R v Menocal
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORR,LORD JUSTICE |
| Judgment Date | 04 July 1978 |
| Judgment citation (vLex) | [1978] EWCA Crim J0704-1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 04 July 1978 |
| Docket Number | No. 2569/B/77 |
[1978] EWCA Crim J0704-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Orr
Lord Justice Cumming-Bruce
and
Mr. Justice Wien
No. 2569/B/77
MR. K. KNIGHT appeared as Counsel for the Applicant.
MR. M. WILKINSON appeared as Counsel for the Crown.
I should mention that Mr. Justice Wien has of course read and he approves the Judgment I am about to deliver. He is unable to be here because he is absent on circuit.
On the 31st January, 1977, at the Middlesex Crown Court this Applicant, Mrs. Menocal, of previous good character, pleaded guilty to being knowingly concerned in a fraudulent evasion of the prohibition on the importation of cocaine and was sentenced to five years' imprisonment, and, on the 9th May, 1977, was ordered to forfeit sums of £171, 7053 U.S. dollars and £200 pesetas found upon her on her arrest. She now applies, after refusal by the Single Judge, for leave to appeal against that forfeiture order but does not seek leave to appeal against the sentence of imprisonment imposed upon her.
On the 1st April, 1977, two co-accused, Miss Gladys Henao and Miss Clara Lopez, were on the same indictment convicted of conspiracy to contravene section 304 of the Customs and Excise Act, 1952, in relation to the same cocaine and were each sentenced to four years' imprisonment and recommended to be deported after serving such sentence. Miss Henao, after refusal by the Single Judge, renewed her application for leave to appeal against sentence, which came before this Court as a non-counsel application and was refused on the 26th May last. Miss Lopez also applied for leave to appeal against her sentence but did not renew the application after refusal by the Single Judge.
The facts of the offences may be summarised as follows. At about midday on the 14th August, 1976, a customs officer on duty in the green channel at Terminal 3 at Heathrow Airport intercepted Miss Henao on her arrival from Bogota and her suitcase was found to have a false compartment. She was allowed to leave and as she was walking through the public concourse she was joined by Mrs. Menocal, and then by Miss Lopez who had travelled with her. They were detained by customs officers and the suitcase was found to contain 2646 grammes of cocaine. When interviewed Miss Henao denied knowing about the cocaine and alleged that the suitcase had been given to her by a man named Hans in Bogota, where she lived, who had also given her 1000 dollars for her ticket and a like sum for expenses and had told her that someone would meet her at Heathrow and take her to a hotel. Mrs. Menocal had come to England on the same day from her home in Ibiza and when her handbag was examined there were found in it the sums in sterling, dollars and pesetas already referred to. She eventually admitted having been involved with a drug ring since January, 1975, one of the organisers of which was a man named Gomez, and that she had been the contact between Alfredo Lopez (the brother of Clara Lopez) and a man named Keith in the U.S.A. and had visited Bogota and, in February and June, 1976, had carried drugs from there to Madrid. With regard to the offence charged she admitted having provided the suitcase and that her role had been to meet the co-defendants at Heathrow, book them into a hotel in London, and await instructions which were to be given to her by telephone, and in respect of such services she was to receive 5,000 dollars. The prosecution case was that the cocaine was to have been taken from England to Europe and possibly thence to the U.S.A.
In ordering, as he did after hearing legal arguments, the forfeiture of the money found upon Mrs. Menocal, the Judge said that she was in England on the business of assisting in the importation and disposal of the drugs which arrived on the 14th August, 1976, and she must have been given substantial sums in order to pay for whatever outgoings arose. In the absence of any evidence from her, for she gave none, that part of the money was hers, he considered it proper to draw the inference that the whole of the money found in her handbag had been provided by her employers to assist them in dealing with the importation, and he proceeded to make the forfeiture order under section 27 of the Misuse of Drugs Act, 1971, or alternatively under section 43 of the Powers of Criminal Courts Act, 1973.
Section 27 of the Misuse of Drugs Act, 1971 , provides as follows. Subsection (1) "Subject to subsection (2) below, the court by or before which a person is convicted of an offence under this Act may order anything shown to the satisfaction of the court to relate to the offence, "to be forefeited and either destroyed or dealt with in such other manner as the court may order. Subsection (2) The court shall not order anything to be forefeited under this section, where a person claiming to be the owner of or otherwise interested in it applies to be heard by the court, unless an opportunity has been given to him to show cause why the order should not be made."
Section 43 of the Powers of Criminal Courts Act, 1973 , provides: "Subsection (1) Where a person is convicted of an offence punishable on indictment with imprisonment for a term of two years or more and the court by or before which he is convicted is satisfied that any property which was in his possession or under his control at the time of his apprehension - (a) has been used for the purpose of committing, or facilitating the commission of, any offence; or (b) was intended by him to be used for that purpose, the court may make an order under this section in respect of that property. Subsection (2) Facilitating the commission of an offence shall be taken for the purposes of this section and section 44 of this Act to include the taking of any steps after it has been committed for the purpose of disposing of any property to which it relates or of avoiding apprehension or detection, and references in this or that section to an offence punishable with imprisonment shall be construed without regard to any prohibition or restriction imposed by or under any enactment on the imprisonment of young offenders. Subsection (3) An order under this section shall operate to deprive the offender of his rights, if any, in the property to which it relates and the property shall (if not already in their possession) be taken into the possession of the police."
Against that order the Applicant now seeks leave to appeal and it will be convenient to deal first with the last ground of appeal, which is the only ground of appeal involving questions of fact, that there was no, or no sufficient, evidence on which the Judge could conclude as he did that the whole of the sum forfeited related to the offence for the purposes of...
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...Courts Act 1971 and section 47 of the Supreme Court Act 1981, a sentence may only be varied or rescinded by the Crown Court within 28 days. Menocal [1980] AC 598 shows that there is no statutory power to vary or rescind a sentence after 28 days, and there was no such common law power, save ......
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