There are three matters before the Court. The first is an appeal against conviction by Henry Dunn, brought with the leave of the single judge, although the application for an extension of time (of 77 days) has been referred to the Full Court. The second is a renewed application for leave to appeal against sentence by Dunn, together with an application for an extension of time (of 4 days): these applications will of course only arise if the appeal against conviction is dismissed. The third is a renewed application for leave to appeal against sentence by Christian King.

At the hearing before us we heard submissions from Mr John FitzGerald on behalf of Dunn; Mr James Scobie QC on behalf of King; and Ms Claire Harden-Frost on behalf of the Respondent. We are grateful to them all for their written and oral submissions.

On 25 March 2019, in the Crown Court at Snaresbrook, Dunn (then aged 39) was convicted of participating in the criminal activities of an organised crime group. This was the subject of Count 2 on the indictment at what we will call the first trial.

On 23 September 2019 he was convicted, after a retrial, of conspiracy to facilitate the commission of a breach of the United Kingdom’s immigration laws: this was the subject of Count 1 at the first trial, on which the jury were then unable to agree and was the only relevant count at the second trial.

On 5 December 2019 Dunn was sentenced by HHJ Lees to nine years’ imprisonment on Count 1. No separate penalty was imposed on Count 2.

At the first trial, on 25 March 2019, King (then aged 38) was convicted of conspiracy to facilitate the commission of a breach of the UK’s immigration laws: Count 1. On Count 2, which was treated as an alternative count, the jury were discharged from giving a verdict.

On 5 December 2019 King too was sentenced by the Judge to nine years’ imprisonment on Count 1.

Counts 3 and 4 were ordered to lie on the file against both Dunn and King in the usual terms.

Another co-defendant, Christopher Griffin,was acquitted on both counts at the first trial.

Earlier, on 1 March 2019, James Davis hadpleaded guilty. He was sentenced on 5 December 2019 to four years and six months imprisonment.

For completeness we should mention that another man, Thomas Saddington, had been dealt with for related offences in France.

Between 31 October 2017 and 7 November 2017 there was a conspiracy, involving the above five named individuals and others unknown, to bring four Vietnamese nationals to the UK who had no lawful entitlement to be here.

On 6 November 2017, a rigid hull inflatable boat (“RHIB”), without navigational and safety equipment, was piloted by Davis, who had no formal qualifications, across the English Channel from Dymchurch beach, Kent to France. It was an agreed fact at the trial that there was fuel which would have enabled a voyage of at least 230 nautical miles. During the launch King’s vehicle got stuck in the sand. Dunn travelled to Kent and gave King a lift to Dymchurch before returning to Essex.

The four young Vietnamese men, wearing unsuitable clothing and without lifejackets, were bought back, in the RHIB, to the Kent coast, arriving very early on the morning of 7 November 2017. The young men were collected by Griffin but the vehicle was intercepted by the police on the M20.

The prosecution case was that the accused were guilty of both counts on the indictment. It was alleged that telephoneand surveillance evidence demonstrated that King engaged in significant planning and reconnaissance. This included determining the best site to land and that he had made a practice run on 4 November 2017. King was responsible for providing the RHIB, recruited Davis and provided the technical boating expertise. Dunn recruited Griffin, to collect the young men from the beach on landing.

The accused were interviewed under caution. King exercised his right to silence in the first interview and in the second he gave a prepared statement: that he had sold the RHIB to Davis and had assisted with its launch on 6 November for a fishing trip. Davis had provided him with a phone. Dunn exercised his right to silence in both interviews.

The defence casefor Dunn was that he was unaware of a plan. Initially he denied going to Dymchurch but in evidence he saidthat his brother, Matthew, had agreed to go to the coast as a favour to Dunn’s driver (it was an agreed fact that Dunn was disqualified from driving),who had broken down on route to pick up a friend. He had introduced his driver to Griffin.

At the first trial there were, so far as material, two counts on the indictment against King, Griffin and Dunn. Count 1 alleged conspiracy to facilitate the commission of a breach of the UK’s immigration’s laws, contrary to section 1(1) of the Criminal Law Act 1977. Count 2 alleged participation in the criminal activities of an organised crime group, contrary to section 45(1) and (9) of the Serious Crime Act 2015 (the “2015 Act”).

