Dwyer v R.

The issue raised by this appeal, which has been brought with the leave of the single judge, is the appellant’s entitlement to plead autrefois convict or, in the alternative, to obtain a stay of an indictment on the ground that it was founded upon facts the same or substantially the same as those which founded a charge in earlier proceedings.

On 21 January 2010, the day after his arrest, the appellant appeared at Central Devon Magistrates Court, sitting at Exeter, charged with an offence contrary to Section 5(3) Misuse of Drugs Act 1971, namely, having in his possession at Honiton on 20 January 2010 a quantity (in fact 3.41g at 17.66% purity) of diamorphine (heroin), a controlled drug of class A, with intent to supply it to another person. He pleaded guilty to the charge and was committed to the Crown Court for sentence under Section 3 Powers of Criminal Courts (Sentencing) Act 2000.

The appellant appeared at Exeter Crown Court on 19 February 2010 before Miss Recorder Munro QC. The prosecution was represented by Ms A Hampshire and the appellant by Mr T Holder. Exercising her powers to sit as a District Judge the Recorder invited the appellant to enter his plea to two further charges, the first charging him with possession of 0.17g of diamorphine at Honiton at 9 October 2009, contrary to Section 5(2) Misuse of Drugs Act 1971, and the second charging him that on the same day he was in possession of 2.23g of cannabis of class B, at Honiton, also contrary to Section 5(2). The appellant pleaded guilty and the formalities for committal for sentence were dispensed with.

The appellant appeared at the Crown Court together with Michelle Makin. Miss Makin was a neighbour of the appellant’s, also charged with supplying drugs. The connection was that Miss Makin claimed the appellant had given her drugs to hold on his behalf. The appellant was never charged with such an offence. Miss Makin’s case was adjourned for a pre-sentence report (“PSR”) and an assessment for a drug rehabilitation requirement (“DRR”). Mr Holder also made an application for an adjournment for the preparation of a PSR and a DRR assessment. The Recorder responded, “I know the facts of this case. He is within the range in the case of Afonso [(2005) 1 Cr App R (S) 99 (p560] of a two to two-and-a-half year sentence, is he not?” Mr Holder, replied, “He is. That has to be cast against the background where he is 31, did not get into heroin until 29 years of age, so relatively late. His record, which hopefully you have had sight of, bears that out in the sense that there is an absence of drug offending...”

Mr Holder continued:

“Really my submission is this. Yes, of course your Honour could send him to prison for the required amount, but this is an opportunity...to actually nip in the bud the problem that he has – because he has been dealing – and he is quite candid about this – for a period of about 6 months in this fashion, namely small amounts of heroin, some 25 wraps in this case. This is not unusual. He has about four wraps himself and four wraps [for] his girlfriend per day. He sells the rest; he gets it on credit and then sells it, then pays off the debt; and it funds his habit, in effect, and his girlfriend’s habit; so it is a relatively...well, it is almost not corner shop, let alone a supermarket.

But in those circumstances it may well be that a DRR will be in the public interest, because he is now on methadone; he has never ever had methadone before. He is finding it effective and...he is extremely keen to cut this past life off; and it is a short life in terms of drug-taking. The clang of the doors has clearly had an effect...”

The Recorder adjourned sentence for the preparation of “a pre-sentence report and the drug rehabilitation assessment, and him for that assessment, but with absolutely no promises that, even if it is a positive report, he will necessarily have the advantage of it”.

The appellant next appeared in the Crown Court for sentence on 12 March 2010. The case was opened by Mr A Allsop (who had not been present on 19 February) before Miss Recorder Munro QC as follows:

“Two offences, the first on 9 October of last year; a warrant was executed at 7A King Street [Honiton] the home of Mr Dwyer. The police attended and they searched the premises and seized 0.17 grams of diamorphine and 2.23 grams of cannabis. It is right that some drugs were found in the alleyway outside, but there has been no evidential link between those and Mr Dwyer, that is despite police seeing him crouching in bushes prior to them conducting the search of his address; his explanation was he was looking for his kittens. He was interviewed, and it is right that he admitted possessing both the heroin and the cannabis stating it was for his personal use … Whilst on bail – magistrates’ bail – for that offence, on 20 January the police saw someone who they believed to be a drug user [Dunster]. They then saw Mr Dwyer in the same alleyway. They believed that a drug deal was going to take place, and they saw Mr Dwyer place a small bright green package on a fence post in the alleyway. Mr Dwyer was detained. They went to the fence post and recovered the green item which subsequently was found to contain 25 wraps of heroin. His home address was searched; £100 in cash in a plastic bag matching that of the drugs that were seized [was] found. Mr Dwyer was interviewed and made no comment to all questions asked during the interview. It is right that in relation to his antecedents, whilst there are no convictions for any drug offences, he does have one caution, 8 May 2007, and that is for possession of cannabis. His convictions relate to criminal damage, theft and driving whilst disqualified, so I am not sure if I can assist with the details of those.”

