Boakye & Ors, R. v

We have before us six applicants who were sentenced for bringing into this country sizeable quantities of Class A drugs (in each case cocaine). None is shown to have engaged as entrepreneur in the large-scale buying, importing and selling of the drug, but each worked, directly or indirectly, for people such as we have just described. Each fell to be dealt with for a single transaction, having been caught bringing the drug through customs control. The quantities each carried varied, but they were all sizeable. The smallest was about 1 kilogram, and the largest was as much as 7.35 kilograms (in each case the gross weight, which is the relevant figure). The quantity of the smallest was about 660 grams at 100%, and the largest as much as 4.8 kilograms at 100% purity.

It follows that the drugs that were carried into the country were worth very large sums of money indeed. Moreover, and more significantly, they had the potential to cause untold misery, addiction, further crime and further victims.

All of the applicants could properly attract the description "courier" in the sense that they were all dealt with on the basis that the drugs they carried belonged to others. It is important to say that that does not mean that all who can attract that description are the same. They are not. Their culpability is likely to vary. At its simplest there are those who are exploited or oppressed by others, and there are those who engage voluntarily in the couriering of drugs, are in it for the money and have the freedom to make the decision. There are many other gradations of culpability which it is unnecessary at present to attempt to sketch. In the present cases the culpability of the six applicants varies. We shall return later to the manner in which such variation in culpability is addressed for the future in the new Sentencing Council Guideline.

The factor which is common to these six cases, and the reason why they have been listed together, is that all of the applicants were sentenced before the coming into operation on 27 February 2012 of the recent Sentencing Council guideline. Some of the applicants were sentenced a very long time before that. Nevertheless, all of them contend that it is because of the new guideline that their sentences ought to be reduced to what it is suggested they might now be if the facts of their cases were to recur. It is expressly not contended on behalf of any of the applicants that her sentence was other than in line with well-established sentencing authorities and practice in force at the time that she was sentenced. Accordingly, the short common point of principle is whether this new guideline operates retrospectively to render manifestly excessive sentences which when passed were in accordance with prevailing practice, as explained in a very long-established series of cases in this court.

The applicants were sentenced as follows -- and we take them simply for convenience in chronological order:

The new guideline, which has been debated before us, was published on 24 January 2012. In bold print at the beginning appears the following statement:

The time for bringing to this court an application for leave to appeal against sentence is 28 days from the passing of the sentence. There is good reason for that. Late applications clog up current and meritorious cases. Moreover, everybody concerned with cases (and we do not mean simply the defendant, but all concerned on both sides, and those interested in the fate of the defendant) is entitled to know promptly the final outcome.

In this case the first four applicants seek extensions of time in order to bring their applications for leave to appeal against sentence. The court has power to extend time in an appropriate case. Its practice is to do so, however, if, but only if, injustice would otherwise follow, or there is some compelling reason to do so. In the present case the extensions sought are respectively these: Jagne, just short of three years; Nwude, about two-and-a-quarter years; Alleyne, a little under two years; and Boakye, about one year. It is frankly admitted that, on advice, each of them deliberately abstained from making her application at the right time, but rather waited until the new guideline was available and could be asserted to be relevant.

In producing the new guideline, the Sentencing Council expressly made clear that in most respects, although it adopts a modified and clarified method of reasoning, it is expected to produce sentences broadly in line with existing practice. The Council, however, anticipated that its approach would result in reductions in sentence for a certain sub-class of courier (commonly, if inaccurately, known as "mules"). The sub-class in question is the group of disadvantaged defendants, particularly those from an under-developed country, who have been exploited by serious drugs criminals and persuaded to carry drugs often for very small reward. We agree that for such defendants the new guideline will often result in a shorter sentence, and on many occasions a significantly shorter sentence. We do not agree that the present applicants all fall into that category. Indeed, it is clear that some of them do not. However, it follows from what we have said that the question that arises is whether or not the new guideline operates retrospectively. This has been the principal point argued and we deal with it first.

