R v Slack
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 27 June 1989 |
| Neutral Citation | [1989] EWCA Crim J0627-1,[1989] EWCA Crim J0627-5,[1989] EWCA Crim J0609-8 |
| Judgment citation (vLex) | [1989] EWCA Crim J0627-2 |
| Docket Number | No. 710/D3/88,No. 3083/F1/88 |
| Court | Court of Appeal (Criminal Division) |
| Date | 27 June 1989 |
[1989] EWCA Crim J0609-8
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Lane)
Mr. Justice Kennedy
and
Mr. Justice Hutchison
No. 3083/F1/88
MR. D. SWINSTEAD appeared on behalf of the Appellant.
MR. M. VERE-HODGE appeared on behalf of the Crown.
On 26th January last year in the Crown Court at Portsmouth before His Honour Judge Brodrick and a jury, this appellant, Ian Smith, was convicted of conspiracy to supply cannabis. Sentence was adjourned after the hearing in order to consider the making of a confiscation order under the Drug Trafficking Offences Act 1986. That hearing took three days to complete in May last year. In the upshot the appellant was sentenced to five years' imprisonment and a confiscation order in the sum of �14,000 under the 1986 Act was made.
He appealed against that sentence by leave of the single Judge. The matter was heard originally by a two-Judge Court, of which I was one of the members, on 17th March this year. We dismissed the appeal so far as the imprisonment of five years was concerned, and we adjourned the matter to a Court of three Judge in order to try the more complicated matter of the confiscation order under the 1986 Act. We have now had the matter argued before us most helpfully, if we may say so, by both counsel who have appeared before us today.
It is perhaps necessary for me to repeat some of the judgment which was delivered in the earlier hearing before the two-Judge Court in order to set the scene of the facts so far as this case is concerned.
The prosecution case was this. Over a period of time prior to the 1st May 1987 this appellant used to travel from Portsmouth to an address in Feltham on a number of occasions where one of his co-accused called Murrell had his home. He sometimes travelled with a man called Fisher, who was also a co-accused, and sometimes with another co-accused called Palmer. The object of the journeys was to obtain cannabis for resale in Hampshire.
The police were alerted to what was going on and they kept observation upon the appellant and the various co-accused. It was not a continuous operation of surveillance, and some of the journeys made by the appellant were not observed, but the dates on which the material journeys were made were these: an unknown occasion before the 6th April; the 6th April itself, when the appellant was observed to visit Murrell's house; the 13th April, when the appellant drove Palmer to London, where they met Fisher; the 17th April, which was an occasion admitted by the appellant himself; the 28th April when the appellant visited Murrell's house alone; and finally the 1st May, when the appellant collected Palmer and drove to Murrell's address. When they came out Palmer was carrying a white package. They drove to Woking Railway Station. They were arrested there.
In a holdall at Palmer's feet was found an envelope containing 2 kilogrammes of cannabis resin. In the appellant's pocket was an envelope containing �380. Murrell was arrested shortly afterwards. At his house was found a kilo of cannabis resin together with the paraphernalia of the drug dealer, and 4 brown envelopes containing a total of almost �4,500, the notes being packed in a manner precisely the same as the notes which were found upon the appellant himself. At the appellant's house when it was searched were found a set of weights and other incriminating articles.
The first point taken by the appellant concerns both aspects of the appeal, the sentence of five years which we upheld on the previous occasion and the confiscation order. It is this.
The learned Judge in delivering his judgment said this: "So, out of six trips, it seems to me that I can properly assume that drugs changed hands on four of them. I think I am entitled to assume that it was in the region of two kilos per trip. So, a total of eight kilos came into his possession which was available for resale. I propose to make a further assumption, which is perhaps more favourable to Smith than it ought to be, and I propose to assume that he only disposed of one kilo from each trip."
