Draper & Ors, R v

LORD JUSTICE HUGHES: We have before us a number of applications which arise from convictions on 14th June 2007 in the Crown Court at Ipswich on a count of conspiracy to smuggle cigarettes. In due course we shall need to consider applications for leave to appeal against sentence by Draper and Eastabrook and an appeal against sentence for which Frost has the leave of this court.

Before we come to that, the position as to applications in relation to conviction by Draper and Eastabrook is a little complicated.

Draper's original ground of appeal challenged the admission in evidence of events in 2000. Shortly before his renewed application for leave was to be heard on 7th November, and after changing counsel, he had a consultation with Mr Kovalevsky QC, who now appears for him and he decided to abandon that application relating to his conviction. Some form of communication was had with the Criminal Appeal Office on or about 29th October, thus about a week before what was expected to be the hearing before the full court. Very shortly after that, but still before 7th November, the Crown disclosed to all parties some additional material, some of it, but perhaps not all of it, post-trial material. It seems that the material had surfaced, to use a neutral expression, during the retrial of a co-accused called Marshall about whom the jury in the trial which we are concerned with had been unable to agree. When Mr Kovalevsky saw the new material he concluded that he would not have given the advice to abandon that he evidently had if he had had sight of the new file.

He now seeks to advance not the original ground but two related new grounds. They are, first, that the new material provides reason to think that Draper's conviction is unsafe and, coupled with that, secondly, a challenge to a ruling made by the judge in the course of the trial that exploratory questions could not be asked of surveillance officers about inter alia any observations beyond those already disclosed.

We think we should make it abundantly clear first that if Draper did give notice of abandonment there is simply no jurisdiction in this court to allow him to retract it. That was made clear by this court in R v Medway (1976) 62 Cr.App.R 85. It was a strong court convened expressly for the occasion, five judges presided over by the Lord Chief Justice, Lord Lane. The only jurisdiction which exists in relation to an application which has been abandoned arises if the notice of abandonment is truly a nullity - that is to say is one where the mind of the applicant or appellant did not go with his act. The reason for that is in effect that this court is a creature of statute; a notice of abandonment puts an end to either an application for leave or an appeal. A change of mind by the appellant or counsel provides no basis for avoiding that consequence. There is no inherent jurisdiction in this court to allow the revival of an abandoned appeal or application.

However, in the present case it appeared, when we embarked on the hearing, that there was some doubt as to whether notice of appeal in proper form or any form had actually been given. Since the issues which were raised by Draper were in substance very much the same as those raised by Eastabrook, who does not face the same potential difficulty of abandonment, we took the pragmatic view that we should hear argument about those issues and decide whether or not they were capable of disclosing arguable grounds. If they did it might be necessary to go on to see whether Draper had truly abandoned or not. If on the other hand they do not there is no occasion to spend time in that investigation.

The smuggling in question in this case was accomplished through Ipswich Docks. Three importations of containers from Latvia were made between 17th August and 27th October 2005. All three containers were stated in their manifests and other relevant documents to contain acrylic tow. The first container did. It was known that a new importer's container was likely to be checked, and this one was. In other words the first container was a dry run. The next two containers which arrived respectively on 8th September and 27th October 2005 contained not tow but cigarettes by the many million -- as a matter of fact they were also counterfeit cigarettes but what matters for the purposes of the present charge was that duty was unpaid. The duty plus the VAT evaded was something over £2 million. Each of the containers was taken from the docks to a place called Bateman's Farm for unloading.

It is important to record that there was no issue at the trial but that there was a conspiracy to smuggle these cigarettes. There scarcely could be; apart from the bare fact of the undeclared importation of millions of cigarettes a number of people pleaded guilty. They included Frost, whose application for sentence is before us, and they also included a man on the inside at the docks named Wilson. As things now stand it is also clear that a man called Turner was involved as one of the entrepreneurs in the importation. He was convicted and he has now abandoned his applications for leave to challenge either conviction or sentence. Although his sentence was the maximum (seven years) his abandonment of any application in relation to that is realistic. That is because he had a previous conviction for smuggling alcohol for which he had been sentenced to five-and-a-half years in 2001 and he committed the present offence when he was still on licence following provisional release from that sentence. If he had received any shorter a sentence he was at risk of having to serve the outstanding period of his licence also.

