Bains, R. v

1. LORD JUSTICE STANLEY BURNTON: This is a renewed application by a Pardeep Bains, who was, on 9 January 2009, at Luton Crown Court before HHJ Burke QC and a jury, convicted of two offences of being concerned in the supply of Class A controlled drugs. He was acquitted of attempting to disguise criminal property. He had previously pleaded guilty late to various counts of converting criminal property and disguising criminal property. He received a sentence of 15 years' imprisonment on the drug counts to run concurrently, and on the money laundering charges a sentence of four years' imprisonment concurrent with each other, and concurrent with the 15 years.

2. He renews his application for permission to appeal against his conviction and sentence. We have only heard, at this stage, the submissions in relation to his conviction.

3. This was an unusual case in that it was alleged that the applicant was not a street supplier of drugs. He was not alleged to be an importer, he was alleged effectively to be someone at a relatively high position in the ladder going from importation to street sales, making a lot of money and directing a number of street dealers. There was evidence of considerable sums of money going through his hands. There was no explanation accepted by the jury as to the source of that money. Indeed, he was in receipt of state benefits, as were other members of his family, through whose hands many thousands of pounds, on any basis, passed.

4. The case for the Crown was built up of what was referred to, accurately, by the judge as a network of evidence. The prosecution put together the amount of money which had been traced, the fact that there were a large number of mobile telephones found in the possession of the applicant, his association with persons who were either convicted drug suppliers, or in one case a petty criminal who had ascribed his criminal offending to his drug addiction; and the nature of the text messages retrieved from the telephones found in a house where the applicant had been. The money laundering was admitted, as we have stated. That was relevant because the Crown's case was that the money came not from any other crime, but from drug dealing. There was other evidence, such as the finding of scales, also indicative of drug dealing. All this, together, created the case that he was indeed a person who was concerned, at a high level, in the supply of drugs.

5. The grounds now put forward, on behalf of the applicant on this application for leave, are first, that the content of some of the mobile telephones which were associated with the applicant, although in most cases it was not proved that he had used them, but they were among the very many mobile telephones found when a search was conducted, should not have been admitted in evidence as hearsay as they were under Gateway (d), the interests of justice.

6. In that connection reliance is placed on the recent decision of this Court, differently constituted, in Leonard [2009] EWCA Crim 1251. That appeal, like this application, concerned messages retrieved from mobile telephones from which inferences were sought to be drawn by the prosecution as to drug dealing. In that case it was held that such text messages are hearsay. It follows that in order to be admitted in evidence there must be one of the statutory grounds for their admission. At trial it had been submitted that the messages were not hearsay and therefore the statutory provisions had not been considered. It was recognised, or accepted on behalf of the prosecution, that if the text messages were hearsay then they would have been in difficulty in establishing that it was in the interests of justice to admit the texts as hearsay evidence.

7. That case is authority for the proposition that text messages of the kind that were deployed in evidence in the present case are hearsay, and can only be adduced in evidence if the statutory requirements are met. During the course of argument we raised the question whether if the purpose of the prosecution in adducing evidence of this kind is not to establish that the text messages are true, but simply to say these are the kind of text messages that you see among drug dealers, that would not be hearsay because the messages would not be adduced as evidence of the truth of the contents of the statements contained in the messages.

8. It seems to us that Leonard is authority to the contrary effect. However, in this case the judge did regard the messages as being hearsay and therefore he did apply the statutory test for their admission. It is said that we should have regard to the conclusion reached in Leonard , certainly by the prosecution, and the concession there regarded as realistic by the court, but nonetheless Leonard is not authority for the proposition that evidence of this kind cannot, and should not, be admitted.

9. In our judgment in a case of this kind a degree of realism is required. Where messages of the kind that were adduced in this case are sought to be adduced, and where there is evidence that they are the kind of messages that drug dealers would be sending, or receiving as between themselves and their customers, or as between themselves and their supplier, as the applicant was said to be, the interests of justice may well be preferred by their being adduced in evidence. It is unrealistic to expect the Crown to call, in those circumstances, the actual drug dealers themselves, the street dealers, in order to prove that what they said in their text messages was true.

10. Indeed they may not be true. It may be that a drug dealer on the streets who indicates to a supplier that someone owes him money is not telling the truth. It may be an excuse for not paying the supplier, but it is relevant evidence if there is evidence, or if it is clear, that the messages are of a kind that would appear on the telephones of those concerned in the supply or purchase of drugs.

