Foster & Ors v R

Defendants by the names of James Whistler, Adam Foster, James Hallett, Billy Fitzearle, Lee Sheehan and Charlie Jeacock were charged on an indictment containing various counts to be tried in Portsmouth Crown Court in June 2018.

All were charged in counts 1 and 2 between 30 September 2015 and 2 April 2016 of being concerned in the supply of cocaine (count 1) and diamorphine (‘heroin’) (count 2). Hallett was also charged in counts 3 and 4 of possessing on 1 April 2016 a quantity of cocaine (count 3) and a quantity of diamorphine (count 4) with intent to supply to another. Jeacock faced similar allegations as those faced by Hallett in counts 5 and 6.

Prior to the trial before HHJ David Melville QC and a jury commencing on 4 June 2018 Jeacock had pleaded guilty to counts 1 and 2 and Fitzearle had changed his plea to guilty on counts 1 and 2. All the other defendants pleaded not guilty.

After a trial lasting 7 days, on 15 June 2018 Whistler was convicted on Count 2 and Foster, Hallett and Sheehan were each convicted on counts 1 and 2. Hallett was additionally convicted on counts 3 and 4.

On 2 August 2018, Whistler was sentenced to 4 years’ imprisonment, Hallett to concurrent terms of 14 years’ imprisonment with no separate penalty on counts 3 and 4, Fitzearle to 4 years and 6 months’ imprisonment, Sheehan to concurrent terms of 10 years’ imprisonment and Jeacock to concurrent terms of 7 years’ imprisonment. Foster did not surrender to his bail on that occasion and was sentenced on 4 September 2018 to concurrent terms of 7 years’ imprisonment and a concurrent 3-month term for failing to surrender to bail.

Foster and Sheehan appeal against sentence by limited leave of the single judge, Foster confining himself to that limited leave, Sheehan relying upon that leave, but also seeking to renew his application for leave on the grounds that were rejected by the single judge. Hallett renews his application for permission to appeal on all grounds.

Ms Ruth Becker appeared for Foster at the hearing of the appeal, as did Mr Sebastian Gardiner for Sheehan. Mr Glen Harris appeared for Hallett on his application. The single judge had wisely directed that a Respondent’s Notice be served by the Crown to respond to the points advanced on behalf of the appellants/applicant. It was prepared by Mr Tom Wilkins, counsel for the Crown at the trial. We express our appreciation to all counsel for their assistance although it is to be noted that the respondent was not represented at the hearing before us and, accordingly, we did not have the benefit of any oral response to the submissions made.

With the exception of Whistler, who was concerned only in count 2, each of the other defendants played a role in both offences. The judge, who had been the trial judge, said that he had “no hesitation in concluding that this was a Category 1 operation” and not simply “a series of trades to end users”. Although Ms Becker on behalf of Foster does not challenge that conclusion, her focus being on the level of Foster’s participation (for which leave to appeal was granted), Mr Gardiner and Mr Harris do seek to challenge that conclusion although the single judge had refused leave to appeal on this ground.

In order to be sure that this was properly to be regarded as a Category 1 operation the judge needed to be satisfied that the indicative quantity of drugs involved either in count 1 or count 2 or both combined was 5 kgs.

Given the proposed challenge to the judge’s conclusion, we need to refer to his reasoning that led to his conclusion. Before doing so, it is necessary to summarise the Crown’s case. It is to be noted that, notwithstanding the way in which the case was advanced, the allegation in counts 1 and 2 was of “being concerned in the supply” of Class A drugs, not conspiring as such to supply such drugs. It was presented as a joint enterprise case. In the circumstances of this case, it does not seem to us that much, if anything, turns on this distinction. Mr Wilkins’ opening note suggested that these three, along with others, “together formed a syndicate concerned in the supply of crack cocaine and heroin within the Hampshire area over a period from October 2015 to April 2016.” From March 2016 he suggested that -

“… the supply was controlled by a mobile telephone line ending in the numbers “2880”. A handset operating that number was recovered from Jeacock when he was arrested.”

The prosecution case was that “the enterprise was managed by Hallett with the others involved in different aspects of the day-to-day running of the business.” The case advanced in relation to Fitzearle and Jeacock is that the former was the latter’s regular driver when individual transactions were conducted and that Jeacock was “the syndicate’s trusted courier and front man.” Jeacock lived at 52 Harbour Towers in Gosport and it was from that address that Fitzearle collected him. They were observed by police officers on a number of occasions when individuals approached the car with money being given to Jeacock in exchange for something handed over by Jeacock. The inference was that Class A drugs were being supplied, an inference confirmed by the guilty pleas of Jeacock and Fitzearle.

The case against each involved in the proceedings before us was summarised in the opening note as follows:

That, in summary, is what was in the opening note. It was made clear that it did not contain “the totality of the Crown’s case at trial”. As would be expected, there was a good deal of evidence about the mobile telephone links between the various defendants and others, particularly those wanting to purchase drugs. We have mentioned the 2880 ‘phone above in respect of which cell-site evidence showed it to be travelling to meet people and to drop off drugs. The jury was given a document showing known drug users who had been in contact with the telephone during March.