Mr Fitzgerald QC, on behalf of all the applicants, submits that the effect of the new guideline is to render the old sentences (and indeed many others) manifestly excessive. The argument that it has that effect runs as follows. First, the change of approach to couriers, and especially to the lowest level of couriers, demonstrates, it is submitted, that the principle upon which such offenders have hitherto been sentenced was wrong and unfair; it is "fundamentally disproportionate". In other words, the new guideline shows that all sentences imposed on such offenders (from at any rate R v Aramah in 1982) can now be seen to have been manifestly excessive. Secondly, it is said that that is confirmed by the approach of this court to the standards of fair trial and consequent safety of conviction, as applied, for example, in R v Bentley [2001] 1 Cr App R 307. Thirdly, in the case of the last two applicants, whose applications have been brought in time, it is submitted that the sentencing process is not over until this court has dealt with their applications for leave to appeal and that for that reason additionally in their case the new guideline is applicable. Fourthly, in the case of the same two applicants, although they were sentenced before the new guideline was operative (and indeed before it was published), they were sentenced after the publication in March 2011 of the most recent Sentencing Council Consultation Paper. That had revealed the possibility that the eventual guideline might take the form which it eventually did (more or less) in relation to some couriers. Therefore, it is submitted, in their cases the sentencing court ought to have had regard additionally to that paper which again shows that the sentences which were imposed are manifestly excessive and fundamentally disproportionate. Fifthly, it is submitted that if the new guideline is not given this effect, there will ensue an arbitrary and unfair distinction between offenders who were sentenced just before and offenders who were sentenced just after they came into force.

In addition to those submissions on the operation of the guideline, Mr Fitzgerald submits that the sentences imposed on some of the applicants were additionally manifestly excessive because they failed to take into account the fact that they were the mothers of children. He relies on Article 3(1) of the United Nations Convention on the Rights of the Child and on the decisions in R v Bishop [2011] EWCA Crim 1446 and R (HH) v Westminster City Magistrates' Court [2011] EWHC 1145 (Admin).

We have reached the very clear conclusion that those submissions are wrong. First, sentencing practice varies from time to time. Sentencing may increase. For example, sentencing for violent and sexual offences has undoubtedly increased very significantly over the past fifteen years or so. Equally, sentencing may decrease, as this guideline achieves (at least for the lowest categories of drugs courier). There are many other examples. One is the reduction by Parliament, as long ago as 1992, of the maximum sentence for commercial burglary from fourteen years to ten. More recently, Parliament has introduced by the Criminal Justice and Immigration Act 2008 new restrictions on the imposition of indefinite sentences for public protection and of extended sentences. Indeed, if the Bill currently before Parliament is approved, there will shortly be further and yet tighter restrictions. Sometimes the change may go first in one direction and subsequently in the opposite. An example is section 29(1) of the Criminal Justice Act 1991 by which Parliament stipulated that in most cases no regard should be had to previous convictions, which had the effect that for the great majority of offenders sentencing came down. Parliament subsequently reversed that change by section 66 of the Criminal Justice Act 1993.

The criminal justice system has been affected by a very large number of changes in sentencing practice, mostly imposed by Parliament, over the past twenty years or so. Moreover, to an extent sentencing responds to the needs and perceptions of justice which are entertained by the public. Such attitudes change from time to time and in consequence in many cases sentencing is likely to change. If changes in sentencing practice were generally regarded as retrospective in operation, not only would the courts be deluged with the need to re-sentence those whose cases have long been closed, but also great injustice would be likely to be done as between offenders. That would be because it would be a matter of accident whose sentences had or had not by the time of adjustment been served and thus become incapable of alteration. Indeed, it would be the lesser offenders with shorter sentences whose cases would be likely to be past adjustment.