Section 45(1) of the 2015 Act makes it an offence for a person to participate in the criminal activities of an organised crime group.

Subsection (3) provides that “criminal activities” are activities within subsections (4) or (5) that are carried on with a view to obtaining (directly or indirectly) any gain or benefit. Subsection (6) defines “organised crime group”.

Subsection (2) provides that, for this purpose, a person participates in the criminal activities of an organised crime group if the person takes part in any activities that the person knows or reasonably suspects (a) are criminal activities of an organised crime group, or (b) will help an organised crime group to carry on criminal activities.

Under subsection (9) the maximum penalty for this offence is a term of imprisonment of five years. In contrast, the maximum penalty for an offence of conspiracy to commit an offence under the immigration laws is 14 years.

In the first trial (and the retrial) the issues for the jury on Count 1 were whether: (1) there was an agreement to bring the four illegal immigrants into the UK (admitted by the accused), (2) the defendant joined the agreement, (3) the defendant knew what he was agreeing to and (4) when he joined the agreement, the defendant intended that he or some other party to it should carry the agreement out. If the jury returned a not guilty verdict they would be asked to consider Count 2.

On Count 2, the issues for the jurywere: (1) whether the defendant took part in any activities, (2) which he knew or reasonably suspected were either (a) the criminal activities of an organised crime group (other than the criminal activities of less than three people) or (b) would help an organised crime group to carry on criminal activities.

At the first trial counsel for King submittedthat the jury should only be invited to return a verdict on Count 1 alone. He submitted that the prosecution case against King was that he was at the heart of the activity and, if that was proven, this amounted to a conspiracy. There was therefore no need for Count 2. The essence of the criminality was covered by Count 1 and there was no rational basis on which a jury could convict on Count 1 and not Count 2.It was submitted that the purpose of section 45 of the 2015 Act was to criminalise activity that could not easily be prosecuted under existing law and, in particular, the offence of conspiracy. It was argued that the offence is not designed to be a replica of the liability that is covered by the offence of conspiracy, but rather, it was introduced to cover activity that is alternative to, and distinct from, such liability.

Counsel for the prosecution respondedthat it was possible for the jury to return different verdicts on each count and the inclusion of Count 2 was potentially important for the purposes of sentencing. It was accepted that there was “considerable overlap” between the criminality alleged by Counts 1 and 2 but it was submitted that it was appropriate that both counts should be left to the jury.

The Judge decidedthat both counts should remain on the indictment. There was an important distinction: there was a lesser mens rea on Count 2. There was also the element of whether there was an organised crime group, which the jury would have to decide on Count 2. Nevertheless, the judge said that: “The reality is in my judgement … that the factual scenario of bringing in the immigrants is the same for each, and Count 2 should be an alternative in those circumstances to Count 1”.

The Judge directed the jury in those terms in her summing up at the first trial: see in particular page 7E. She told the jury:

After the jury had been in retirement they passed a note to the Judge which made it clear that they were having difficulty in reaching agreement on Count 1 in respect of Dunn. After discussing the matter with counsel, the Judge discharged the jury from reaching a verdict on Count 1 and invited them to retire to consider Count 2: see page 94B-C. The jury then returned to court five minutes later and a verdict was taken: it was a unanimous verdict of guilty.

At the retrial of Dunn there was now only one relevant count, which had been Count 1 at the first trial. The Judge was invited to stay the prosecution on the ground that it was an abuse of process. She refused that application. Her reasons for doing so were set out in a written ruling dated 16 October 2019, which recorded the arguments advanced on behalf of Dunn as follows:

The jury should not have been invited to consider Count 2 in the circumstances which arose, namely their inability to reach a verdict of at least 10 in respect of Count 1 and/or

The prosecution should not be permitted to retry Mr Dunn on Count 1 because he has been convicted of Count 2, on the basis relied on in (i) above – namely, it is founded on the same facts and because to permit a retrial of the more serious charge would offend not just the public perception of justice but should offend the court’s sense of justice and propriety amounting to an abuse of the process by reason of convicting him twice of a single crime.”

