Queen v William McCluskey
| Jurisdiction | Northern Ireland |
| Judge | Kerr LCJ |
| Judgment Date | 11 May 2005 |
| Neutral Citation | [2005] NICA 22 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 11 May 2005 |
| Year | 2005 |
1
Neutral Citation no. [2005] NICA 22
Ref:
KERC5278
Judgment: approved by the Court for handing down
Delivered:
11.05.05
(subject to editorial corrections)
IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND
______
THE QUEEN
v
WILLIAM McCLUSKEY
______
Before Kerr LCJ, Campbell LJ and Sheil LJ
______
KERR LCJ
Introduction
[1] On 21 February 2003, after a trial before Nicholson LJ and a jury at Belfast
Crown Court, the applicant, William McCluskey, was convicted on charges of
possession of class A and class B drugs with intent to supply contrary to
section 5 (3) of the Misuse of Drugs Act 1971. He was sentenced to 12 years
imprisonment on each of the charges, these sentences to run concurrently. A
co-accused, Simon Wood, who had pleaded guilty at the start of the trial to
similar charges, was sentenced to a custody probation order, comprising six
years imprisonment and two years probation. Another co-defendant, David
Jackson, was charged with the same offences but because of his serious illness
these charges were not proceeded with.
[2] Leave to appeal against conviction was refused by the single judge and the
applicant renews that application before this court. He also applies for leave
to appeal against sentence.
Background
[3] At approximately 10.30 pm on 28 February 2001 a white Mercedes van,
registered number W472 UEC, was driven off a ferry in Larne. It had three
occupants. These were the applicant McCluskey, Simon Wood and David
Jackson. The ferry had sailed from Fleetwood to Larne. The booking for the
crossing was made at 7.11 pm on 27 February for the 2.45 pm sailing the
2
following day. The booking form specified the Mercedes van with two adult
passengers. The lead name on the booking form was D Jackson and the other
passenger was named as Wood. On 28 February a third adult was added to
the booking. His name was given as Johnston. It transpired that Johnston
was a false name used by McCluskey. The name was added some short time
before the sailing, not more than an hour before the ferry left. Evidence was
given at the trial that it was not possible for a foot passenger to travel on this
particular ferry. All passengers had to be associated with a vehicle.
[4] As it was driven off the ferry the van was observed by police officers from
the headquarters serious crime squad of the Royal Ulster Constabulary. They
followed as it travelled towards Belfast. Other police officers then took up
observations of the van and it was seen to travel to the junction of Lowwood
Park and Lowwood Gardens, off the Shore Road. The van stopped and
McCluskey alighted and walked to a house at 35 Lowwood Park. There he
had a short conversation with a female who, it later transpired, was his sister.
McCluskey then returned to the van and it drove off. Observations by other
police officers then began and they saw the van driven to the Lansdowne
Court hotel.
[5] At the hotel the three men took rooms for the night. McCluskey was
registered as Johnston, although he did not sign the registration card. One of
the other two men completed all three cards. A police officer observed the
men having a drink at the bar and then retiring to their rooms shortly after
midnight. At 7.35 am the following morning they left the hotel and got into
the van. One of them was seen to be carrying a black holdall. The van was
driven once more to Lowwood Park and there the applicant was arrested in
his sister’s home. The van was detained and Wood and Jackson were also
arrested.
[6] At the time that these events were taking place McCluskey was unlawfully
at large. He had been serving a sentence of imprisonment of seven years and
had been granted compassionate home leave. He had failed to return to the
prison at the expiry of the period allowed. When he was confronted by a
police officer at Lowwood Park and asked to identify himself, McCluskey said
that his name was John Graham; he also gave a false date of birth and
address. The police officer suspected that he was in fact McCluskey and at
8.15 am he arrested the applicant on the charge of being unlawfully at large.
[7] The van was searched cursorily at the scene and nothing of significance
was found. At about 11 am on the same date a more thorough search was
conducted. Two large cylinders that were in the rear of the vehicle were
opened using equipment supplied by the firm from which the cylinders had
been hired. Concealed in the cylinders were packages containing the drugs.
All told, 59 kilograms of cannabis resin and 23,660 Ecstasy tablets were found.
The estimated street value of the cannabis was £590,000 and of the Ecstasy
£295,750.
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Queen v M
...relation to this that Mr Kennedy mounted part of his argument. It has to be remembered, as Kerr LCJ pointed out in R v William McCluskey [2005] NICA 22 at paragraph [20], that: “… the mere fact that an item of evidence is prejudicial to a defendant on matters extraneous to the issues that a......