In R v Graham [1999] 2 Cr App R(S) 312, which was referred to the Court of Appeal by the Criminal Cases Review Commission, it was made absolutely clear that when such changes occur they do not do so retrospectively. The judgment of the Vice President (Rose LJ) makes the reasons plain. He said (at page 315) as follows:

Mr Fitzgerald invites us to say that the reasoning there applied in Graham does not apply to the present situation. First, in Graham a relatively small adjustment in sentencing was under consideration, whereas the current change may well be greater in some cases. Secondly, he says that there is a distinction between this court giving guidance, as it did before the existence of the Sentencing Guidelines Council and the Sentencing Council, and indeed still may, on the one hand, and, on the other, the Sentencing Council doing so.

The answer to that is that the Sentencing Council's guideline was deliberately expressed by the Council to be prospective and not retrospective. The Council considered it and gave its answer. The guideline was published on 24 January 2012 and, as we have said, it was stated to come into operation four weeks later, on 27 February 2012.

We, for our part, endorse the views expressed in Graham. We are quite satisfied that the reasoning applies equally to a new guideline issued by the Sentencing Council, particularly where the Sentencing Council itself thus directs. Guidelines such as these make essentially prospective and not retrospective changes to sentencing practice. They apply to sentencing which takes place after, but not before, they come into operation. Further, that follows from the obligation of the court under section 125 of the Coroners and Justice Act 2009 to follow the guideline. This guideline is explicit and contains a direction that it shall apply to cases which fall to be sentenced after 27 February 2012.

We have been referred both in writing, and to a lesser extent orally, to a number of individual cases. Some are two judge courts dealing with individual sentences; some were influenced to an extent by later developments in the prevailing tariff, but some were not. None was a decision which purported in any manner to alter the general principle enunciated in Graham, even if there was power to do so. We do not propose to say any more about them. Subsequent courts need look no further than Graham and the present case.

R v Nagar (1994) 15 Cr App R(S) 273 is scant authority for the reverse. In that case, between the imposition of the sentence and the hearing of the appeal against it, Parliament had reduced the maximum sentence for commercial burglary, with the result that detention under what was then section 53 of the Children and Young Persons Act 1933, and is now section 91 of the Powers of Criminal Courts (Sentencing) Act 2000, was no longer available for the appellant because he was aged 16 at the time. The court reduced the sentence of five years' detention, which had been imposed, and in part did so because of the change in the law. But, far from applying the new law, the court substituted a sentence of three years' detention, which was equally unavailable in a new case. Had the court adopted the approach which Mr Fitzgerald urges on us, it would have had to observe the new maximum of twelve months.

Nor do we agree that Bentley has any application to the inevitable changes in sentencing tariffs which occur from time to time. To say, as this court did in that case, that when it comes to fundamental standards of the fairness of the trial process the court must apply those as they are now understood does not begin to say that sentencing tariffs are such fundamental standards, and they clearly are not. The court indicated, moreover, that a change in standards was not the reason for its decision (see paragraph 5).

In a sense, the sentencing process taken as a whole is prolonged when a defendant makes a timely application for leave to appeal against his sentence, as the last two applicants have done in the instant case. However, whenever an application is made for leave to appeal, or an appeal is heard, the question for this court is whether the sentence, as imposed, was manifestly excessive or wrong in principle. Except to the limited extent that fresh information about the defendant may sometimes be receivable by this court on the principles which apply to fresh evidence, especially where it has come to light since the sentence was imposed, that question falls to be answered by reference to the facts, the circumstances and the tariff as at the date of sentence.

We agree that where there is known to be an impending change in sentencing practice, it may in some circumstances be open to a judge to include that in his assessment of the case as a whole. An example is R v Bow [2008] 2 Cr App R(S) 61. That, however, does not carry the implication that a decision not to do so will result in a sentence which is wrong, whether too high or too low. Moreover, it is important for sentencers to remember, in the case of the Sentencing Council's guidelines that the process of consultation which precedes them is a usually substantial and always meaningful one. It frequently results in changes to the eventually published guidelines. The appearance in a consultation paper of possible proposals as to change of approach, so that they may be discussed, is not a safe basis for an assumption that the final outcome will be the same. This court so held in R v Valentas and Tabuns [2010] 2 Cr App R(S) 73 (page 477) at paragraph 18. If that point needed illustration, it is clearly demonstrated by the fact that there has been a whole series of consultation papers relating to sentencing for drug offences over the past decade or so. The contents of the eventual guideline are not the same as those which were canvassed in the most recent consultation paper of March 2011.

