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IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT LIVERPOOL HHJ PIERPOINT CP No: 05B40036721 CASE NOS 202403415/B3 7 202402929/B3 [2025] EWCA Crim 1312 |
Royal Courts of Justice
Strand
London
WC2A 2LL
Before:
LORD JUSTICE POPPLEWELL
MR JUSTICE SOOLE
MR JUSTICE BRYAN
REX
V
LEE ANDREW HAYES
_________
NON-COUNSEL APPLICATION
_________
A P P R O V E D J U D G M E N T
MR JUSTICE BRYAN:
On 23 January 2024 in the Crown Court at Liverpool (Her Honour Judge Pierpoint), the applicant pleaded guilty to conspiracy to pervert the course of public justice, contrary to section 1(1) of the Criminal Law Act 1977 (count 1), possessing a controlled drug of class A with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act 1971 (cocaine) (count 2) and being concerned in the supply of a controlled drug, contrary to section 4(3) of the Misuse of Drugs Act 1971 (cocaine) (count 3).
On 12 July 2024, before the same Court, he was sentenced to six years' imprisonment. Notwithstanding how elements of that sentence were pronounced, it is clear from the total sentence passed that the judge passed three years and seven months' imprisonment on count 2 (possession of Class A with intent to supply) and intended to pass a consecutive sentence of two years five months' imprisonment on count 1 (conspiracy to pervert the course of public justice) (albeit expressed as a concurrent sentence), and three years and seven months' imprisonment concurrent on count 3 (being concerned in the supply of a controlled drug), a total sentence of six years' imprisonment, as was correctly recorded and confirmed on the Digital Case System.
A co-accused, Emily O'Shea pleaded guilty and was sentenced to a Suspended Sentence Order of nine months' imprisonment suspended for 12 months with requirements (on count 1) and a further co-accused, Anecy Semley pleaded guilty and was sentenced to a Suspended Sentence Order of eight months' imprisonment (on count 1) and 16 months' imprisonment (on count 2) (consecutive), suspended for two years with requirements.
The applicant renews his applications for an extension of time (251 days in which to apply for leave to appeal against conviction and leave to appeal against conviction) and leave to appeal against sentence (made in time), in each case following refusal by the single judge.
Turning to the facts. On 1 April 2021, police executed a search warrant at Flat 5, 1 Morely Road, Southport (the applicant's address). They seized a quantity of cocaine (valued at approximately £1800 to £3,500), cash (£575), drug paraphernalia (including scales and what was described as a "hydraulic press") and two mobile phones. The applicant, who was present at the time, was arrested for possession with intent to supply a controlled drug of class A (count 2). An examination of the second phone showed slang references for cocaine, exchanges referring to 'Lee' (the applicant's name being Lee Andrew Hayes), links to Snapchat accounts "Scorpion Dark King" and "Head Chef 2020" and bank details being supplied (which were of the applicant's bank account), and an image of the applicant's vehicle, all of which the prosecution said was evidence of the applicant being concerned in the supply of controlled drugs.
In his police interview on 1 April 2021 (with a solicitor present), the applicant said that he had, some two/three weeks prior to his arrest, allowed his flat to be rented for the weekends by a male known to him as 'Cockney Jay' in return for £650. When he (the applicant) returned to the address, he saw that a Yale-type lock had been placed on the door of the room used by Cockney Jay. He said that Cockney Jay must have left the drugs in there. Also, on the day before the arrest another unknown male had been at this address. The unknown male had unlocked the room with a key and had left the second mobile phone. A different version of events (which was not accepted by the prosecution) was to be set out in a subsequent proposed basis of plea.
On 28 July 2022, the applicant pleaded not guilty to counts 2 and 3. In August 2022 (pending his trial), the applicant's solicitors provided the police with a statement and mobile phone camera footage from the co-accused Emily O'Shea of a conversation with Anecy Semley in which Anecy Semley had stated that she had planted some 'gear' at the applicant's flat. The phone footage was investigated by the police. The prosecution said that the video had been staged for the purposes of avoiding the prosecution (count 1). Anecy Semley made admissions to the allegations against her and both co-accused in due course pleaded guilty to the offence of perverting the course of justice.
On 24 August 2023 the applicant was interviewed again. He maintained his denial of any involvement in the supply of drugs and the claim was maintained that the drugs had been planted at his address by Anecy Semley with the assistance of Cockney Jay.
On 23 January 2024 the applicant (represented by counsel Mr Richard Flook) was re-arraigned and he pleaded guilty to the three counts on the indictment.
On 11 March 2024, the co-accused Anecy Semley and Emily O'Shea were sentenced by the Court. The applicant (this time represented by counsel Miss Harriet Tighe) applied to adjourn the hearing. The Court log notes: "The defendant provided further instructions, basis of plea to be submitted, will require adjournment for basis to be considered. Can proceed with co-defts today. List for trial of issue re HAYES 29/04/24, TE 1/2 day, Reserved HHJ Pierpoint".