In dismissing each of those arguments, she stated:

On behalf of Dunn it is submitted by Mr FitzGerald that the Judge should have allowed the application to stay Count 1 as an abuse of process, since the Appellant had been convicted of the “lesser alternative” and there was a “single wrong”.

Mr FitzGerald submits that, at the first trial, the prosecution case was that all the accused were guilty of both counts; Count 2 was not a lesser alternative. After submissions that Count 2 should be removed from the indictment because the only material difference was the mental element and this was minimal, the Judge ruled that Count 2 would be left to the jury as a lesser alternative in the event that they found the accused not guilty of Count 1. Mr FitzGerald submits that there are two possibilities:

If Counts 1 and 2 are significantly different, then it is an abuse of process to prosecute the more serious offence, the jury having convicted the Appellant of the less serious offence. Whilst they are not statutory alternatives, they are genuine alternatives.

If Counts 1 and 2 are so similar that any difference is de minimis, the two counts ought not to have been on the indictment together.

On behalf of the Respondent Ms Harden-Frost observes that, in the first trial, it was accepted that there was an overlap between the two counts but submits that the Crown has a wide discretion when drafting an indictment; no application had been made that the indictment was bad for duplicity, nor was there an application to stay on the grounds of abuse of process; and it had been conceded by the defence that the actusreus and mens rea were different. Count 2 was an important aggravating factor for the purposes of sentencing and there was no prejudice to any of the defendants. She also observes that the jury in the second trial were not told about the earlier conviction on Count 2.

She further submits that:

At the first trial the counts were left to the jury as forensic alternatives only, not as legal alternatives.

Counts 1 and 2 “cover similar ground but are different offences with significantly different mental elements to them”; the difference in the statutory maximum penalties illustrates the distinction.

There can be no question in the present case of there being any plea in bar (such as autrefois convict) which would have prevented the second trial against Dunn. The two offences with which he was charged are clearly not the same as a matter of law. The fact that he had been convicted on Count 2 did not mean that he could not be tried later on Count 1.

Secondly, the principle in R v Elrington (1861) 1 B & S 688 did not apply in this case either. That principle was explained by Hughes LJ in R v Bayode[2013] EWCA Crim 356, at paras. 22-23:

As in the case of Bayode, so here, the Elrington principle does not assist the Appellant because this was not a case of the Crown first preferring a minor charge and then later a major charge. The major charge had been preferred from the outset.

Having cleared those principles out of the way, we can turn to the main basis on which Mr FitzGerald contends that it was an abuse of process for the Appellant to be tried on Count 1 when he had already been convicted on Count 2: this is that they were alternative charges. This was the basis for this Court’s decision in Bayode itself.

In that case the defendant was tried for murder but the jury could not agree on that charge. An alternative count of manslaughter was then added to the indictment. The jury were discharged from having to give a verdict on the murder charge and returned a verdict of guilty on the charge of manslaughter. Initially the trial judge was of the view that there was nothing to prevent the prosecution from then bringing a charge of murder but later, having had the opportunity to consider the matter in more detail, the judge ruled that it would be an abuse of process to do so. The Crown then appealed against that termination ruling but that appeal was dismissed by this Court. As Hughes LJ explained, at para. 33:

It is clear from that passage that, when Hughes LJ spoke of alternative charges, he was referring to “properly mutually exclusive alternatives.” The reason why the offence of manslaughter is properly to be regarded as a true alternative to murder is that, as a matter of law, the elements of the two offences (dealing here only with unlawful act manslaughter and leaving aside gross negligence manslaughter) are identical save for the different mental element which is required. The actus reus in a case of unlawful act manslaughter is identical to the actus reus for murder.