Lastly, whenever there is a change of tariff, and whether it is the result of Parliamentary or other intervention, there is inevitably potential for different outcomes between offenders sentenced before the change and those sentenced after it. We do not, however, agree that this creates an injustice towards those who were perfectly properly sentenced before the change. On the contrary, to apply the guideline retrospectively would carry a greater risk of injustice. The injustice would then be to those who were sentenced under the same regime as offenders who now seek retrospective alteration, but whose sentence, because it has been served, cannot be adjusted. The reality is that any change has to start at some point. Unfairness would be created if a change is permitted to undo proper decisions which have previously been made, and then only some of them.

In November 1989, in New York, the General Assembly of the United Nations adopted the Convention on the Rights of the Child ("UNCRC"). It came into operation in April 1990, having been signed by the great majority of the world's countries, including this one, and ratified by almost all of them. Its recitals draw on the universal declaration of human rights in general and on the special needs of children for protection. So far as the administration of criminal justice is concerned, the only reference contained in the Convention is to the Beijing principles for the treatment of child offenders (see Article 40), together with Article 9(4) which provides that where imprisonment separates a parent from a child, information shall be given to each member of the family about the whereabouts of others. The Convention sets out a large number of specific rights to be accorded to children. They are concerned with the care and upbringing of children and the safeguarding of them from abuse, but they are not limited to such matters. They also include the treatment of children in relation to immigration or entry decisions, the trafficking of children, a child's right to freedom of thought and expression, and indeed a general right to an adequate standard of living.

There is a general provision in Article 3(1) which states:

In ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166 the Supreme Court held that Article 3(1) applies to immigration decisions so as to make the best interests of a child -- typically affected by an immigration decision about his parent or carer -- a primary consideration. It should be noted that that expression differs from the expression "paramount consideration", which is the test under both the United Kingdom's law and the law of many democratic countries for decisions which are specifically about the manner of care and upbringing of children. That enhanced test is made the test for adoption decisions by Article 21 of the Convention.

In ZH (Tanzania) the Secretary of State had conceded the proposition that Article 3(1) applied to the immigration decision there under consideration. Immigration decisions are indeed directly dealt with by Article 10. It was further conceded that, once the Convention was applied, the removal of the particular mother concerned was disproportionate. It does not follow from that that Article 3(1) applies to every judicial decision which may have a knock-on effect on one or more children. The structure of the Convention suggests that it does not. It is concerned with decisions which concern children. If it had been intended that it should apply to penal policy in the case of adults, it would have said so. As Baroness Hale made clear in ZH (Tanzania), the principal United Kingdom implementation of the Convention is accomplished via section 11 of the Children Act 2004. That lists the authorities and decisions to which it applies. As she also pointed out, a differently expressed but related provision was subsequently made for immigration by s 55 of the Borders Citizenship and Immigration Act 2009 which requires the functions of the Secretary of State to be discharged "having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom". There is no suggestion, however, anywhere that this principle, however expressed, can possibly apply to general sentencing practice so as to make the interests of children of a defendant a decisive factor in the sentencing of adults, and we have no doubt that it cannot.

In R(HH) v City of Westminster Magistrates' Court [2011] EWHC 1145 Admin) Laws LJ, in reliance on the Supreme Court's decision in Norris v USA [2010] UKSC 9, held that Article 8 ECHR and Article 3(1) UNCRC, whilst they applied to extradition proceedings, would generally have to give way to the public interest in extradition: see paragraphs 60-63.

We agree that the interests of affected children may frequently be of relevance to the sentencing process. That will especially be so where the crime is at the lower end of the criminal calendar, and especially where the sentencing decision is for that reason on the cusp of custody or non-custody.

