug into financial terms as an aid to sentencing to be regarded with caution. So long as it is relied upon as a rough yardstick, we see no reason why judges should not measure the length of sentence to some degree by it."
Nevertheless, we are satisfied that the better way to measure the relative significance of any seizure of Class A drugs is by weight rather than by street value. All the parties before us and their expert witnesses were of that opinion. We have already summarised the reasons why street value is difficult to assess with any precision in a given case, even though the quarterly average figures afford a reasonable rough guide. The effect of this imprecision is that prosecution figures for average purity or average price may be challenged and where this occurs, the judicial response may vary. Some judges may follow the prosecution figure, some may take a mean figure between those of the prosecution and defence experts and some may assume, in the defendant's favour, that his expert is right.
However, there is another and very important reason for considering weight rather than street value. If cocaine or heroin is readily available, the price to the...
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