R v Welsh (Snr) and 17 Others
| Jurisdiction | England & Wales |
| Judge | Lady Justice Rafferty |
| Judgment Date | 15 September 2015 |
| Neutral Citation | [2015] EWCA Crim 1516 |
| Docket Number | Case No: 2015 02757/03032/02832/02381/02761/02760/02759/02758/02639/02629/03061/03072/03071/03070/03068/03065/03064/04742 C4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 15 September 2015 |
[2015] EWCA Crim 1516
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LIVERPOOL CROWN COURT
His Honour Judge Aubrey QC
20128062/8073/8092/8095/8098
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Rafferty
Mr Justice Edis
and
His Honour Judge Rook QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
Case No: 2015 02757/03032/02832/02381/02761/02760/02759/02758/02639/02629/03061/03072/03071/03070/03068/03065/03064/04742 C4
Sarah Whitehouse QC for the Crown
John McGuinness QC for the Attorney General
Anthony Barraclough for the Respondents
Hearing date: 15 th July 2015
These 17 applications for extensions of time for making applications for leave to appeal against conviction were referred to the Full Court by the Registrar of Criminal Appeals. 1 application for an extension of time to renew an application for leave to appeal against conviction after refusal by the Single Judge by Gordon Smith is different from the others in another important respect, as will appear.
The convictions arose from two investigations into the supply of class A drugs. Both sets of proceedings were dealt with by His Honour Judge Aubrey, Q.C. in the Crown Court at Liverpool. Operation Blenheim involved the applicants CW (senior), John Bowles, Michael Cook, Christopher Amos, Kenneth Fletcher, Steven Wood, CW (junior), Mark Shields and James Edmonds. Operation Knot involved the applicants John Cooke, James Swarez, David Jolly, Roseann McCreadie, James Beck, David Law, Edward McCreadie, John Wildman and Gordon Smith.
Both concerned large scale supply of class A drugs by Liverpool based organised crime groups to their counterparts in Scotland, contrary to ss1, 1A and 3 of the Criminal Law Act 1977. In all, the investigations resulted in the prosecution of 42 people. These applicants were all convicted of, or pleaded guilty to, conspiracy to supply Class A drugs and received substantial terms of imprisonment tailored according to their level of involvement and other matters. It is not necessary to set out the details of those sentences or the facts on which the convictions were based. The convictions were all safe and the sentences just. The significance of the Scottish element of the two conspiracies is that it meant that the Crown required the consent of the Attorney General to institute the proceedings in accordance with ss1A and 4 of the Criminal Law Act 1977. That requirement in cases where the cross-border element involved Scotland was introduced by the Coroners and Justice Act 2009 with effect from 1 st February 2010. Prior to that date the consent of the Attorney was only required where the case involved countries or territories outside the United Kingdom.
The issue on the first 17 of these applications relates only to the consequences of failure to obtain that consent until after the proceedings had been sent to the Crown Court and a Preliminary Hearing held. In the case of Smith, consent has never been obtained, the important difference between his case and the others. It is therefore necessary to set out the procedural history of the two sets of proceedings.
Operation Blenheim
The Indictment period was 1 st September 2011 to 18 th October 2012. 6 of the applicants were charged with conspiracy at various times on 18 th and 19 th October 2012. They appeared before the Magistrates' Court on 20 th October 2012 when their cases were sent to the Crown Court pursuant to s51 of the Crime and Disorder Act 1998. Fletcher was charged on 24 th October and sent on 26 th October, Bowles on 30 th October and 6 th November, and Cook on 31 st October and 1 st November. A Preliminary Hearing was held on 2 nd November 2012 in all cases but Bowles and Cook whose Preliminary Hearings were on 15 th November 2012. No Indictment had been preferred by the time of the Preliminary Hearings and no arraignment took place. A timetable was set in the usual way.
On 24 th January 2013 the Attorney General gave his consent to the prosecution of all Blenheim applicants. We have not been told of any compelling reason why that could not have been done sooner. It is apparent that the issue was in the minds of the prosecution lawyers, because the preferring of the Indictment was delayed until consent had been given.