R v Bishop [2012] EWCA Crim 1446 is a decision of a two judge court which lays down no point of general principle and is not appropriate for citation as authority; but it is a good example of what we have just said. There the appellant was convicted of one offence of commercial burglary in which some chocolate was stolen and of dangerous driving in the course of attempting to escape. He was the carer for five children aged between 5 and 13. The sentences were consecutive terms of four months' imprisonment. This court, comprising two very experienced judges, felt able to order that those sentences, which it held were proper, could be suspended. It did so in part because the sentencing judge had not put into the equation the effect of an immediate custodial sentence on the children.

Such decisions are undoubtedly proper if the facts justify them. They are made regularly by Crown Courts up and down the country. So to say is a very long way indeed from the proposition that in considering the sentence on a parent or other carer the interests of the children are a primary consideration, and thus in some manner take priority over the necessity properly and consistently to punish different offenders who commit criminal offences -- and especially very serious criminal offences -- such as those with which we are, unfortunately, here concerned. Sadly, a very large proportion of sentences of imprisonment which simply have to be imposed will have an injurious knock-on effect on the children for whom the defendant is breadwinner, parent or carer. The principles to which Laws LJ referred in R(HH) apply with even greater force to the operation of sentencing practice within this country than they do to extradition to foreign countries.

The position of children in a defendant's family may indeed be relevant, but it will be rare that their interests can prevail against society's plain interest in the proper enforcement of the criminal law. The more serious the offence, generally the less likely it is that they can possibly do so.

For the reason which we have given these new Sentencing Council Guideline does not apply to any of these applicants. It may, however, be helpful, since we have been referred to it, if we make three general observations about it, at least as far as it concerns those who have committed offences of the kind which are here under consideration.

First, the guideline does not treat all couriers the same. On the contrary, it invites the court to assess each case individually according, first, to the harm done by the offence (which is very broadly measured by the quantity and type of drug concerned), and, secondly, according to the culpability of the offender (which is very broadly measured by the role or function of the offender in the offence). The differentiation reflects what was said in the March 2011 Consultation Paper, which was this:

The objective of distinguishing between different couriers has been accomplished by Step One of the new guideline. A third-world offender exploited by others will be likely to be assessed by the judge as having a lesser role: see the expressions "performs a limited function under direction", "engaged by pressure, coercion, intimidation" and "involvement through naivety, exploitation".

By contrast, the courier who is worldly-wise, who knows what he (or she) is doing, and does it as a matter of free choice for the money, is likely to be assessed as having a significant role: see the expressions "motivated by financial or other advantage, whether or not operating alone" and sometimes "some awareness and understanding of the scale of operation".

These two classes of offender may both attract the generic label "courier", but that is not the test. There will be different ranges of sentencing for the two groups. Indeed, sometimes there are such offenders whose role is properly to be assessed as a leading one, for example, those who are an integral part of the importation business and have a substantial financial stake in the consignment.

Second, whereas the previous case law proceeded upon the basis of quantity of drugs measured at 100% purity, the new guideline does not. The reason is that the Council was advised that in many cases, especially at the lower end of offending, scientific analysis of purity may not be available. For this reason, amongst others, the indicative quantities of weight, which the new guideline adopts as a broad measure of harm, are not the same as those spoken of in Aramah, as subsequently modified. They are gross, not 100% purity weights. Of course, in dealing with a large consignment where there has been analysis and the weight at 100% purity is known, a court may well pay attention to the additional information which it has been given. It may determine to adjust up or down, either for very high or very low purity. However, the initial indicator of the category of offence is the weight as seized.

Third, the quantities of drug which are listed under the categories of harm in the new guideline is deliberately described as "indicative quantity of drug upon which the starting point is based". They are not thresholds at which the sentencing range changes. They could not be if the starting point, which by definition is a mid-range of sentence, is to be based upon it. In other words, the weights which determine the categories are not thresholds; they are indications of the general region of weight which goes into the relevant category. It is not exclusively an arithmetical process.

For the reasons which we have given the new guideline does not apply to any of these cases. We are unable to see any reason to extend time by the sometimes very long margin sought. As we have said, none of the applicants suggest that her sentence was other than perfectly proper according to the guidance which prevailed at the time that it was imposed.