Mr Holder first invited the Recorder to pay no attention to the suspicion which arose from his conduct on 9 October 2009. The Recorder remarked that the appellant had already admitted that he had been dealing in heroin to fund his own habit. The Recorder clearly had in mind the explicit admissions made at the earlier hearing. Mr Holder continued:

“So we come to this … your Honour is perfectly entitled to pick up the Sentencing Guideline and give him whatever is appropriate; but having said that … the fact is he has come late in life to drugs; … he has not had any treatment in the past; … he is now on methadone … on a reduced … script. He is doing well in prison; he has participated in all of those things that he should … I am told he has not failed any drugs tests in any shape or form; the only thing that shows up is methadone. He would very much like the opportunity, not just to get out of prison but to actually do something about the very thing that is blighting his life, and this is perhaps the one opportunity where there is the greatest motivation to do that.”

The Recorder had before her a short-form PSR dated 9 February 2010 and a DRR assessment dated February 2010. The author of the pre-sentence report, Diane Davies, said of the facts that the police had “noticed a known drug dealer [Dunster] behaving in a suspicious manner. Continuing to observe him they also noticed Mr Dwyer in close approximation. They detained the first man but continued to watch Mr Dwyer as he placed a small, green item on a fence post in an alleyway. The item was seized and Mr Dwyer was arrested.” Unknown to the Recorder and to the defence the police were engaged in a wider surveillance operation and it would appear from later events that the appellant’s arrest was premature. Attached to the PSR was a letter dated 28 January 2010, written by the appellant’s solicitors to the probation service in anticipation of a sentencing hearing on 19 February. In it, the solicitors wrote:

“Mr Dwyer pleaded guilty [in the Magistrates Court] and explained to the court that he is a heroin addict selling heroin to fellow addicts in order to fund his own supply with additional profit. He has explained that he purchases drugs every four days, keeps a third for himself, and sells two-thirds which covers the cost of purchase, just about.”

The contents of the letter were specifically referred to in the PSR under the title “Why did the offence(s) occur?” The Recorder therefore had before her the appellant’s admission that for 6 months he had been receiving heroin from his supplier every four days; that he sold two-thirds of each delivery to fund one-third which and his girlfriend consumed; that on any one day he would be in possession of about 25 wraps of which 17 would be for re-sale. The PSR proceeded upon the basis of the admissions made in the solicitors’ letter. Ms Davies made no specific recommendation but noted the appellant’s co-operation with the CARAT team while in custody, his negative drugs tests (save for methadone) and the appellant’s enthusiasm for a drug rehabilitation programme. The DRR assessment report noted the appellant’s admitted intake of 0.6g heroin daily, that he was “very motivated and keen to address his drug misuse”, that he was being maintained on 30mls methadone daily, and recommended the appellant for a 6 – 9 month standard DRR. Mr Holder informed the Recorder that the appellant had since reduced his methadone prescription to 20mls daily.

Having confirmed the continuing availability of the appellant’s home address the Recorder sentenced the appellant as follows:

“You are 31 years of age and you have made three previous court appearances for irrelevant matters. I am to deal with you today for possession of a small amount of heroin and cannabis and for possession of 25 grams of heroin whilst you were on bail with intent to supply. I am quite satisfied that you were dealing heroin in order to fund your new found addiction to that drug. Quite why at the age of 29 you decided to get involved in heroin I do not know, but I hope that this has been the wake-up call that Mr Holder says that it has. I am not going to distinguish between you and lady who earlier this morning claimed you were giving her drugs to look at; I am going to give you the opportunity that you have asked for. Dealing in heroin is always treated by the courts as so serious that only prison is justified, and it will be prison, but I am prepared to suspend the sentence today. On the possession with intent to supply the sentence is 12 months suspended for 2 years; on the simple possession there will be 3 months sentences to run concurrent to that. If you commit any further offence within that 2 year period you start at 12 months and you move up from there; got it? … and there will be a drug rehabilitation requirement for a period of 9 months …”

On 19 August 2010 the appellant was sent by Central Devon Magistrates Court for trial upon a charge of conspiracy to supply class A drugs together with four co-accused, Mark Bayton, Russell White, Sean Currie and Peter Whaley. The indictment was signed on 10 December 2010. The particulars read that the defendants:

“...between the 31^st day of July 2009 and the 21^st day of January 2010 conspired together with others unknown to supply a drug of class A namely heroin.”

On 11 February 2011 the appellant appeared before HHJ Cottle at Exeter Crown Court to plead autrefois convict. It is helpful to recall that the customary form of plea of autrefois convict illustrated by Archbold Criminal Pleadings, Evidence and Practice (2011), paragraph 4 – 155, is:

“The defendant ‘says that the Queen ought not further to prosecute the indictment against him because he has been lawfully convicted of the offence charge therein’.”

