Mulvey, R. v (Rev 1)

This is a renewed application for permission to appeal against a conviction and sentence

The applicant (now aged 43) was tried in the Crown Court at Birmingham before His Honour Judge Wall QC and a jury, and was convicted on 13 June 2018 of four counts of conspiracy. Counts 1 and 3 charged conspiracy to import Class A drugs (cocaine); counts 2 and 4 charged conspiracy to import Class C drugs (cannabis).

On 13 June he was sentenced on counts 1 and 3 to a term of 32 years' imprisonment concurrent, on counts 2 and 4 to a term of 10 years' imprisonment, concurrent as between these counts and concurrent to the sentences on counts 1 and 3. The total sentence was therefore a term of 32 years. Count 5, a further conspiracy charge in relation to the

There were co-accused who were charged with these conspiracies. They were tried in the Crown Court in 2009 at a time when the applicant was in Spain. Among these was Barry Phipps who was convicted of five conspiracy charges (counts 1 to 5) and was sentenced to an overall term of 25 years. His renewed application for leave to appeal against that

It is unnecessary for present purposes to set out the prosecution evidence or indeed to summarise its case. These matters are well-known to the applicant and his legal team. For present purposes it is sufficient to say that there were a number of strands of which three

Although various issues arose during the trial which are said to provide properly arguable grounds of appeal, the focus in the oral hearing before us related to the service by the prosecution of a large amount of accounting evidence before and during the course of the

This additional evidence consisted of: 1938 pages of exhibits served before trial and a further 4875 after the trial began. It was the prosecution case that a property in Spain (Los Arqueros) built in 2006 and 2007 and held on trust for the applicant and his family was

The evidence was deployed in what was described as three schematics or flow charts. Schematic 1 illustrated where the applicant said the funding had come from, profits from property development; schematic 2 set out what the prosecution said was the illegitimate source of the funding for the property (drugs) and schematic 3 depicted what the prosecution said was the laundering of money which maintained the property very much

Two issues arose before the judge. First, as to the admissibility of this new material and

The judge gave a written ruling on 20 April 2018, concluding that the financial evidence was admissible and giving directions as to the practical implications of his ruling. Some of what was said in the course of argument leading to the ruling are relied on by the applicant

The judge outlined the case against the applicant and its history. He referred to the two defence statements, the second of which was designed in part to answer allegations relating to his finances. In particular, it asserted that the money for the purchase of the house in Spain came from legitimate business transactions carried out by him. The trial had begun on 26 March 2018 and just after its start the prosecution had uploaded a significant amount of further evidence that was relied on as proof that the money for the purchase of the Spanish property did not come from legitimate business dealings, and that it came from via a circuitous route from Isle of Man companies in Mauritius and thence to Spain. This way was used by the applicant to move large sums of money that were not accounted for. The prosecution invited the inference that the movement of money in this way was the

The judge recorded that the defence did not accept that the evidence invited this inference. Although it had conceded that the material was relevant to the issues in the case, it is submitted that the material should be excluded under section 78 of the Police and Criminal Evidence Act 1984, as its admission would have an adverse effect on the fairness of the trial, essentially because of the lateness of its service and the difficulty in answering it. It followed that the issue was whether it was fair to allow the evidence to be presented at trial given its late service. The defence had submitted that, unlike the prosecution, they did not have the services of an accountant or junior counsel able to concentrate on the disclosure issues. The applicant was a category A remand prisoner who was travelling considerable distances each day to attend trial, and lengthy pre and post-trial conferences were simply not possible. The consequence was that the defence could not obtain his instructions in relation to the new material. In essence it was late served material with which the defence

The judge approached the issue by considering the effect on the trial if the evidence were admitted or if it were excluded. If admitted the jury would have a picture of the applicant's finances and would be in a position to consider whether the amount of unexplained money and the routes through which it passed supported the prosecution case that he was involved in dealing in large amounts of drugs. If the evidence were excluded the jury would be faced with the applicant's explanation as to how he was able to buy a luxury villa in Spain without any material against which they could assess that evidence. This would lead to an incomplete and potentially misleading picture of his finances. It was therefore in the interest of justice to admit the evidence provided the defence could properly deal with it. The judge then considered the reasons for the late service. He bore in mind that the applicant had not previously mentioned the fact that he had financial links to the Isle of Man and, prior to the start of an earlier trial, had not accepted that he had any interest in the Spanish villa. Once these matters became known to the prosecution they had acted