On 28 th January 2013 at a Plea and Case Management Hearing ("PCMH") the applicants (except for Shields whose PCMH took place on the following day) were arraigned on an Indictment preferred after consent had been obtained. Only Bowles and Cook pleaded Not Guilty. The other applicants all entered guilty pleas to conspiracy to supply Class A controlled drugs. Bowles and Cook were convicted after a trial on 22 nd April 2013. Sentencing followed on various dates.
Time for appealing against those convictions expired on 20 th May 2013 in the cases of Bowles and Cook and on 25 th February 2013 in all other cases. That time limit is provided by s18 of the Criminal Appeal Act 1968 which also gives this court power to extend it. No Notices of appeal against conviction were issued until June 2015. 7 appeals against sentence were dismissed on 21 st May 2014, [2014] EWCA Crim 1027. Two applications for leave to appeal against sentence were refused by the Single Judge on 19 th July 2013 and not renewed.
Operation Knot
The Indictment period was between May and November 2011. Cooke, Swarez and Wildman were charged on 3 rd December 2011. The sending under s51 took place at the first appearance before the Magistrates' Court on 5 th December 2011. Jolly, both McCreadies and Law were charged on 8 th December 2011 and sent on the same day. Beck was charged and sent on 7 th December 2011. The Preliminary Hearing for these applicants took place at the Crown Court on 23 rd December 2011.
Smith's case was handled separately in the early stages. He was charged on 1 st December 2011 but not sent until the 12 th January 2012 when he made his first appearance at the Magistrates' Court. There was no Preliminary Hearing in his case but he appeared in the Crown Court at the same PCMH as the other applicants.
On 7 th March 2012 the Attorney General gave consent to the proceedings (except in the case of Smith) and, again, an Indictment was preferred after that date. It is accepted by the CPS (and so disclosed to the defence) that the consent of the AG was not sought in the case of Smith. The PCMH of all applicants was on 12 th March 2012 and on arraignment only Roseann McCreadie, James Beck and Gordon Smith pleaded Not Guilty. They were convicted on 9 th July 2012, 11 th June 2012, and 6 th July 2012 respectively. Time for appealing against conviction therefore expired in April 2012 for most applicants and a few months later in the other three cases. Smith gave Notice of appeal against conviction and sentence in time. His application for leave to appeal against conviction was refused by the Single Judge and not renewed. His renewed application for leave to appeal against sentence was refused by the Full Court, [2013] EWCA Crim 2693. Beck, Roseann McCreadie and Law had applications for leave to appeal against sentence refused by the Single Judge and did not renew them. Cooke, Swarez, Jolly, Beck and Wildman had their appeals against sentence dismissed by the Full Court, [2014] EWCA Crim 53.
The way in which consent was addressed in the Crown Court
All applicants have all been legally represented throughout. Mr. Anthony Barraclough, who appeared before us representing them all, appeared in the Crown Court for Wood in the Operation Blenheim proceedings and for Cooke in the Operation Knot proceedings. CW (junior) has been prosecuted again subsequently, as will appear, and Mr. Barraclough was instructed. In all, 14 other advocates appeared for the applicants in the Crown Court proceedings and several different firms of solicitors were involved. A very substantial amount of specialist legal expertise was made available to these applicants and it appears that no-one enquired about whether the Attorney General had given his consent and, if so, when.
The single exception to that general statement is Mr. Barraclough. He tells us that in the Operation Knot proceedings he asked the Crown several times whether it had the consent of the Attorney and was told consistently that "consent was obtained and all was done properly". He says that he was happy to accept this until the recent appeal in R v. CW and MM [2015] EWCA Crim 906 ("CW") which we address below and which was decided on 22 nd May 2015. In relation to the later case of Blenheim he says that he was unsettled about the consent issue and says
"I have on several occasions asked for confirmation from the Crown of when consent to institute proceedings was obtained. I was told in an email on 30 th January 2014 by counsel for the Crown Martin Reid (who also prosecuted CW in his subsequent case) that the CPS had obtained the consent of the AG in the following terms "I can confirm that we obtained the AG's consent to charge in respect of all defendants in Op Blenheim"."
We should record at this stage that in view of the published Guidance being applied by the CPS and the Attorney General which we mention below the responses which Mr. Barraclough received were not disingenuous, although it would have been better if he had been told when the consent was given. Consent was obtained within time if that Guidance were right. In truth it appears that until the issue of timing surfaced in the later case of CW (junior) and was determined by this court on 22 nd May 2015...
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