It is suggested by counsel for the appellant, Mr. Swinstead, that those calculations were based upon a misapprehension of the evidence, a point which he did not take on the first hearing of this appeal, but we allowed him to take it on this occsion, because it does affect both legs, the imprisonment leg (if I may call it that) and the confiscation leg. It is this, that the occasion upon which the cannabis resin was actually found in the possession of the defendant was one in which the resin was in a plastic bag being carried. We are now provided with photographs, which we were not on the previous occasion, which show the way in which the cannabis resin was so to speak packed. Each one is in the exact shape of a cake of soap. The cannabis which was being carried on the final occasion was in that form in a plastic bag.
It seems that on the other occasions when the police carried out the observation, there was nothing being carried by the appellants. The officers were questioned and gave answers to the effect that there was nothing apparently bulky being carried upon the person of the appellant so far as they could tell.
The point is therefore taken that it was quite wrong for the Judge to do as he did, namely to assume that two kilos were being carried on each occasion, when to carry two kilos would have involved carrying a large number of these cakes of soap.
What the learned Judge did was not to act strictly according to observation. He was making an assumption � the words he used were, "I think I am entitled to assume that it was in the region of two kilos per trip". In the judgment of this Court he was entitled to make that assumption for a number of different reasons. First of all it might very well be that there were upon the person of the appellant these cakes of cannabis which could have been carried in various pockets without any necessary bulging or observable bulging of the clothes. Secondly, there were all sorts of other ways in which these cakes of cannabis could have been dealt with without the necessity of the police being in a position when carrying out their observation of being able to observe anything peculiar which would indicate that cannabis of this quantity was upon the person of the appellant.
In our judgment the Judge was perfectly entitled to make that assumption as he did. As also indicated, he made deductions from those assumed figures in fairness to the appellant. Those deductions likewise, in the judgment of this Court, were properly made.
So far as the first point is concerned, that fails. That means that the sentence of five years' imprisonment was clearly based on the guideline judgment of Aramah (1982) 4 Cr.App.R.(S) 407, upon the basis of a correct assumption of the amount of cannabis which this man had in fact been dealing with.
The next point is a point taken upon the meaning of the Drug Trafficking Offences Act 1986. The way in which this ground of appeal is put forward is this. The learned Judge wrongly applied the provisions of section 2 of the Act in basing his calculation on the assumption that �3,500 had been received from each successful sale, whereas that �3,500 consisted partly of the same sum of money which was reinvested in each transaction. The calculation, goes on the submission, should have been based on the profit made from each transaction.
Section 2(1) of the 1986 Act reads as follows:
"For the purposes of this Act � (a) any payments or other rewards received by a person at any time (whether before or after the commencement of section 1 of this Act) in connection with drug trafficking carried on by him or another are his proceeds of drug trafficking, and (b) the value of his proceeds of drug trafficking is the aggregate of the values of the payments or other rewards."
What the Judge did, as already indicated, was to find as a fact that there were four occasions upon which payments were received by the appellant in connection with drug trafficking carried on by him. On each he found that there were payments of at least �2,500 and these were accordingly his "proceeds" of drug trafficking. He then aggregated the values of those payments, as he conceived he was enjoined to do by section 2(1)(b) which I have just read: 4 ף2,500 = �10,000, and he declared that to be the value of the proceeds.
That is wrong, submits Mr. Swinstead on behalf of the appellant, because the majority of each sum received as payment would be invested in purchasing the next consignment for sale on, and so on. Therefore, goes the argument, so far as a charge of this nature is concerned, namely a charge of conspiracy when a number of transactions are in question, the Judge should only have taken into account the profit element of each successful trip.
Whether that submission is correct depends simply upon the wording of section 2. But before proceeding to consider that argument, it is worth noting, as Mr. Vere-Hodge rightly points out to the Court on behalf of the Crown, that there was absolutely no evidence that money had been "rolled over" in this way, if one can use that expression, because from first to last the appellant had denied that he was dealing in cannabis in the way the prosecution contended that he was. There was absolutely no evidence that he had rolled over any money in the way alleged.
Leaving aside that factual difficulty in the way of the appellant, we turn to consider the question from the legal aspect, namely the meaning of section 2(1).
The words "any payments" are on...
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