Neither party called evidence; they submitted written skeleton arguments in which the facts as submitted by Mr Crabb (who was now appearing for the prosecution) in his skeleton argument of 21 January 2011, were assumed subject to interpretation and argument. Mr Jackson (who was now representing the appellant) submitted in the alternative that the indictment should be stayed as against the appellant since it was founded upon the same facts as his conviction of 21 January 2010, or upon substantially the same facts, and there were no special circumstances which rendered further prosecution appropriate.

The evidence upon which the indictment for conspiracy to supply was founded was itemised by Mr Crabb in his skeleton argument and we summarise as follows:

1.

On 9 October 2009 a Kinder egg (GMH1) containing 25 wraps of heroin (3.85 g) was found concealed in a wall close to Dwyer’s home address in Honiton at a spot where Dwyer had been seen on 24 September 2009 examining an item.

2.

On 5 December 2009 and 22 December 2009 Dwyer was seen in Honiton with Bayton in White’s vehicle, P122 VWO.

3.

On 8 January 2010, a known drug user (Bailhache), was arrested leaving Dwyer’s address with 2 wraps of heroin in her possession. Dwyer and Currie were inside the property. Dwyer had £50 in his wallet and Currie had 8 wraps of heroin concealed in a cigarette lighter.

4.

On 8 January 2010 Bayton’s home address in Exeter was searched. A total of £11,775 in cash was recovered together with a dealer’s list which included the entry,

“Howie/Honiton = ½ = 420”

which the prosecution alleged was a reference to Howard Dwyer of Honiton being supplied with half an ounce of heroin for £420.

5.

On 20 January 2010 Dwyer was seen to deposit an item in an alleyway near his home address which was found to contain 3.41g of heroin in 25 wraps. He was arrested.

6.

On 20 January 2010 White’s vehicle, P122 VWO, was stopped on the M5 south-bound with White driving and Whaley in the passenger seat. In the front passenger foot well was found 293.5g of heroin.

7.

Mobile phones were seized from or attributed to Bayton and Dwyer. ANPR cameras on the A30 between Exeter and Honiton were checked for records of White’s vehicle, P122 VWO, and a vehicle previously registered to him, R139 SES, and the results were scheduled. The drugs were sourced from Manchester.

8.

There was contact between Bayton’s and Dwyer’s mobile phones following by a sighting of White’s vehicle making either an eastbound journey towards Honiton or a westbound journey from Honiton or a return journey on 31 July 2009 and on 28 further dates between 26 September 2009 and 19 January 2010. There was contact between the mobile phones of Dwyer, Bayton and White on other days during the period.

9.

The prosecution thus asserted that Bayton delivered heroin to Dwyer on no fewer than the 29 occasions referred to in paragraph 8 above.

Mr Crabb submitted that the scale of dealing revealed by the mobile telephone and ANPR evidence, which became available to the prosecution on 6 June 2010 and 13 April 2010 respectively, far exceeded the “relatively minor part of Dwyer’s activities within the overall conspiracy” for which the appellant had been sentenced by Miss Recorder Munro QC on 12 March 2010. He asserted that “by January 2010 the appellant was receiving a delivery of heroin (probably ½ oz or the equivalent of about 150 x £10 bags) on an almost daily basis.” This, he submitted, was very different from the facts before the court on 12 March 2010 and there was no reason why the indictment should not proceed to trial.

Mr Jackson submitted that the evidence gathered by the police after the appellant was sentenced on 12 March 2010 did no more than confirm the appellant’s own admission to the court on 19 February 2010 on the basis of which he had already been sentenced. It was not asserted by the prosecution that the appellant’s position in the conspiracy was any different from that which he had confessed, namely as a buyer of heroin on credit for re-sale on a regular basis for a period of 6 months. The quantity which the appellant admitted dealing was sufficient to provide him and his partner with 8 wraps of heroin a day for a period of 6 months.

We note that, by the date of the appellant’s appearance in the Crown Court for sentence on 19 February 2010, the police had in their possession evidence of the appellant’s suspicious activity on 9 October 2009; his association with Bayton; a deal at the appellant’s home on 8 January 2010; the appellant’s association with Currie on 8 January 2010; the appearance of the appellant’s name on Bayton’s dealer list discovered on 8 January; and the appellant’s suspicious behaviour and possession of 25 wraps on 20 January 2010. We conclude that there was available to the prosecution evidence that the appellant was a retailer of heroin and that Bayton was his supplier. The evidence did not, however, establish the frequency with which the appellant received supplies, nor the scale of his dealing; nor was this evidence opened to Miss Recorder Munro QC on 19 February or 12 March 2010.