Additionally, analysis of a ‘phone attributed to Sheehan, which was active on 19 November 2015 for one message and then fully active from 17 March 2016 to 1 April 2016, showed that the ‘phone had been in contact with seven other phones investigated in the investigation (including those attributed to Hallett, Jeacock, Foster and Fitzearle) 134 times, 48 of which were initiated by Sheehan’s phone. Analysis of a ‘phone attributed to Foster, active between 25 March 2016 and 1 April 2016, showed that the number was one which was stored in one of the ‘phones seized from Jeacock and was stored in ‘phones attributed to Hallett, Sheehan and Fitzearle. The number had been in contact with seven other phones involved in the investigation 254 times, 106 of which were initiated by Foster. A total of three mobile phones were attributed to Foster and were shown to have been in contact with all the other defendants 505 times with 189 calls having been initiated by Foster’s ‘phone. Finally, Analysis of Hallett’s mobile ‘phone showed that he had been in contact with 11 other ‘phones involved in the investigation 1414 times, with 872 of the calls being initiated by his ‘phone, and the contact encompassed all the other suspects in the investigation.

That there was continued close contact between the various defendants was plainly established by the telephone evidence to which we have referred and to the meetings there were between them. A perfectly reasonable inference from all this evidence is that each knew that he was involved in a Class A drug-dealing operation. The initial question for the purposes of the appeals/applications before us is the scale of that operation. Can it fairly be said to come within Category 1?

The answer to that question is to be derived from a number of factors, one of which is the length of time it can be shown that the defendants were operating together. Plainly what was observed by the police during the surveillance period can only be a snapshot of what happened if there is evidence that the defendants had been operating together over a much longer period of time. The judge concluded that, by taking the period of observation and the amount which was found together, there was “well over one kilo of Class A drugs which had been either traded or stored when the police raided on 1 April.” That conclusion is, we understand, derived from aggregating the quantities of drugs found at both premises to which we have referred. We do not understand that there is any substantial complaint about that conclusion. If there is, we reject it. It seems to us entirely justified by the evidence. However, the judge went on to say that “this supply had been going on for many months before that.”

He reached that conclusion by expressing himself in this way: that the probability was that the plan was “well afoot by July 2015 because in that time [Sheehan], who was still at that stage in custody, received an unusual amount of money into his bank account ….” From October 2015, “by which time the conspiracy had certainly started, significant sums of money not relatable to lawful employment were being paid into [the defendants’] accounts.” Hallett, Jeacock and Sheehan “each received substantial sums.”

So far as Sheehan is concerned, Mr Gardiner submits that the judge was wrong in a number of respects in relation to this. First, the only evidence the Crown relied upon to establish that the offence had started no later than October 2015 was the discovery of a SIM card when 52 Harbour Towers was searched which contained a text message referring to “spending a grand a week with you.” He said in his Grounds of Appeal that there were no text messages recovered from the SIM card for the next 6 months and the SIM could not be linked to any defendant other than Foster. (Foster, incidentally, did not give evidence at the trial; neither did Hallett.) Although Mr Wilkins’ Respondent’s Notice asserted that the judge was entitled to have regard to this SIM card, it does not controvert what Mr Gardiner said about it. Second, he complains that the judge was wrong to have any regard to the payment made into Sheehan’s bank account in July 2015. He asserts that there was no evidence at the trial about this payment and that it was not relied upon by the Crown. The payment was, in any event, outside the period covered by the indictment. All that is correct, but the judge said expressly in his sentencing remarks that he placed no reliance upon it for the purposes of assessing Sheehan’s role. However, he did express himself in the way we have recorded in paragraph 17 above which suggests that he did have regard to it in deciding when the joint offence started.

Mr Wilkins did draw attention to what must have been the jury’s rejection of Sheehan’s evidence that whilst he was regularly in Portsmouth, Gosport and Fareham he associated with people involved in the use or supply of drugs because he was considering robbing drugs dealers in the area of money. That was why he was associated with his co-defendants. Mr Wilkins contends that rejection of what was plainly a fanciful story entitled the judge to draw the inference that Sheehan was actively involved in what was going on at least from January when he started staying at Jeacock’s premises.

Whilst we have not the slightest doubt that the judge was entitled to view what Sheehan said with the deepest suspicion, we are troubled that the evidential basis for concluding as against Sheehan that the offence started well back into 2015 was as slender as we have indicated. The difficulty in relation to all the defendants is that the “hard” evidence of the telephone traffic and the surveillance was focused in the period from mid-February until the beginning of April. Whilst it is entirely legitimate to draw the inference that the operation had started before the observations started, we consider that the extrapolation exercise back as far as October 2015 on the evidence to which we have referred was insufficient to justify the sure conclusion that it began around about that time and that a total weight of 5 kgs had been traded by the syndicate. Mr Harris adopted much of what Mr Gardiner had advanced, but added that, so far as Hallett was concerned, there was no evidence of significant financial payments that would have been apparent if this was a “wholesale” operation and that the evidence was more akin to the evidence of simple “street dealing”.

We disagree. This was not simple street dealing. This was organised, large scale dealing by 6 people over a period of at least three months. Whilst the evidence does not safely establish a total weight of 5 kg we have no doubt that the volume was at least 1kg per month from the beginning of 2016 and so in the region of between 3kg and 4kg over a period of more than three months. This operation (involving 6 people) could not arguably be placed in Category 3 (“street dealing”). It falls between Category 2 and Category 1.

For those reasons, we give leave to appeal on the grounds sought to be relied upon in this regard by Hallett and Sheehan and we grant Mr Harris a representation order in consequence. Their role within the parameters set out in the preceding paragraph must be assessed. Foster’s role within the operation also falls also to be assessed within those parameters. We will deal with Hallett first because he was rightly treated by the judge as the prime mover in the overall operation and played a “leading role”.

It follows that the application made by Hallett succeeds and his appeal and the appeals of Sheehan and Foster succeed to the extents indicated.