The information was also provided in written form so that the applicant could study it. The judge found that the prosecution acted with due diligence. The judge also accepted that although the task of analysing the base material appeared to be daunting it would be much simpler in light of the fact that the material had been condensed and had been explained in

The judge then turned to the arguments advanced by the defence in relation to the practical difficulties in dealing with the material. He accepted that the defence did not have the

The judge also noted that although in possession of the material for two weeks, no steps had been taken to extend legal aid to secure an emergency extension to the certificate so as to instruct an accountant. The applicant would be in the position to give instructions about

The judge also accepted that the defence did not have junior counsel dedicated to the issue of disclosure. Nevertheless, there were two defence counsel and the defence junior counsel was well aware of the issues in the case. In contrast, the prosecution junior dealing with disclosure was only instructed two weeks before and had come to the case cold. Although it was not for the judge to decide how to organise the presentation of the defence case, he noted that there would been minimal cross-examination of many of the

The judge accepted that there were difficulties for the defence team in obtaining effective conferences with their client, however the future timetabling of the case would allow time for conferences and allow counsel to complete their work on this aspect of the case. The prosecution would call the financial evidence over three days, starting on the Monday 30 April; and it had been made clear at the start of the trial that the court would not be sitting on the following week beginning Monday 7 May. Defence counsel would not be required to cross-examine on the financial evidence until the trial resumed on Monday 14 May. This would provide a full week in which to prepare the cross-examination and possibly more at the end of the week commencing on the Monday 30 April. The judge accepted that a considerable amount of work would have to be done but was sure that it could be done in the timescale of the trial without unfairness. The alternative courses of the aborting the trial or simply proceeding without allowing the defence further time to prepare were rejected. The judge ordered the prosecution to submit a full note setting out the way in which they put this aspect of the case with reference to page numbers in the DCS of the documents on which they chiefly relied. He directed that the case be listed during the week of 7 May, so that the applicant would be brought to court for conferences

A number of points are taken in the grounds of appeal but, as we have noted, the primary

It is submitted that the judge was in error by refusing to exclude the financial evidence. The prosecution disclosure extended to over 4000 pages of financial material after the trial had started. It is said that the prosecution case and its presentation of the evidence at trial could not be properly challenged by the applicant. Although a concession was made by the defence as to the relevance of the information, it was not made at a time when defence counsel had had an opportunity to consider the evidence, and was made without full knowledge of the material. The concession was made in the light of the prosecution

The prosecution, it was said, had asserted that all the money came from drugs and, on this basis, the defence had accepted it would be relevant evidence. However, on proper analysis, the assertion was unfounded. The information obtained in schematic 3 was derived from three investigations, one of which had not been completed by the time of the

More recently in a note to the court, dated 9 October 2019, attention has been directed to a missing transcript of 20 April, the date of the argument as to the admissibility of the new material. It is said that the prosecution counsel asserted that the financial evidence related

There is a further complaint in relation to the schematic 3 document placed before the jury. This document, covered a period outside the indictment period of the conspiracy and gave the impression that the funds were the proceeds of drug dealing rather than other possible crimes (VAT fraud); this impression was reinforced by the evidence of Derek Tinsley when he came to give evidence and such evidence was inaccurate, irrelevant, inconsistent

A further point is taken that there are prosecution witness statements in relation to continuing financial investigations which may indicate that the prosecution did not comply with its disclosure obligations, and a yet further point is made in relation to disclosure schedules at trial. It is sought to argue that their nature and contents demonstrate that the prosecution failed in its obligation to make proper disclosure because of the generic descriptions of the material. This is a new point, because instead of the complaint that too

A yet further point is made in relation to other transcripts of 1 and 14 May which again we

In addition to these arguments it is said (Ground 2) that there were a number of unsatisfactory features of the trial that, when considered cumulatively, rendered the proceedings unfair and the applicant's conviction unsafe. Over 2000 pages of unused material was served during the trial without the defence having sufficient time properly to consider it. Highly prejudicial evidence was given by the applicant's two former