On 11 February 2011 HH Judge Cottle rejected the plea of autrefois convict and the application for a stay of the indictment against the appellant. The appellant changed his plea to guilty on advice and submitted a written basis of plea and a written submission as to the basis of his plea. That basis was rejected by the CPS and the appellant appeared at Exeter Crown Court before Butterfield J for sentence on 29 July 2011. He was sentenced to a term of 4 years imprisonment. We examine the proceedings before HH Judge Cottle and Butterfield J in more detail at paragraphs 26 – 30 below.

We turn to consider the legal principles on which turned the plea of autrefois convict entered by the appellant before HHJ Cottle on 11 February 2011. In Beedie [1997] 2 CR App R 167, this court was required to determine what was the true ambit of the plea of autrefois convict by examination of the speeches of their Lordships in Connelly v DPP[1964] AC 1254, 46 Cr App R 183 (HL). The court accepted the analysis of Clarke J, as he then was, at first instance. The Vice President, Rose LJ said at page 170:

“Mr Smith was inclined to concede, on reflection, that Clarke J’s analysis of the speeches in Connelly v DPP was correct, namely, that the majority of the House of Lords identified a narrow principle of autrefois convict, applicable only where the same offence is alleged in the second indictment. In our judgment this concession was rightly made.

At page 251 and page 1339 Lord Devlin said, “For the doctrine to apply it must be the same offence both in fact and in law”, and he went on at page 252 and page 1340, having rejected the idea that an offence may be substantially, rather than precisely, the same as another in its legal characteristics, to reject the suggestion that autrefois applies in favour of an accused who has been prosecuted on substantially the same facts. Lord Pearce, at page 283 and page 1368, agreed with the opinion of Lord Devlin. Lord Reid, at page 200 and page 1295:

“… many generations of judges have seen nothing unfair in holding but the plea of autrefois acquit must be given a limited scope … I cannot disregard the fact that with certain exceptions it has been held proper in a very large number of cases to try a man a second time on the same criminal conduct where the offence charged is different from that charged at the first trial.”

It follows that we are unable to accept the view of the editors of Archbold expressed in earlier editions, and in paragraph 4 – 117 of the 1997 edition, that Lord Morris’s speech and, in particular, his third and fourth principles expressed at page 1305 (that the principle of autrefois applies to offences which are the same, or substantially the same, and an appropriate test is whether the evidence to support the second indictment or the facts constituting the second offence would have been sufficient to procure a conviction on the first indictment) represents the ratio of the House’s decision. Clarke J’s analysis was correct. The majority of their Lordships in Connelly defined autrefois in the narrow way which we have described, that is when the second indictment charges the same offence as the first and said that judicial discretion should be exercised in other appropriate cases.”

In our judgment this passage from the judgment of the Vice President in Beedie disposes of the appellant’s first argument. The appellant was charged in the Magistrates Court with possession with intent to supply of 3.41g of heroin. He was charged in the indictment with conspiracy to supply heroin during a period of 6 months. The plea of autrefois convict was not available to him.

We therefore need to examine the appellant’s second ground of appeal, namely that HHJ Cottle was wrong to hold that the indictment should not be stayed as an abuse of the process of the court.

The facts in Beedie were that the appellant had been prosecuted for breach of his duty under Section 3(2) Health and Safety at Work Act 1974 to maintain a gas fire installed in a flat of which he was landlord. In consequence of his breach his tenant, a 19 year old young woman, died from carbon monoxide poisoning. The appellant was subsequently prosecuted under the Housing Act 1985 and regulations made under the Act for further breaches of his obligations as ‘manager’ in respect of similar gas fires in the same property. There then followed a Coroner’s Inquest which found that the deceased had been unlawfully killed. The CPS then instituted a prosecution for manslaughter. Counsel invited the trial judge to stay the indictment as an abuse of process. In the Court of Appeal the argument was advanced that no man should be punished twice for an offence arising out of the same or substantially the same set of facts. This formulation of the test comes from the words of Lord Devlin in Connelly when he said at [1964] AC, pages 1359 – 1360:

“As a general rule a judge should stay an indictment (that is, order that it remain on the file not be proceeded with) when he is satisfied that the charges therein are founded on the same facts as the charges in a previous indictment on which the accused has been tried … but a second trial on the same or similar facts is not always necessarily oppressive, and there may in a particular case be special circumstances which make it just and convenient in that case. The judge must then, in all the circumstances of the particular case, exercise his discretion as to whether or not he applies the general rule.”

That principle was accepted by the court in Beedie. The prosecution had at all relevant times known of the facts which would have supported an indictment for manslaughter, yet had chosen to charge summary offences only. The appellant had given evidence to the Inquest on the understanding that there would be no further proceedings arising out of the same incident. The respondent advanced a public interest argument that where death was involved a prosecution should take place. The Court allowed Mr Beedie’s appeal against conviction on the ground that there were no special circumstances which made it just to try the case of manslaughter. The same formulation of the principle was accepted by the court in Phipps [2005] EWCA Crim 33. At paragraph 21, Clarke LJ, as he then was, giving the judgment of the court, observed:

“21.

