R v Ferrell
| Jurisdiction | UK Non-devolved |
| Judge | LORD CLARKE |
| Judgment Date | 29 July 2010 |
| Neutral Citation | [2010] UKPC 20 |
| Docket Number | Appeal No 0094 of 2009 |
| Date | 29 July 2010 |
| Court | Privy Council |
[2010] UKPC 20
Privy Council
Lord Rodger
Lady Hale
Lord Clarke
Sir Christopher Rose
Sir Robin Auld
Appellant
Charles Salter
Ishbel Armstrong
(Instructed by Blake Lapthorn)
Respondent
Robert Rhoda QC
Kevin Colombo
(Instructed by Barlow Lyde & Gilbert LLP)
Introduction
This is an appeal from an order of the Court of Appeal in Gibraltar (Sir Murray Stuart Smith P, Sir Philip Otton and Sir Paul Kennedy JJA) made on 16 September 2009 dismissing the appellant's appeal against conviction on 26 May 2009 on counts 1 to 4 and 7 to 15 of an indictment, after a trial before Pitto J and a jury. The judgment of the Court of Appeal was given by Sir Paul Kennedy. Leave to appeal to the Privy Council was given by Dudley J, acting Chief Justice, on 13 October 2009.
The appellant was convicted of two counts of possession of a controlled drug (counts 1 and 3), two counts of possession of a controlled drug with intent to supply (counts 2 and 4), and nine counts of concealing or transferring the proceeds of drug trafficking (counts 7 to 15). The controlled drug was cocaine. The appellant was sentenced to five years' imprisonment on each of counts 1 to 4, which were to be served concurrently but consecutively to 18 months' imprisonment on each of counts 7 to 15 to be served concurrently. He was thus sentenced to a total of six years' and six months' imprisonment.
The facts
The facts were correctly summarised by the Court of Appeal and were shortly as follows. Between 30 May and 6 June 2008 police officers, in the later stages with the aid of a camera, observed the appellant on a number of occasions when he visited a relatively remote area of the Rock of Gibraltar. On Friday 6 June, the police decided to search him when he arrived by car at Maida Vale, which is on the approaches to the Upper Rock Nature Reserve. Nothing was found on him but dogs led the police to search the area of the driver's seat of his car where they found drugs and £170 in cash. Nearby in an earth wall, where the appellant had been seen to go on previous occasions, there was found a cache of drugs in half gram deals which could be scientifically matched with the drugs in the car. Counts 1 and 2 related to the 4.68 grams of cocaine found under the driver's seat and counts 3 and 4 to 9.71 grams of cocaine found in the earth wall. Counts 5 and 6, of which the appellant was acquitted, related to a small quantity of ecstasy also allegedly found in the earth wall.
Enquiries then revealed that since his arrival in Gibraltar in 2000 the appellant had only worked on eighteen days, and had not been in registered employment since November 2003, but he had a bank account with the NatWest Bank into which he had made frequent payments. Between December 2005 and 27 May 2008 he deposited a total of £69,835, always in cash in amounts of under £1,000. The prosecution case was that that was to avoid the need for the bank to report an unusually large deposit. The appellant had also had a total of seven vehicles registered in his name. Counts 7 - 15 were specimen counts relating to deposits of cash on various dates between 15 August 2006 and 27 May 2008. In evidence at the trial the appellant claimed that he earned the cash by working as a doorman and by smuggling tobacco into Spain.
It is convenient to refer to counts 1 to 4 as the 'drugs counts' and to counts 7 to 15 as the 'money laundering counts'. Counts 1 and 3 alleged possession of cocaine contrary to section 7(1) and (2) of the Drugs (Misuse) Act 1973 ('the 1973 Act') and counts 2 and 4 alleged possession of cocaine with intent to supply contrary to section 6(1) and 7(3) of the 1973 Act. Counts 7 to 15 alleged concealing or transferring proceeds of drug trafficking contrary to section 54(1)(a) of the Drug Trafficking Offences Act 1995.
The issues
There were a number of issues before the Court of Appeal, which rejected all the grounds of appeal advanced before it. In this appeal three issues are raised on behalf of the appellant. They are (1) whether counts 7 to 15 were properly joined with counts 1 to 4; (2) if not, what are the legal consequences of the appellant having been tried and convicted on the two sets of counts; and (3) if the two sets of counts were properly joined, whether the convictions on counts 7 to 15 are safe.
Joinder
Mr Salter submitted on behalf of the appellant that the money laundering counts should not have been joined and thus tried together with the drugs' counts. It is common ground that the principles relevant to joinder in Gibraltar are the same as in England and Wales: see sections 4 and 138-142 of the Criminal Procedure Act 1961. Rule 9 of the Indictment Rules 1961 provides:
"Charges for any offences may be joined in the same indictment if those charges are founded on the same facts or form or are part of a series of offences of the same or a similar character."
At first instance Pitto J held that the two sets of charges arose out of the same facts. However, it was accepted by the Attorney General, both in the Court of Appeal and before the...
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