The Crown relied upon four pieces of evidence which should either have formed part of a bad character application or been ruled inadmissible. First, the evidence that two of the applicant's associates, Thomas Kavanagh and Gerald Kavanagh, were involved in drug dealing. Second, evidence that the applicant had a mobile phone in prison. Third, evidence of a phone call between the applicant and his previous solicitor, which would have been subject to legal professional privilege. Fourth, the fact that the applicant was questioned by the prosecution and the judge as to the identity of Gerald Kavanagh's

The response from Mr Dent, on behalf of the prosecution, is that the judge was right in his approach to the defence application to exclude the financial evidence and for the reasons

In the course of an abuse of process hearing the prosecution undertook to review all of the financial material from the relevant investigations, a review document was prepared and the judge was satisfied that all of the relevant material had been reviewed and either disclosed or placed on to the unused material schedule. The prosecution are not aware of any new evidence that would have been relevant to the applicant's case.

The evidence from the applicant's previous domestic partners was properly before the jury.

The evidence in relation to the applicant's use of the mobile phone in prison was served but not adduced in front of the jury. Leave to adduce the evidence of Gerard and Thomas Kavanagh's involvement was correctly given by the judge. They were named on the indictment as co-conspirators and there was ample evidence which indicated their involvement. Permission was also granted to rely upon the relevant parts of covert recordings. Further recordings were adduced following the applicant's evidence in cross-examination, in relation to the possibility that one of his cousins was dead by the

Mr Dent submits that the applicant was convicted on overwhelming evidence as set out in the prosecution case summary which the court has seen and on the basis of the respondent's

We have considered the submissions in the light of what has been addressed to us. The point in relation to the evidence of the applicant's use of a mobile phone in prison being not adduced in front of the jury highlights one of the problems facing Mr Owen and this court.

It is clear that the issue of funding of Los Arqueros (bought for €1.498 million) was raised by the prosecution at a hearing in October 2017; it being part, but not a particularly large part, of the prosecution case that there was evidence showing that it was beneficially

In fact the prosecution financial analyst, Mr Tinsley, met the defence team and took them through the evidence relating to the Mulestate Foundation, its connection with the applicant and its ownership of the villa. The applicant accepted he had an interest in the villa and the trial was adjourned because the applicant said he needed time to establish that the funding for the property came from a legitimate source. Subsequently, as we have noted, on 17 October a letter of request was sent to the Isle of Man authorities. The case was adjourned to March 2018, with a direction that the prosecution serve any additional evidence by 19 December. They were unable to do so, but that was due to delays that were due to the inactivity of the Isle of Man authority. It was not therefore until the first day of

The prosecution's initial evaluation was sent to the defence on 28 March. On 6 April hard copies of the financial material were handed to the defence and it was supplied on disc and uploaded to the DCS. On 27 April the prosecution financial case was opened to the jury. Between 30 April and 2 May Mr Tinsley, as the prosecution financial investigator,

It is clear that the prosecution served a very large amount of financial evidence in the course of the trial. We readily accept this would have caused difficulty to the defence. The service of late evidence, particularly complex financial evidence, was bound to cause problems. The first question for the judge was whether the prosecution was materially at fault in producing the material. He was satisfied that it was not and his reasons, by reference to the nature of the applicant's case, are clear and compelling. There was no delay in issuing the letter of request, there was delay (160 days) in answering the letter of

The second question was whether the timing and extent of the material would cause

In these circumstances, we do not accept that it is properly arguable that the service of this

So far as schematic 3 is concerned, it related to events in 2017, a very considerable time after the conspiracy. Although DC Tinsley appears to have agreed to a question put to him, that it or perhaps, more likely, schedule 2 showed the movement of money that was unaccounted for and which represented the proceeds of drug dealing at the abuse hearing on 14 May, the prosecution made it clear that it did not put forward schematic 3 as showing the movement of drug money but as showing the means by which the applicant

We have looked, as Mr Owen invited us to do, to the transcripts of 20 April 2018 before the Judge gave his ruling, the evidence-in-chief of Mr Tinsley on 1 May and his