We will deal first with the 2000 material which although not now in issue in Draper's case remains in issue in the case of Eastabrook. The previous conviction of Turner, to which we have just referred, was the subject of a bad character application in the trial by the Crown. In fact the Crown tried to admit something else which the judge refused, but the judge admitted the previous conviction of Turner for smuggling alcohol, unsurprisingly when the issue in Turner's case was whether he was proved to be a part of the present conspiracy or whether his actions and various associations with others had some different explanation. The result of that was that counsel needed, as they correctly should, to agree the facts of the previous conviction for the purposes of the trial and to avoid the kind of satellite investigation which should be restrained. When they were attempting to agree that and looked at the evidence from 2000, it transpired that one of the meetings which was in evidence in that case had taken place on 29th February 2000 and had involved not only Turner but also Draper and indeed for that matter Marshall. Not only that, but in the course of that meeting amidst other arguably incriminating conversation about loads, Germany and Romania, Draper had, it was alleged, been heard to say: "I could start to divert fags."

The result of that discovery was that the evidence became not only bad character evidence of propensity against Turner but also similar evidence against Draper, though not (it needs to be remembered) against Eastabrook. What seems to have happened is that either for operational reasons or more likely through a lack of co-ordination of different arms of the 2000 investigation, the lead to Draper had never been followed up at the time. Turner and somebody else were prosecuted for the 2000 conspiracy; Draper never was. At the present trial objection was taken on behalf of Draper to the admission of this material on the ground that he was handicapped in dealing with it. In fact his presence was admitted in the face of a clear photograph. He was able to deny the incriminating remark and he was able to give his own contrary explanation of the reasons for the meeting. In those circumstances, as we have already said, Draper does not pursue any ground here relating to the admission of that evidence. Eastabrook, however, does. His complaint is largely the one which was made on behalf of Draper and, it may well be, by Eastabrook too at the time of the trial. But this evidence was no evidence against Eastabrook. It was no doubt powerful evidence that Turner had a propensity to smuggle and thus reinforcement for the Crown's case that he was guilty of the present conspiracy. The meeting would also appear to be significant evidence that Draper had declared a propensity to smuggle cigarettes and thus supported the Crown's case against him. But Eastabrook's case in this trial was not that there was no conspiracy to smuggle cigarettes; it was simply that he was not part of it. There is no arguable basis upon which proving that Turner or Draper or both were guilty meant that Eastabrook had to be guilty as well. Whether he was or not depended on whether there was some other explanation for what he had done. His ability to explain his association with the others and his actions was not diminished by the evidence that Turner and/or Draper were guilty. As we have said, it was always common ground that there was a conspiracy. No one could possibly suggest that there could be no meeting by anyone with someone who was a conspirator without that meeting necessarily involving the conspiracy. That would be a nonsense. There was in fact a significant amount of evidence that Eastabrook was party to this conspiracy. Among other things he was the link man to the essential man on the inside, Wilson.

There is a secondary associated complaint on behalf of Eastabrook that in the course of reviewing the 2000 evidence the judge said this:

It is perfectly clear that what the judge meant was that that was so far as Draper and Marshall were concerned the case against them. Here was Draper at least contemplating in 2000 what he was alleged to have been doing in 2005. The judge made it crystal clear to the jury that the evidence in question was only evidence against those people who were there at that meeting. That was sufficient to make it plain that it was not evidence in the case of Eastabrook, but sensibly he also said that specifically: "of course it does not apply to any other defendant at all, it cannot possibly. It only applies to these three." The supplemental submission is that the jury might have relied on this evidence against Eastabrook. It clearly did not persuade them against Marshall that the association was not innocent and there is simply no basis for saying that it must have been used against Eastabrook. The judge had told the jury they could not use it, this court proceeds on the basis that jurors honour the clear directions of law which they are given and there is every reason to think that this jury did.

For those reasons, there is no arguable complaint which can be made on behalf of Eastabrook about the admission of the 2000 evidence.