We should add that the present case provides some illustration of the potential differences in culpability attaching to those who can all generally be described as couriers. We expressly do not assent to the proposition (which Mr Fitzgerald did not orally advance) that had the new guideline been applicable each applicant would have fallen to be dealt with as an offender whose role was assessed as a lesser role. It is clear, for example, that the role of the applicant Nwude was not a lesser one. She is of dual Belgian and Nigerian nationality. She travelled by Eurostar from Brussels into this country. She offered the explanation that she had been given the drugs in the Cameroon, having become stranded. She contested her guilt. The trial judge concluded that there was evidence of her involvement at every stage of the criminal plan. Her explanations and excuses were disbelieved by the jury. She was no dupe. There was clear and compelling evidence that she was fully engaged with others whose identities only she knew. She had made the travel arrangements herself and she was closely involved in the enterprise, more so than as a mere courier.

The applicant Alleyne is a similar example. She is English. She travelled to St Lucia ostensibly for a week's holiday. She returned with drugs professionally concealed in bottles of rum. In her case also the judge had the opportunity of hearing all the evidence in the course of a trial. He reached the conclusion that the applicant was to be distinguished from the kind of courier in whose case it could sometimes be understood what drove them to act as they had, especially if they came from a very poor background. The applicant did not. She had plenty of money. She had no need to commit the offence. She had chosen to do so. The only imaginable reason was greed.

In the case of the applicant Jagne, the sentencing judge remarked that she was by no means a vulnerable third-world citizen. She lived in London. Her explanation for having been to the Gambia, that she wished to see if tribal remedies would enable her to conceive, is less than persuasive. It also seems likely that she had travelled to the Gambia to collect the drugs because she had made two trips there. She proposed to take the drugs to Edinburgh. It is possible that her male companion, whom she asserted she met by chance in the Gambia, had an undisclosed role greater than hers, but we do not know. The judge, who heard the trial, felt unable to make any findings about what had occurred in the Gambia, no doubt because the applicant's own account was wholly unreliable.

The other cases are less clear. In the case of the applicant Boakye there was no evidence of coercion or exploitation. Indeed, it is not asserted, and never has been, precisely what her role was. Were the facts of such a case to recur, the offender's role could only be decided upon if she chose to give information. Whether she would do so or not, we do not know.

The applicant Nasri was a French national with a good job in France. She offered the explanation for her travel that she had wished to have elective liposuction surgery carried out in Brazil. She said that she had acceded to an offer to have all her expenses paid by someone else if she would do a favour for him. The favour was asserted to be the taking of some computers to Brazil, although whether that could possibly have been regarded as plausible by her we do not know. She asserted (and it may be accurate) that once in Brazil she fell under the influence of strong-minded people who made sure that she carried through the transaction which they (at least) no doubt always had in mind. At that point, if she is right, a degree of pressure was exercised by way of threats and also via the fact that her companion remained in Brazil and thus no doubt under the influence of the people for whom she had been working. Once again, were the facts of such a case to recur, careful consideration would have to be given to the exact nature of her role.

The applicant Latchman is a citizen of Guyana. She appears to have accepted an inducement of money to bring the drugs to this country. The judge was prepared to treat her as having acted out of financial desperation, although hers was not a case of modest reward. On her own case she was offered £3,000, which she wanted to enable her to open a shop. Had a full investigation been made, she may well have been, we do not know, an offender who could properly be regarded as having, in the terms of the new guideline, a lesser role.

Those very brief observations about the individual cases are offered only by way of illustration of the kind of inquiry which will be necessary in future when the guideline is to be applied, as it must be, to sentences which are imposed from 27 February 2012 onwards. However, for the reasons which we have endeavoured to give, they do not apply to any of the applicants. Accordingly, we refuse the applications for leave to appeal against sentence in the case of each of them.

We are very grateful for the careful assistance of counsel on both sides. Thank you very much indeed.