A basis of plea (which differed in material respects to what the applicant had said in interview) was drafted but not accepted, and on 12 July 2024 the applicant (represented by counsel Mr Kevin Batch) was sentenced on the full facts, the basis of plea having been withdrawn.
The applicant was aged 49 at both conviction and sentence and had 10 convictions for 16 offences, spanning from 28 April 2008 to 9 January 2018. Whilst he had no previous convictions for drug offences, he did have a previous conviction for perverting the course of justice in 2016. He had not previously received an immediate custodial sentence.
No pre-sentence report was before the Court but there was a psychological report. It noted that during his interviews the applicant had disclosed experiencing sexual abuse when he was aged between eight and 14 and he had also been stabbed in the hand by his wife. The report's author summarised the applicant's diagnosis of bipolar disorder, Attention Deficit Hyperactivity Disorder ("ADHD"), Emotionally Unstable Personality Disorder ("EUPD") and Post Traumatic Stress Disorder ("PTSD") which painted a complex clinical picture, and each of these conditions brought its own set of challenges and when they coexist, they can significantly impact on the applicant's mental wellbeing and relationships.
In her sentencing remarks the judge noted that the applicant had pleaded guilty on the day of his trial, following on from his co-accused entering guilty pleas, giving him 10% credit in respect of such pleas. The judge indicated that she had regard to the applicant's physical and mental health difficulties and that she had read the psychological report and various letters of reference which had been submitted and that the sentence would be reduced as a result. The drugs offences fell into category 3 - the applicant's role had been significant, with an operational function, motivated by significant financial gain and he had influence on others in the chain. The starting point was four-and-a-half years' imprisonment. The judge noted that although the applicant had previous convictions, none were related to drugs. The offence of perverting the course of justice was extremely serious and fell within high culpability - it had been conducted over a sustained period and was planned in nature. In relation to harm, it fell towards the top end of Category 2. That offending had caused a substantial delay and impacted on the administration of justice. It was also aggravated by a similar previous conviction. The judge had express regard to totality and passed the sentences that we have already been identified, a total of six years' imprisonment.
The grounds of appeal against conviction and sentence were each drafted by the applicant himself. They have been supplemented by numerous further submissions lodged by the applicant (both before and after the refusals of the single judge) mainly along the same lines, though with some difference in emphasis. We have given careful consideration to all such submissions. The grounds of appeal against conviction can be summarised as follows:
There were issues with disclosure whereby the applicant has mental health issues, relying on a psychological report from Emma-Jayne Williams which was before the court.
Allegations of incompetent counsel - the applicant was badly advised by inexperienced counsel, he did not know what he was pleading guilty to, having expected to go to trial, and he was pressurised into pleading guilty.
He relied on fresh evidence that showed he did not coerce his co-accused as was suggested by the prosecution.
There was no hydraulic press and the sums of €9,600 and £550 cash were returned to the applicant and so it is said the judge was wrong to ascribe his role as a significant role.
The appropriate offence was one of possession of controlled drugs and the drugs did not belong to him but a named third party.
The applicant was unable to participate in the sentencing hearing as he was on mute, and there was no mental health representative to speak on his behalf.
The applicant was misled into pleading guilty and imprisonment had exacerbated his mental health issues.
There is a Respondents' Notice which comprehensively addresses the grounds of appeal, as well as identifying that the evidence against the applicant was compelling, with a significant quantity of cocaine being found at his home address, with drugs paraphernalia including digital scales and snap bags and a mobile telephone from which communications concerning the supply of cocaine were recovered, the applicant's name was referred to (and as noted by the judge) his own bank account details were given.
In the light of the criticisms made of counsel, and following a waiver of privilege, written responses were provided by counsel (Kevin Batch and Richard Flook) which also included a contemporary advice on sentence (in advance of sentence) and advice on appeal against sentence (following sentence). It is quite clear from such material that the applicant was properly and completely represented throughout, was not pressurised into pleading guilty and knew precisely what he was pleading guilty to, including having acknowledged facts in conference consistent with his possession of drugs and involvement in drug supply.
In her very detailed reasons for refusing leave to appeal against conviction, the single judge clearly identified why none of the applicant’s grounds gave rise to any arguable ground of appeal and why the applicant’s convictions were not arguably unsafe. We will not repeat those reasons as the applicant is well aware of the same. For our part, we agree with all that the single judge stated and simply summarise the reasons why we consider the grounds of appeal against conviction are not arguable:
All disclosure requests made on the applicant's behalf were properly responded to before trial and were not pursued further by the defence. No psychiatric evidence was served by the defence (nor would the same have assisted viz trial - there was no suggestion that the applicant was anything other than fit to stand trial). A psychologist's report was before the judge at the time of sentence, and that was properly taken into account.
The criticisms made by the applicant of his legal representatives are, as we have already identified, without foundation.