We turn to the combined issues of excluded questions and the newly disclosed material. In the course of the trial the judge ruled certain questions could not be asked of the surveillance officers. One of the categories was as to "(3) any observation other than that disclosed to the defence." It is clear that the reason for that was connected with a danger, which apparently existed, that enquiries might infringe upon territory attracting a public interest in non-disclosure. It is plain, in a case of continuing surveillance, that it could in principle do so. The judge however made it clear in giving his ruling that he had, and this must have been exceptional, reviewed the unused material in order to satisfy himself that the Crown had applied the correct test of disclosure, that is to say that anything which either undermined the Crown's case or could assist the defendants had been disclosed or, failing that, submitted to the judge for consideration of competing interests of public interest immunity. There was no relevant material.

With that background the evidence against both Draper and Eastabrook did consist in large part of association with others who were said to be engaged in this conspiracy. That was not the whole of the evidence. In the case, for example, of Draper there was also evidence of his possession of a contact number for Bateman's Farm which was on the other side of London from where he lived, and there was evidence of telephone traffic. But certainly the evidence of association with other alleged conspirators was a substantial part of the case. Draper asserted at the trial that the relatively few meetings between himself and other alleged conspirators on which the Crown relied were explicable on one or both of two bases. First, he said he was working albeit unofficially for a company called Polymore Limited. That was a company in which Frost was the sole director and the principals appeared on the evidence to be Turner and Marshall. Secondly, said Draper, there were discussions between all of the various people present at these meetings about a proposal that all or some of them should go into the timber trade. That was Draper's case. Eastabrook for his part had no connection with Polymore at all. His case was that the proposed timber business was the explanation for his presence at any relevant meetings and indeed that it was largely his idea as a business proposal.

Mr Kovalevsky and Mr Mark, for Draper and Eastabrook, submit that the effect of the judge's ruling was unduly to restrict the evidence which Draper and Eastabrook could adduce. They say that they wished to show either that they had had other similar meetings with other people in the case or, in the case of Eastabrook, that defendants other than him had had such meetings with each other. In each case, they say, they would have wished to show that such meetings had taken place on various occasions which were not relied upon by the Crown as showing furtherance of the conspiracy in question. That, they say, would advance their case by showing the meetings were not necessarily sinister.

We make, for the purpose of dealing with that argument, the assumption (which if the Crown and the judge were right is a false assumption) that there did exist such material. Supposing that it did, there is still, as it seems to us, a twofold flaw in the argument advanced. First, neither defendant was in the least inhibited in giving evidence of any number of other meetings that he had had with other defendants or for that matter anybody else which were devoted to non-cigarette matters. Second, even if some officer were able to confirm that a meeting had taken place between A and B on such and such an occasion, which might or might not have been unrelated to cigarettes, that is simply neutral both for A and B and even more so for D, E or F upon the significance of the meetings which were in question in this case and in relation to which the rival assertions were made.

That analysis is most clearly demonstrated by consideration of the same argument as it is now founded upon the newly disclosed material. Both Draper and Eastabrook say that two parts of this material would have been of assistance to their case. First, there is a witness statement from a lady called Miss Finnigan who works for one of the mobile phone network providers called "3". Her witness statement, which was made post-trial in 2007, shows that in 2005 she discovered that Polymore were ostensibly selling quite enormous quantities of top-up mobile phone vouchers. So enormous was the apparent through-put via a single outlet that it looked to her like a fraud and she referred the issue to investigators and cancelled Polymore's contract.

The second witness statement is from a solicitor called Mr Smith from a well-known London commercial firm. His witness statement, again post-trial, is to the effect that on 31st October 2005 he was visited by Turner and a man who called himself Peter White for advice in connection with Polymore Limited. It is now common ground that the man calling himself White was Draper using a false name and indeed carrying a printed business card in the same name. What Mr Kovalevsky says is that Draper could have adduced this evidence to show that Polymore had reality and activity. It appears that there may be other witness statements in similar kind speaking of "White" taking some kind of action on behalf of Polymore and unconnected with cigarettes.