The concept of true alternatives of that type was distinguished by this Court from “forensic alternatives” in R v Akhtar[2015] EWCA Crim 176; [2015] 1 WLR 3046. In that case the defendant was charged with having an article, namely a petrol bomb, with intent to destroy or damage property, contrary to section 3 of the Criminal Damage Act 1971. He was also charged with possession of an offensive weapon, namely a petrol bomb, contrary to section 1(1) of the Prevention of Crime Act 1953. The jury convicted him on the second count but could not agree on the first count. The defendant was convicted at his retrial on the first count. He appealed on grounds which included that the second trial should not have been permitted because he had already been convicted at the first trial of one of two counts which were alternatives. This Court rejected that argument in a judgment given by Sir Brian Leveson P. The Court distinguished the case of Bayode in the following terms at paras. 34-35:

The Court concluded on this issue, at para. 42, that:

In the present case, it is clear that the two counts were not true alternatives. As a matter of law they have distinct elements. First, the mental element (or mens rea) is different. In the case of an offence under section 45 of the 2015 Act, what is required is only a “reasonable suspicion”. Mr FitzGerald sought to persuade us that the distinction between this and a belief was so slight as to be de minimis. We do not accept that submission. It is well established in law that there is a crucial distinction between a belief and a mere suspicion. For example, in a civil case concerning an action for wrongful arrest by the police, Buckley v Chief Constable of Thames Valley [2009] EWCA Civ 365, Hughes LJ said, at para. 6:

Secondly, the other elements of the two offences charged in this case are different as a matter of law. Under Count 1 there had to be a conspiracy, in other words an agreement, and the jury had to be sure that the particular defendant whose case they were considering was a party to that conspiracy. In a conspiracy the offence consists of the agreement itself and nothing more need have been done to implement the agreement. In contrast, the charge in Count 2 did not require proof that the Appellant was a party to any agreement. It required only that he took some part in the activities of an organised criminal group.

Furthermore, it is clear that the jury at the first trial were sure that the Defendant had done something to make him guilty of Count 2 but could not agree on Count 1. Before this Court Mr FitzGerald suggested that the only explanation for that must be that the jury were acting perversely by being unable to agree on Count 1. We do not accept that submission. The Appellant faces a high hurdle in making that submission. It could only be accepted if there was no reasonable basis on which the jury’s verdict could be explained. As Ms Harden-Frost explained to this Court, having been trial counsel for the prosecution, it is not necessary to conclude that there was no reasonable basis for the jury’s inability to agree on Count 1. At the trial it was common ground that whoever controlled two “dirty phones” was a party to the conspiracy. Dunn’s defence was that he did not have possession of those phones. Given the evidence before the jury at the first trial, it is possible that the jury were not agreed that Dunn had possession of the two “dirty phones”, whilst being satisfied, on

Finally in this context, the Judge was not only entitled, but was correct, to say that the difference between the two counts was a significant one because Parliament has decided that the maximum sentence for each offence shall be different. The maximum sentence on Count 2 is five years’ custody, whereas the maximum sentence on Count 1 is 14 years.

For those reasons, we have reached the conclusion that this was not a case of true alternatives but rather was a case of forensic alternatives. As in Akhtar, the legal position is that the prosecution were not prevented from pursuing Count 1 at a retrial on the ground that it was an abuse of process. As the Judge recognised, any potential injustice caused by the two convictions could be avoided by sentencing accordingly. We note that, in the event, she imposed no separate penalty on Count 2.

For the reasons we have given the appeal against conviction by Dunn is dismissed.

Dunn was born on 8 August 1981 and was aged 37 at the date of his conviction. He had 15 convictions for 46 offences, spanning the period from 2002 to 2019. King was born on 8 January 1981 and was aged 38 at the date of his conviction. He had 16 convictions for 30 offences, spanning the period from 1997 to 2014.

In passing sentence the Judge said that this was a carefully planned, sophisticated conspiracy involving reconnaissance work and a practice run. It was not simply a trip across the Channel and back. The telephone evidence made clear that Dunn and King had devised the plan and organised its execution and were in contact with the other conspirators. The culpability was greater for King, who recruited Davis as the RHIB driver, and Dunn, who recruited Griffin to transport the young men once they were in the UK.