11. The judge in his reasons for permitting the prosecution to deal with this evidence set out with his reasons most clearly. We see no fault in his consideration of the matter. It would have to be shown that his conclusion was unreasonable. In our judgment his conclusion was not simply not unreasonable, it was the right decision to make in the circumstances.

12. The second ground that has been advanced orally is that the judge allowed bad character evidence in relation to persons who, according to the prosecution, were associated with, or had associated with, the applicant to be adduced in evidence. That evidence showed in the case of one that he had been a drug dealer, and in the case of the other that he was a petty criminal repeatedly committing offences of dishonesty, but had been the subject of a DTTO, from which it follows that his petty offending had been ascribed to his addiction to drugs.

13. In our judgment this evidence was very much appropriate evidence to go before the jury. We see no ground for interfering with the judge's decision on that, as explained by him in his reasons. It was part of a picture, which was being painted by the prosecution, of a number of matters all pointing in the same direction, namely that the applicant was a substantial drug dealer.

14. Thirdly, complaint is made in relation to the manner in which the judge dealt in his summing-up with the fact that the applicant had been previously arrested. In our judgment the judge clearly informed the jury that they had to make their decision on the basis of the evidence before them. There was no suggestion that the applicant had any previous drug offending. While the judge perhaps might have warned the jury, or told the jury explicitly, that the applicant had no previous conviction for drug dealing, in our judgment this complaint is minor and could not have affected the decision of the jury.

15. The last matter is apparently a misdescription of the amount of money that had passed through the hands of the applicant during the relevant period, and indeed in a period just before the relevant period covered by the indictment.

16. The judge in his summing-up referred to a figure of £500,000, which had not been challenged, indeed had been accepted by counsel for the applicant. That figure, we are told, was factually incorrect. It should have been just short of £280,000 and that may have affected the decision of the jury. Even £280,000 is a very large sum which required some explanation. The explanation put forward by the applicant, namely that he was a second-hand car dealer, had clearly had disproved it according to the jury’s verdict. A figure of £280,000 is a sufficiently large sum for this court to be confident that had that sum been used in the summing-up, rather than £500,000, the result would have been exactly the same.

17. We have carefully considered the summing-up and the judge's decisions on the matters, which have been challenged. We are clear that the evidence against the applicant was overwhelming and that he was properly convicted, and that there is nothing realistically arguable in the points raised. The application is therefore refused.

Judgment on Sentence

18. LORD JUSTICE STANLEY BURNTON: This is a renewed application for leave to appeal against the sentence imposed on Pardeep Bains. We consider it unnecessary to set out in detail the evidence before the judge and the facts of his offending.

19. In summary the jury found him to be, and the judge treated him as, a substantial dealer in drugs. The size of his enterprise was indicated by the amount of money which had passed through his hands. It was accepted before the judge that the figure was in the region of £500,000, but the judge sentenced him on the basis that it was around £400,000, and whether it was £500,000 or £400,000 this was not a man who was a street dealer, this was a man who was a substantial link in the chain between importer and street. He had been clever enough to keep his hands clean for some considerable period, but he had involved his family in laundering the proceeds of his drug dealing, as had been admitted by him. We say "admitted", however, he did not admit that the money was the proceeds of drug dealing, but he certainly did admit and pleaded guilty to laundering the proceeds of crime. His case was that the proceeds of the crime were dealing in stolen motor vehicles, not in drugs. The jury found that his dealing was in drugs and the judge treated him as having made large sums of money from his doing so.

20. It is said that the sentence of 15 years' imprisonment was excessive, having regard to the size of his enterprise, the sentence received by a man called Neil and the fact that his enterprise was not that large in terms of volume of drugs, and in terms of its geographical extent, as it was simply a local enterprise.

21. So far as the other offender is concerned, Neil, he was at a much lower level. He would appear to have been a street supplier. There can be no comparison between his sentence and that of Bains. So far as the volume of drugs is concerned, in our judgment the amount of money that was proved to have passed through this man's hands is a good indication of the size of his enterprise. The fact that it was local rather than national, or local rather than international, is not a point which impresses us as being separate from the amount of money.

22. The judge, having heard all the evidence, was in a good position to assess the level of his criminality and, in our judgment, the sentence of 15 years' imprisonment cannot be described as being excessive, having regard to the level of his drug dealing. We therefore refuse leave.