The authorities do not consider in detail what is meant by the same or substantially the same facts but, in our view, as Lord Pearce makes clear in the passage already quoted, they essentially mean that the Crown should not be permitted, save in special or exceptional circumstances, to bring a second set of proceedings arising out of the same incident as the first set of proceedings after the first set of proceedings has been concluded. The principle (which is in essence that identified in the civil law by Wigram CJ in Henderson v Henderson) is that the Crown should decide at the outset, or at the latest before the conclusion of the first set of proceedings, what charges it wishes to bring arising out of the same incident. Any other approach is unfairly oppressive to a defendant. It is for that reason that the burden is on the Crown to identify special or exceptional circumstances to justify such a course. Once the Crown has identified the charges it wishes to bring, it is a matter of case management how those charges are tried. Thus it is a matter of case management where and when the trial or trials should take place.”

The central issue whether a second prosecution is brought on “the same or substantially the same facts”, or the proceedings arise “out of the same incident as the first set of proceedings” is brought into sharp relief by the facts of the present case. The facts in respect of which the first prosecution was launched (we emphasise “launched”) were that the appellant was caught in possession of 3.41 grams of heroin in 25 wraps, with intent to supply. While the prosecution had or had access to evidence which gave rise to the strong suspicion that he had done it before, it did not have evidence upon which to charge the appellant with a conspiracy the breadth of which later appeared in the second indictment. That charge only became available to the prosecution when it was in possession of the telephone and ANPR evidence.

The issue now arises whether the terms of the appellant’s public admissions to the sentencing judge were capable of and did constitute the facts upon which the first set of proceedings were concluded (we emphasise the word “concluded”). It is a principle of sentencing practice that the defendant may not be sentenced for offences with which he has not be charged or which have not been taken into consideration. Offences taken into consideration may be formally listed in a schedule served on the defendant in advance, and steps must be taken to ensure that the defendant admits each further offence and understands that the court will consider them when deciding what the appropriate sentence is. (Quaere whether a plea of autrefois convict is available when an offence taken into consideration is subsequently charged in separate proceedings – see Nicholson [1948] 32 Cr App R 96; c.f. McMinn [1945] 30 Cr App R 138). However, a practice has emerged in prosecutions for possession of drugs with intent to supply by which the sentencing judge makes an assessment of the scale of the offender’s involvement in drug trafficking, proved by evidence of or admissions as to the surrounding circumstances. In Russen [1981] 3 Cr App R (S) 134 the offender pleaded guilty to four counts of possession of drugs with intent. He had made a confession statement in which the full extent of his involvement had been described. The court approved the sentencing judge’s decision to assess sentence not merely by reference to the four charges but also by reference to the background established by his statement. Later decisions of the court cast doubt on this practice. Where the defendant resiled from admissions of further offending, the court should not have sentenced on the basis that they were true admissions (see Ayensu& Ayensu [1982] 4 CR App R (S) 248). However, in Satvir Singh (1988) 10 Cr App R (S) 402 the appellant, a doctor, had been convicted of the possession of 80g of heroin with intent to supply. During his trial the prosecution had been permitted to lead evidence which supported its case that the appellant had also supplied smaller quantities to two nurses and that, while on remand in prison, he had been found in possession of 6g of heroin. Lord Lane CJ gave the judgment of the court which updated guidance on the level of sentencing for drug trafficking offences following changes in the statutory maximum sentences for importation, supply, production and possession with intent to supply from 14 years imprisonment to life imprisonment. As to the specific appeal of Dr Singh, Lord Lane said at page 406:

“It should perhaps be noted that in this aspect of the matter [assessing the appropriate sentence for possession with intent to supply] that the assistance which can be derived by the sentencing court from the amount of the drug actually found in the possession of the accused is limited. It is the scale and nature of the dealing which are the material factors.

Turning now to apply these considerations to the present case, this appellant was shown to be a regular dealer in heroin. He had also supplied cannabis. He was found in possession of amphetamines. He had the scales. He had sophisticated means of concealment. He had also large sums of cash to hand.”

The issue of principle was re-examined by the court in Canavan [1997] EWCA Crim 1773, [1998] 1 Cr App R(S) 79 in the context of Section 1(2) Criminal Justice Act 1991. Section 1(2) provided that in considering whether to pass a custodial sentence the court would assess “whether the offence or the combination of the offence and one or more offences associated with it, were so serious that only such a sentence can be justified for the offence”. The court held that “other offences associated with it” included only offences of which the offender had been convicted. They did not include offences revealed by evidence given in support of sample counts in the indictment. Lord Bingham CJ, delivering the judgment of the court, recommended to prosecutors that a sufficient number of charges should be laid in the indictment to reflect the prosecution’s view of the offender’s repetitive criminality. (See now CrimPR r.14.2(2) for authority to charge in a single count multiple incident offences, and section 17 Domestic Violence, Crime and Victims Act 2004 as to an application to follow a trial by jury with a trial by judge alone.)