They had ruthlessly placed the lives of the four young men in jeopardy; the RHIB was in poor condition, without any safety equipment either for navigation or in the event of an emergency, and Davis was unqualified. The passengers had no lifejackets and wore unsuitable clothing. Davis wore a lifejacket that would have given him 23 hours survival time. They showed no regard for these strangers and they were motivated by financial gain. The uncontested evidence of DI McSheffrey was of a recognised prevalence of this type of offence on the Kent coast and it was significantly higher than in other areas of the country, such that it could be described as exceptional. The offences therefore warranted deterrent sentences.

In mitigation, the Judge recognised that the duration of the conspiracy was short and did not involve the trafficking of these four young men. Each defendant had personal mitigation and had no similar previous convictions.

Finally, the Judge was satisfied, having heard evidence through the trial, that Serious Crime Prevention Orders were necessary to protect the public.

The maximum sentence for an offence under section 25 of the Immigration Act 1971 was 7 years custody until 13 February 2000, when it was increased to 10 years. It was increased again from 9 February 2003 to the current maximum of 14 years. The fact that Parliament has thought fit to double the maximum sentence must be borne in mind when considering earlier decisions of this Court, in particular R v Le and Sark [1999] 1 Cr App R (S) 422, which was decided at a time when the maximum sentence was 7 years. Nevertheless, it is common ground that the guiding principles which were set out in that case by Lord Bingham of Cornhill CJ, at page 425, remain relevant. It is also common ground that no guidelines for offences of this type have been issued by the Sentencing Council. Finally, we should mention that Mr

By reference to the various factors which have been mentioned in the authorities as potentially aggravating offences of this kind, Mr FitzGerald emphasised the following points. First, this was an isolated offence, which was not refuted. Secondly, its duration was relatively short, lasting 6 days. Thirdly, there was no exploitation or pressure placed on others. Fourthly, Dunn does not have previous convictions for similar offences. While Mr FitzGerald accepts that this was a commercial enterprise, not a humanitarian one, and accepts that the immigrants concerned were strangers to the Applicant rather than family members, he submits that it was not a large scale or particularly sophisticated enterprise. For example, no passports were issued to the four Vietnamese migrants concerned. Finally, Mr FitzGerald emphasises the personal mitigation which is available to the Applicant, in particular that his daughter has ADHD; and that his son has autism and has found it particularly difficult to be separated from his father.

Although it is possible to envisage offences of this kind which would be more serious than the present one, we bear in mind that the sentence passed by the Judge after trial was nine years’ imprisonment, which is well below the statutory maximum of 14 years. We are not persuaded that the sentence was either wrong in principle or manifestly excessive or even arguably so. We agree with the Single Judge that leave to appeal should be refused for the reasons which he gave.

On behalf of King, Mr Scobie made similar submissions to those of Mr FitzGerald, which he adopted. We have taken into account everything that can be said on behalf of King, including information which has been provided to this Court since the refusal of leave by the Single Judge, as to how well he has done in prison. Nevertheless, we are not persuaded that the sentence of nine years imposed on him was either wrong in principle or manifestly excessive or even arguably so.

Mr Scobie also complains about the terms of the Serious Crime Prevention Order (“SCPO”).

An SCPO may be imposed under section 19 of the Serious Crime Act 2007 where the court has reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime in England and Wales. It may contain such terms as the court considers appropriate for that purpose.

Mr Scobie complains about the impact of the SCPO on King after his release from prison because the reference to “any water going vessel” is too wide. He submits that it should be restricted to “sea water going vessel” in view of the circumstances of this case. He submits that the work which King does on internal waters is 24 hours a day; and can be last minute, so that advance registration of vessels may well not be practicable.

We are not persuaded by that submission. As Ms Harden-Frost has submitted, the index offence involved King providing a boat for use in a criminal conspiracy. The circumstances of this case illustrate how a boat that is wholly unsuitable for a Channel crossing may nevertheless come to be used to smuggle illegal immigrants into this country. There is plainly a risk that the Applicant might be tempted to offer the use of a boat that is designed for internal waters for such an operation in the future. In any event, the Judge was entitled to conclude that it was appropriate to include any water going vessel to be registered with the police in order to protect the public from his involvement in serious crime. It is not arguable that the scope of the Order was disproportionate.

For those reasons, as well as those given by the Single Judge, we refuse the application for leave to appeal against sentence.