We have not investigated whether either of these categories of witness statement was or ought to have been available at the time of the trial in 2007. Making the assumption in favour of the applicants that they either were available or ought to have been, still any failure in disclosure of documents that there may have been does not arguably render the conviction of either Draper or Eastabrook unsafe. We think it is extremely doubtful that Draper would have wished to adduce in evidence that Polymore, in which he claimed an active part, was fraudulent. But if he had wished to say it he could do so and not having Miss Finnigan's statement did not prevent him. He could certainly have called Mr Smith to say precisely what is now in his statement. It cannot have been unknown to Draper, nor is there any possibility that he could have forgotten the meeting because he was arrested very shortly after it outside in the neighbourhood of Mr Smith's office. Moreover, it is perfectly plain that there was no issue at all at the trial whether Polymore had any non-cigarette activity. On the face of it it must have done because the evidence at the trial was that Turner and Marshall were each drawing £100,000 a year from it and Frost was paid £25,000. The question which mattered was whether those three and Draper, or any of them, were simultaneously conducting the smuggling operation which was charged. The smuggling operation was done via a separate company called OCL.

It is true that Draper was challenged at the trial on his evidence that he worked regularly at the offices of Polymore in either Essex or Suffolk. The reason for that was because it emerged in cross-examination that he appeared to have real difficulty in explaining by what route he went from Chertsey to the office of Polymore even though, according to him, he did it habitually. Secondly, he did not seem to know one of the employees in the office who, if he had been going regularly, he must have met routinely. But the question of whether he worked there, as he said he did, was not the same question as whether Polymore had any activity and on the face of it on the evidence at the trial, never mind since, it did. So far as Eastabrook is concerned proving that Polymore had some activity, whether criminal or otherwise, was simply irrelevant. He had no connection with it. His case was that whatever others might be conspiring to do he was not. The submission which Mr Mark attempts to get off the ground is simply incapable of flight.

For Eastabrook, Mr Mark advances some separate complaints about the summing-up. In substance his contention is that the judge deserted judicial neutrality, entered the arena and demolished Eastabrook's case. On inspection that is found to be grounded upon two or three comments made by the judge in the course of dealing with the evidence of Eastabrook. First at one point he made a simple error of speaking of Eastabrook when he meant to say Wilson - that is the kind of thing that happens all the time; he was corrected and he made the correction to the jury with the necessary clarity and certainty and no complaint about that survives. The first area in which complaint is made relates to a comment which Mr Mark had made in closing to the jury about the part played in the conspiracy by a man called Franks who provided a lorry to move the container. Mr Mark had reminded the jury that Eastabrook had many connections within the docks, including many lorry drivers, and had made the submission that if Eastabrook had been involved in this conspiracy and recruited the driver he would not have recruited somebody who appeared to have been a mere dupe and not to know what he was doing. In summarising that submission, the judge set it out fully and clearly for the jury and added the observation that that would depend on whether it had been Eastabrook who had been doing the recruiting of the driver. Mr Mark took exception to that - quite why we are not sure, but he did. He invited the judge to correct it. The judge reviewed the situation and reminded the jury once again at Mr Mark's request of the rival contentions, namely Mr Marks (which we have just summarised) and the position in the evidence which was that no one had ever asserted that it had been Eastabrook who was responsible for recruiting Mr Franks. The judge's comment was perfectly legitimate and there is nothing whatever in the complaint about it. The same applies to a comment made about the likelihood of a sum of money which was seen to change hands being a short-term loan or "sub" from Eastabrook, given the relative means of him and the other party. Once again the judge set out the rival arguments perfectly clearly. The judge is not forbidden to make proper comments. Of course if he descends into the arena and assumes the mantel of Crown counsel the conviction may be unsafe, but what the judge did in this case was nowhere near that.

In all those circumstances it is plain to us that there are no arguable grounds for contending that the convictions of either Draper or Eastabrook are unsafe and their applications for leave are refused. In the case of Draper, it is therefore not necessary to investigate whether there was ever a notice of abandonment or not.

That means that we can turn to sentence. The sentences imposed were as follows. Draper was sentenced to seven years. So was Turner. That is the statutory maximum. Eastabrook was sentenced to six years. Frost, who had pleaded guilty right at the beginning of the trial but not earlier, was sentenced to five-and-a-half years. The inside man in the docks, Wilson, who pleaded guilty was sentenced to two years and there was a sentence midway of three years-odd on another defendant which has no bearing on the present question.