A year later, judgment was given in the appeal in Djahit [1999] 2 Cr App R(S) 142. Djahit pleaded guilty to possession of heroin with intent to supply and to simple possession of cannabis. The police found in the appellant’s house four bags of heroin and a further small quantity in a sock. The total weight was 21.5 grams. Also found was £6,000 in cash, a dealer’s list, a set of scales and bags. The appellant accepted that all but the dealer’s list belonged to him. Hooper J, as he then was, giving the judgment of the Court, said, at page 145, that the mere fact that the appellant had pleaded guilty to a single count of possession with intent did not prevent the court from assessing the level of dealing, that is, the offender’s degree of involvement, the amount of the trafficking and the value of the drugs involved. If, however, there was a dispute as to the level of dealing and there was no conviction for previous dealing over a period of time then, on the principle settled in Canavan, the judge’s sentencing discretion was limited. This limitation was subsequently confirmed in later cases including Brown [2000] 1 Cr App R(S) 300 and Ahmadzay & Ahmad [2009] EWCA Crim 1115. It has, at least since the decision of the Court in Satvir Singh, been commonplace for the sentencing court to reach an assessment of the offender’s culpability, when he has pleaded guilty to a single charge of possession with intent to supply, which is based upon his admitted course of dealing and, following a trial, for the judge to make an assessment of the evidence so as to establish the nature and degree of the defendant’s involvement, provided, in the latter case, that the Canavan principle is not transgressed.

In the present case the appellant made a public admission to the judge which went considerably beyond the culpability revealed by the single count of possession with intent to supply to which he had pleaded guilty. Since the appellant was admitting that he had been dealing for a period of 6 months in quantities sufficient to provide him with 8 wraps of heroin per day, it was clear that he had, over the course of 6 months, dealt on a substantial scale notwithstanding each sale by him was of a comparatively small quantity. He would have been liable on ordinary sentencing principles, even after a plea of guilty, to a sentence of about 4 – 5 years imprisonment since this was an offender who had kept his own store of drugs for re-sale and did so over a prolonged period. It is to be noted that the Recorder identified this as an Afonso case before she had heard the admissions put forward on the appellant’s behalf by Mr Holder. In our view this was never a case such as was envisaged by the Court in Afonso. It certainly was not such a case once the Recorder decided to sentence on the factual basis of the appellant’s admissions.

The appellant asked to be sentenced on the basis of his admissions. The prosecution (Mrs A Hampshire) did not demur. In particular, the prosecution did not in the period between 19 February 2010, when the admissions were made, and 12 March 2010, when the appellant was sentenced, make any application, either to have additional offences scheduled in a TIC form to be put to the appellant at the sentencing hearing, or move to charge the appellant with additional offences based on his admissions. The prosecution could have taken either course.

As Lord Devlin and Lord Pearce said in Connelly,and as Clarke LJ re-iterated in Phipps, the principle which underlies the court’s special discretion to stay proceedings save in the presence of special circumstances, when the second set of proceedings is founded upon the same or substantially the same facts as the first, is that the obligation is upon the prosecutor to lay all the charges which it wishes to bring arising out of the same incident. Clarke LJ in Phipps,at paragraph 21, and Moses LJ in Marcellin [2010] EWCA Crim 2733, at paragraph 26, both regarded the critical moment as the date when the first proceedings were finally concluded, and not the date when guilt was established. In our judgment, the words “the same or substantially the same facts” and “the same incident” refer to the relevant state of affairs as they existed to the knowledge of the prosecutor at the date the proceedings were concluded. At any time up to that date the prosecutor may lay the charges it wishes for the purpose of capturing the offender’s known culpability. If that culpability embraces further offences committed on other occasions which are not charged, ordinarily they should be charged or taken into consideration. This is exactly the problem which faced the prosecutor when a decision was made about two other conspirators named in the same indictment. As in the case of the appellant, Bayton and Whaley had been charged with substantive offences following their premature arrests during the surveillance operation. Those proceedings were discontinued in order that the prosecution could pursue the conspiracy indictment. In this appellant’s case that did not happen. The appellant pleaded guilty in the Magistrates Court and, in the Crown Court, made his confession. Strictly, his confession was to the commission of further offences which in the ordinary way should have attracted further charges or TICs. The present question for the court is whether an exception should be made for an assessment of culpability on the basis approved in Djahit. In order to test this question we have asked ourselves: Could the appellant have appealed successfully against a sentence of 4 - 5 years imprisonment, had such a sentence been imposed by the Recorder, solely on the grounds that the Recorder was not entitled to take into account, for the purpose of assessing the seriousness of the charge of possession with intent to supply, the appellant’s admission that he had been a regular small scale dealer for a period of 6 months? We conclude that he could not. Furthermore, whether, strictly speaking, the appellant should have been sentenced on the basis of his admissions is not the critical factor in an assessment whether the second set of proceedings were oppressive. The critical factor is whether the appellant was sentenced on the basis of those admissions.