The prosecution did not put their case on perverting the course of justice as one of coercion, and the issue would not, in any event, have been relevant to the question of guilt or innocence, and the evidence sought to be relied upon does not impact upon the same.
The reasons why the applicant played a significant role in the drugs supply is evidenced by the quantity of drugs found, the drugs paraphernalia (digital scales and snap bags) and the extensive evidence on the mobile phone which had clear links to the applicant as the judge rightly also found and is not dependent on the finding of a hydraulic press or the cash at the premises (which was returned to the applicant). It does, however, appear that there was a press-type device present (image at DCS Item H.24). Whether that is so or not, however, is irrelevant in the context of the other drugs paraphernalia present.
The drugs offences were clearly correctly charged, possession being about knowledge and control as opposed to ownership, and there was ample evidence of involvement in the supply of such drugs.
It is normal for a defendant attending sentence by video link to have their microphone muted, and the applicant would have had pre and post conferences with counsel and was (competently) represented by counsel at the sentencing hearing.
The applicant was not misled into pleading guilty, as is clear from the responses of counsel and the evidence against him on each count was strong.
Notwithstanding the reasons given by the single judge, the applicant chose to renew his grounds of appeal against conviction which was his prerogative. Thereafter the applicant lodged a number of further submissions which in large part reiterated, with varying degrees of emphasis, the existing grounds of appeal. However one point that was given much greater emphasis (though it had been mentioned previously) was a suggestion that the search warrant issued was invalid for a number of alleged reasons including, in particular, because it did not bear a "wet signature", and in consequence it was submitted that all the evidence in relation to the drugs offences that were found at the flat should have been excluded with the consequence that the convictions are unsafe.
No such points were raised at trial and having given careful consideration to all the points made and the terms of the warrant itself (which is before us) we do not consider that any of them bear examination or give rise to any arguable ground of appeal. In particular there is no requirement that there be a "wet signature". What is required is that the search warrant should "include an indication that it has been approved by the court that issued it" (currently see Criminal Procedure Rules 2025 Part 47.27(3)). The search warrant on its face identified that it was issued by Merseyside Magistrates Court and did contain the requisite indication, it expressly records that it was issued by a Justice of the Peace appointed to sit in Merseyside upon consideration of an application by telephone and was "signed on the direction of MR (Justice of the Peace)". We would only add that if, contrary to our views, there was any defect in the search warrant or its execution, it would not have formed any valid ground of appeal in circumstances where the applicant pleaded guilty to the offences with which he was charged.
Other points were also raised in the further submissions following refusal by the single judge. Whilst we have given careful consideration to all of them, we do not consider that any give rise to any arguable ground of appeal against conviction.
In the above circumstances, and even had there been good reason to extend time, which we are satisfied there was not, there is no arguable ground of appeal against conviction and the application for an extension of time and for leave to appeal against conviction are refused.
We turn to the grounds of appeal against sentence in respect of which leave is sought. They are as follows:
There is a disparity of sentence with the co-defendants who received shorter, concurrent sentences which were suspended, whereas the applicant received much longer sentences which were not suspended and were consecutive.
The judge erred in identifying that the applicant had a significant role in the drug offending.
The applicant's microphone was muted at the sentencing hearing, and he could not provide input or confer regarding the sentence or its length.
Insufficient regard was had to the applicant's Bipolar, ADHD, EUPD, PTSD and mental health problems having regard (in particular) to the psychological report that was before judge.
The total sentence passed was manifestly excessive.
We can deal with the renewed application for leave to appeal against sentence shortly. We are satisfied that none of the grounds are arguable for the reasons given by the single judge which we gratefully adopt. We would only add, by way of summary, the following:-
There is no arguable disparity argument. Anecy Semley and Emily O'Shea were both of good character and each had mitigation to advance which was not available to the applicant (age in Ms O'Shea's case, she was 18 at the time of the offending, and caring responsibilities in the case of Ms Semley, she had recently given birth). Neither fell to be sentenced in respect of count 2 and on the basis of the evidence available it was open to the Court to conclude that both the applicant's co-defendants had played a subordinate role to the applicant. The applicant's offending was far more serious. He had numerous previous convictions and these included a previous conviction for perverting the course of justice. It was appropriate that the sentence for that be consecutive.
There was ample evidence justifying the judge's categorisation of the applicant's role as a significant role.
It is normal for a defendant attending sentence by video link to have their microphone muted and the applicant would have had pre and post conferences with counsel, and was (competently) represented by counsel at the sentencing hearing. He accordingly had ample opportunity to provide any appropriate input.
The judge had express, careful and appropriate regard to the applicant's conditions and the psychologists' report in relation to the sentences passed.
The total sentence passed far from being arguably manifestly excessive was just and proportionate to the offending as a whole. For completeness, we note that it was also within the range of likely sentence advised to the applicant by his counsel in advance of sentence.