Draper was 51 at the time of sentence. He was not without previous conviction and had been convicted of deception offences in the early 1980s and then of conspiracy to steal and obtaining property by deception in 1990 for which latter offence he had been sent to prison for two years. That conviction meant that he was not a man of good character and indeed had been to prison, but it was of course 15 years or thereabouts before the commission of the present offence with nothing in between.

The substantive submission of Mr Kovalevsky in relation to Draper's sentence is anxiety that the judge has relied upon the 2000 evidence and treated Draper as if he had been convicted of the smuggling of which Turner had been convicted in that year. We agree that the judge would not be entitled to treat the evidence from 2000 as equivalent to a conviction of Draper in 2000. It does not look to us as if that is what the judge did. What it appears that he did was to use the 2000 evidence as reinforcing his conclusion that Draper fell to be sentenced on the basis of professional smuggling with a loss to the Revenue of £2 million or thereabouts and thus attracting a sentence at or close to the maximum provided by law. We have no doubt at all that the judge who saw Draper give evidence and lived with this case for six weeks or thereabouts was entitled to assess the role which Draper had had in it. He was quite satisfied that Draper was an entrepreneur in the transaction and there was ample material to justify that. The effect, however, of passing the sentence that he did, alongside the identical sentence on Turner, is that these two men have been treated the same whereas there was in fact a material distinction between them. Turner had the previous conviction and sentence in 2000. The five-and-a-half years which he had been ordered to serve had clearly not had upon him the deterrent effect which the sentencer who passed it no doubt intended. He had committed the present offence when on licence. It does seem to us that particularly when the maximum sentence was being imposed a distinction needed to be made between the punishment appropriate to these two men. For that reason and for that reason alone we quash the sentence of seven years in the case of Draper and we substitute a sentence of six years.

Eastabrook had a number of previous convictions and importantly for the purposes of the submissions that are made to us he had been sentenced to life imprisonment for murder some several years earlier. He had been released on licence some years before this offence and had been working in the docks and elsewhere, and apparently very hard, for a significant period up to and including the time of this conspiracy. The judge passed upon him a sentence of six years. Realistically Mr Mark does not complain that that is inappropriate to his role in the conspiracy. He invites us however to say that it is wrong for one or other of two reasons. The first is that because on arrest Eastabrook's life licence was revoked, the time that he spent in custody pending trial did not fall to be deducted from the sentence which was imposed. Secondly, says Mr Mark, a sentence of six years is too long because it does not afford sufficient recognition for the hard work en route to rehabilitation which Mr Eastabrook had done in the period since his original release upon licence. We are afraid that there is nothing in either of those arguments. The first is simply the inevitable concomitant of Mr Eastabrook's circumstances and to accede to it would effectively mean he was entitled to have the time that he spent pending trial counted twice. The second, in so far as it is founded upon steps taken towards rehabilitation, fails to recognise that at the same time as he was taking those steps he was also committing the present offence for which he has to be punished. The sentence is perfectly appropriate and in his case his application for leave to appeal is refused.

Frost has the leave of the full court to bring his appeal against sentence. That leave was given on the basis of his medical condition, to which we will come in just a moment. Before arriving at that, Mr Fitzgibbon submits that there are two reasons, apart from his medical condition, why his sentence is too long. The judge passed a sentence of five-and-a-half years, explicitly taking six years as the sentence that he would have imposed had there been a trial. First, says Mr Fitzgibbon, that is too long for the involvement which Frost had in this conspiracy. We do not agree. Whether or not Frost was present at the principal meetings (and in respect of two of them he was), he was critical to the conspiracy. He was a director at Polymore. He was the forger in the case and he was responsible for setting up most of the business and mechanical arrangements for the importation. It was he who dealt, for example, with the shipping agents. He used false names on various occasions and his part was properly assessed by the judge. Secondly, says Mr Fitzgibbon, he has not received sufficient reduction in sentence for his plea of guilty. The trouble with that is that he elected not to enter his plea of guilty until he had first attempted to persuade the judge to exclude certain evidence and thus improve his prospects of contesting a trial when he knew perfectly well that he was guilty. If a defendant chooses to do that and to enter his plea of guilty only after some days of legal argument and either immediately before the jury is sworn or immediately afterwards (it does not matter which) he cannot expect the same recognition as will be given to a man who enters his plea at an early stage. The judge effectively deducted 10 percent or something a little less. He was perfectly entitled to pitch the reduction at that level.