We next consider the allegation made by the prosecution in the second indictment. It was an allegation that the appellant agreed to receive and did receive supplies of heroin from Bayton between the end of July 2009 and 19 January 2010. The amount he was proved to have received was in the order of 0.4 kilos. The admission made by the appellant on 19 February 2010 was, for reasons which we shall explain, to no less an involvement in the supply of class A drugs.

Mr Crabb has advanced the case before HH Judge Cottle, Butterfield J and this Court consistently on the factual basis that the appellant was supplied by Bayton with ½ oz deals of heroin at a price of £420 per delivery (£30 per gram); that a wrap comprised on average either 0.2g or 0.136g (0.2g being standard; 0.136g being the average weight of the 25 wraps seized on 20 January 2010); that on the street the value of the drug was £10 per wrap or £50 per gram (yielding a profit of £20 per gram). Before Judge Cottle on 11 February 2011, Mr Crabb claimed in his skeleton argument (paragraph 5.6) that the evidence established “a delivery of heroin (probably ½ oz or the equivalent of about 150 x £10 bags) on an almost daily basis” [emphasis added]. On 11 February 2011, following the rejection of his plea and application by Judge Cottle, the appellant pleaded guilty and submitted a written basis of plea which amounted to a repetition of his admissions before Miss Recorder Munro QC on 19 February 2010. The CPS rejected the basis of plea by letter of 14 February 2011 in which it was stated:

“The prosecution say that [the appellant] was receiving frequent deliveries, almost on a daily basis, of half an ounce of heroin. This would equate to around 70 wraps at 0.2 of a gram, a typical £10 deal or bag, and consequently the prosecution say he was dealing some 70 wraps a day.

These would realise £700 on the street and as the evidence suggests he was paying £420 per half ounce there was clearly a substantial profit being made by him”

If this was indeed the effect of the evidence served in support of the indictment, the appellant would have been making a profit of about £200 per day after consuming from the deliveries made eight wraps per day at a street value of £10 per wrap. A level of dealing of this magnitude would have been substantially greater than that admitted by the appellant at any stage.

However, the respondent’s case has been advanced to this Court on a completely different factual basis. In his skeleton argument served for the purposes of the present appeal, to which he adhered in oral argument, Mr Crabb wrote (at paragraphs 4 and 5):

“4.

As a result of evidence which had become available in April and June 2010 it was the Prosecution case that between July 2009 and January 2010 the appellant had received a total of about 410g of heroin for onward supply as part of the conspiracy to supply.

5.

This would equate to about 3,000 wraps of equivalent weight to those found on 20 January 2010 (with a street value of about £30,000).”

Mr Crabb’s figures now assume that the appellant received 29 deliveries of ½ oz deals and not almost daily (up to 182) deliveries over a period of 6 months. We note that this is entirely consistent with the appellant’s admission to the Magistrates Court, repeated in his solicitors’ letter to the Probation service, that he received deliveries every four days. His admission was made before he can possibly have known of the evidence which the police would subsequently gather, which appeared to confirm some 29 deliveries during a period of 182 days. The calculation of 3,000 wraps in Mr Crabb’s paragraph 5 is produced by taking a wrap content of 0.136g. Thus (410g ÷ 0.136g), 3,014 wraps were received by the appellant during the 6 month period. That is a daily average of roughly 16 wraps somewhat fewer than the appellant’s implicit admission. During argument, Mr Crabb conceded in answer to Popplewell J the proposition that, given the profit margin of £20 per gram upon which the prosecution advanced its case, the appellant’s scale of dealing would indeed have been no more than was necessary to sustain a habit of eight wraps of heroin per day.

Mr Crabb submitted to Judge Cottle on 11 February 2011 that he should focus upon the charge of possession with intent to supply. The Crown, he said, had not agreed the factual basis for sentence put forward on behalf of the appellant, a submission also advanced on appeal. He asserted that the appellant was not then being frank about the scale of his activity. The judge addressed Mr Jackson during his reply to Mr Crabb’s argument as follows:

“...But he was being sentenced for one offence on one occasion. The Crown’s case is that the evidential picture now available here is wholly different from the picture that existed at the time that he was sentenced for that one offence.”