So far as the disclosure obligations in relation to Operations Kingsland, Display and Sasak are concerned, we are told that the prosecution gave an undertaking in relation to disclosure. It was signed by the reviewing lawyer and four disclosure officers and the material was subject to key word searches, to which the defence were invited to make suggestions, a review document was considered by Judge Wall, who was satisfied that

Finally, we have considered the second ground, the various additional points. As we have noted, the financial evidence was only part of the case. There were many other compelling strands to the prosecution case which it is unnecessary for present purposes to refer. In our view, whether considered individually or together, there are no properly arguable grounds

We turn then to the application in relation to the sentence. The applicant was aged 42 at the date of sentence and had five convictions for six offences spanning 2011 to 2014. These included two convictions from 2013 and 2014 for possessing a controlled drug of Class A,

In passing sentence the judge noted that the quantity of drug which had been intercepted by the police (22 kilograms of cocaine and 392 kilograms of cannabis) was to be taken as a representative load for the purpose of estimating the total quantity of drugs traded in the course of conspiracies. Fifteen trips were made, so the total was about 300 kilograms of cocaine and 5.47 metric tons of cannabis. On the evidence presented at trial the judge concluded that the wholesale value of the drugs would have been in the region of at least £17 million. The retail value of the cocaine would have been £42 million with the retail

There was no doubt in the judge's view that the applicant was one of the directing minds of the conspiracy. He had contacts in Holland, from where the drugs were sourced, he also had contacts in Ireland, where the drugs were sold and owned a successful transport business from which he could fund the operation. Although no specific finding could be made about how much money he had made from the offending, the judge was sure that it had allowed him to live a lavish life-style and enabled him to buy, among other things, two luxury villas in Spain.

He had been living abroad when the co-accused were tried in 2009 and the judge was sure he had made a conscious decision not to return to this country to face trial. He had

The case fell well outside the Sentencing Guidelines. The judge said he had considered, as he was invited to, R v Sanghera [2016] 2 Cr App R(S) 15, which suggested that a leading role in a sophisticated importation of 40 kilos of quality cocaine should attract a sentence

Looking at the sentences passed on the co-accused the judge noted that the co-accused, Phipps, was not one of the four bosses, did not fund the conspiracies and therefore stood to profit to a lesser degree than the applicant. As a result it was inevitable that the applicant's

In the grounds of appeal it is sought to argue first, that there was objectionable disparity in the sentence imposed on the applicant and co-accused, Phipps. He was convicted of both conspiracies and sentenced to 25 years' imprisonment. Phipps was involved in and convicted of a further conspiracy. Although the applicant was alleged to have been the leader of the conspiracies the co-accused had still been very high up in the hierarchy and therefore the disparity between his sentence and those of the applicant were not justified. Second, it was submitted that notwithstanding the amount of drugs that were imported the sentence imposed was manifestly excessive. Such high sentences are usually reserved for

In an additional note, Mr Owen drew the court's attention to the case of R v Cuni & Ors [2018] 2 Cr App R(S) 18, where this court considered that 28 years was the appropriate starting point where a conspirator had been involved in helping to direct the importation of 900 kilograms of cocaine.

In refusing leave the single judge noted that the applicant had been convicted after a trial lasting almost 3 months of four offences of conspiracy to evade the prohibition on the importation and exportation of Class A and Class C drugs between 2006 and 2007 on an industrial scale. It was not in issue that the applicant was in a leadership role in the conspiracies importing from the Netherlands and exporting to Ireland. It was also accepted

By contrast Phipps played a significant role beneath the applicant in the hierarchy, stood to make less money and was not one of the four ‘bosses’. As the single judge noted, the

In the view of the single judge the initial argument, based on Sanghera that the sentence of 27 years' imprisonment after a trial would have been appropriate, ignored the obvious fact that the quantity of drugs involved in the applicant's case was considerably more than those

We agree with those observations of the single judge.

We turn then to the developed argument relying on the case of Cuni. In that case the court set out various principles which applied to the sentencing of large-scale conspiracies for

In that case, where the conspiracy was less sophisticated but Cuni played a leading role in what was the assessed importation of 900 kilos of cocaine, the court considered that the right starting point was a term of 28 years. In the present case, recognising the points made in [43(iii)] in Cuni the overall criminality, involving highly sophisticated

Accordingly, we grant leave, we quash the sentences of 32 years and substitute sentences of