The real point in Frost's case relates to his medical condition. The medical condition of a defendant may not be relevant to sentence at all, but it may be, as Mr Fitzgibbon correctly submits, if it demonstrates that the imposition of imprisonment is for him a significantly greater punishment than it would be for other people. Frost is 53. He has very longstanding and serious rheumatoid arthritis of the seropositive variety. It is not a new condition and he must have got used (to some extent) to living with it. He certainly committed the present offence despite any disability that the condition imposed upon him. But he has this condition which is undoubtedly extremely painful and disabling to a serious extent. He has already had both knees, both hips and a shoulder replaced.

The judge had a much less full medical report available to him than we have. The evidence which we have does demonstrate that he is wholly dependent upon medication, that he is significantly handicapped and also that he is significantly vulnerable to any kind of infection, that is to say the effect of the medication is greatly to reduce his immunity. Inevitably a closed community such as a prison is a place where the risk of infection cannot be avoided. It is also the case that there is an element of reduced life expectancy, but that is some significant time in the future and does not by itself, as it seems to us, enter the equation in the present case. He has trouble dressing. He can manage because he has been doing it for years but he needs aids or help. He is unable to do most of the activities which would otherwise be available to prisoners and he is significantly handicapped in motion and in daily living. Within a short time of incarceration he lost no less than three stones in weight which is a very large amount. That appears to have stabilised but it is perhaps some indication of the pressure which imprisonment inevitably places upon him.

Now that we have the fuller picture, which the judge did not have, we think that justice is done if, starting from the judge's correct beginning point, the sentence is reduced to one of four-and-a-half years in recognition of the additional punishment which imprisonment will necessarily have for somebody in his condition. For those reasons in his case the appeal is allowed. We quash the sentence of five-and-a-half years and substitute one of four-and-a-half years.

In the result therefore the applications for leave to appeal against conviction of Draper and Eastabrook are refused. Eastabrook's application for leave to appeal against sentence is refused. Draper's is granted, the appeal is allowed and a sentence of six years substituted for one of seven years. In Frost's case his appeal is allowed against sentence and a sentence of four-and-a-half years is substituted for that of five-and-a-half years previously imposed.

MR KOVALEVSKY: Might I just ask your Lordships to consider whether it is appropriate to allow Mr Draper -- in fact in this case it would the family of Mr Draper in reality -- a proportion of the defence costs. The section that I am looking at is section 16 of the Prosecution of Offences Act 1985, set out at 6-3 on page 989 of the current edition of Archbold. The relevant section for --

LORD JUSTICE HUGHES: This is costs out of central funds.

MR KOVALEVSKY: Yes.

LORD JUSTICE HUGHES: The difficulty about that, Mr Kovalevsky, is this, is it not. He was legally aided at the trial, I take it?

MR KOVALEVSKY: He was. I think -- I do not want to go into it. There was a severe difference of view.

LORD JUSTICE HUGHES: Maybe, but his representation order would have covered his appeal.

MR KOVALEVSKY: Yes, it would, but what in fact I am asking you to consider are the very much cut down provisions in fact of subsection (7), you will see, which allows the court to make a partial order where it is appropriate and I make it absolutely clear that I would only be looking for recovery in relation to the matter of sentence alone given the findings.

LORD JUSTICE HUGHES: I follow that.

MR KOVALEVSKY: And also I take it that the court, if the court were with this application, would wish to go under subsection (9)(b) which is that they are taxed by the appropriate authority in which case it may be very a substantially smaller sum.

LORD JUSTICE HUGHES: I do not want to be thought to be giving any indication but the most you could decently ask for, if anything at all, would be junior counsel, I am afraid, on sentence only, would it not?

MR KOVALEVSKY: Those who funded this of course hear exactly what my Lord says, but there was some merit in the sentence matter at least and I would ask that the court at least consider exercising those powers under this section.

LORD JUSTICE HUGHES: Thank you very much indeed. (Pause) No, I am sorry, Mr Kovalevsky.

In each case the time in custody, where applicable, is to be deducted, as previously.