Mr Jackson responded:

“He must with respect have been sentenced on the basis of the information that was placed before the sentencing judge, and that included the fact that it was placed before the court that on his behalf he was effectively dealing up to 25 bags on a daily basis. He was not just sentenced for one single occasion when he was found to be in possession of heroin; the rest must have been taken into account. So far as all the other material goes I accept of course there is a considerable amount of ANPR evidence and phone evidence and, as I say, if the submission I make is correct, and he effectively was advancing before the sentencing court that he had been supplying heroin on a daily basis, then all of the ANPR and all of the phone evidence does not more than show how he got his drugs. It does not matter how many pages of phone contact there is, if he has admitted dealing on a daily basis, and at its highest the Crown say now he was dealing on a daily basis, it does not make any difference; all the other evidence does not aggravate his position. I cannot take it further.”

The judge gave a short ruling as follows:

“Mr Jackson I reject your submission. I can, if you wish, and will, if you wish produce a longer ruling, the effect of which will be to reject the submission on the basis that it is clearly quite untenable in the circumstances of this case to suggest that the crime with which he is now charged, namely conspiracy to supply heroin, is in effect the same, or substantially the same, as the crime for which he has been previously convicted and sentenced. The evidential picture, as now exists, is wholly different.”

Mr Jackson did not ask the judge for a detailed ruling.

Following his plea of guilty, the appellant appeared for sentence before Butterfield J at Exeter Crown Court on 29 July 2011. Mr Crabb opened before the judge the case contained both in the written and oral argument before HH Judge Cottle, and in the CPS letter rejecting the appellant’s basis of plea, namely that the appellant had, on an almost daily basis, received ½ oz heroin (in 70 wraps at 0.2g per wrap) and had, therefore, received in total 2.43 kgs and re-sold the bulk. Butterfield J was not requested by either side to hold a Newton hearing. In his sentencing remarks at page 3A of the transcript, the judge said:

“You Dwyer were the local retailer in the Honiton area to whom Mr Bayton supplied the drugs he had collected from Manchester – I do not for a moment suggest all of them, but a substantial quantity of them – and no doubt you supplied them onwards to customers in Honiton.”

At page 5B he continued:

“As far as you Dwyer are concerned, I find it difficult to decide what is the appropriate sentence in this case. I do have regard to the fact that part of the facts on which the prosecution rely were the subject of a prosecution which resulted in your being made the subject of a suspended sentence; but when the full facts become apparent it was quite obvious that you had been sentenced on a basis which was not appropriate for what you had actually done. That said, you were a drug dealer in Honiton, and you were supplying drugs to others there. I take the view that the appropriate sentence for you, and the sentence I impose on the count of the indictment to which you have pleaded guilty, is a sentence of 4 years imprisonment.”

It is, in our judgment, an inevitable conclusion that HH Judge Cottle and Butterfield J were misled, inadvertently we are sure, as to the true effect of the prosecution case advanced in support of the second charge (indictment). The suggestion that the appellant had received almost 2.5 kgs of heroin over a 6 month period was nothing more than bare assertion, unsupported by evidence. The prosecution had established the pattern of deliveries by reference to motor and telephone traffic. That pattern established, as is now conceded, that the appellant had probably received a total of about 0.410 kg heroin by 29 deliveries of ½ oz quantities, during a period of 6 months. That was the high water mark of the prosecution case. Had HH Judge Cottle been presented with the same prosecution case as that now advanced to this Court, we do not consider that he could or would have concluded that “the evidential picture now available here is wholly different from the picture that existed at the time that he was sentenced for that one offence”; and we do not consider that Butterfield J would have concluded that “when the full facts became apparent it was quite obvious that [Dwyer] had been sentenced on a basis which was not appropriate for what [he] had actually done”. On the contrary, it is our conclusion that the appellant was sentenced by Miss Recorder Munro QC on almost precisely the same basis as that now conceded to be the basis on which the second set of proceedings was founded. No different involvement in the conspiracy (whether his role, the quantity or value of drugs, or the period of his dealing) is now alleged from that to which the appellant confessed on 19 February and 12 March 2010. We agree that the appellant may have been extremely fortunate to escape a substantial sentence of immediate imprisonment. However, on 12 March 2010, the Recorder had material before her which might have justified taking an exceptional course. The appellant was an addict who appeared to be showing unusual resolve. The fact that the sentence was exceptional is not a basis for giving the prosecution a second bite at the same cherry, let alone for finding special circumstances requiring a further prosecution in the interests of justice. In our judgment, for the reasons we have given, the second indictment was based on substantially the same facts as those in respect of which the appellant had been sentenced on 12 March 2010. It is disturbing to find that this fact has emerged with clarity only in a skeleton argument dated 21 September 2011, over twelve months after the appellant had been sentenced by Butterfield J, and without an immediate concession that the stance of the prosecution had fundamentally changed. We conclude that the second set of proceedings was oppressive and that there were no special circumstances which justified the conspiracy indictment being pursued against this appellant. The indictment should have been stayed as against the appellant as an abuse of the process of the court. We therefore allow the appeal and quash the conviction for conspiracy to supply.