Neutral Citation Number: [2009] EWCA Crim 1483
Case No: 200806131 D5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LEWES CROWN COURT
HH JUDGE WADDICOR
T20071002
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17/07/2009
Before :

LORD JUSTICE PILL
MR JUSTICE BURNETT
and
HIS HONOUR JUDGE HALL
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Between :

	CPS (Sussex)	Appellant	
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	Harvinder Singh Mattu	Respondent	

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(Transcript of the Handed Down Judgment of
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Mr M Khamisa QC and Miss  F Davy  (instructed by ABV Solicitors) for the Appellant
Mr D Groome and Mr A Alibhai (instructed by Brighton Trials Unit CPS ) for the Respondent 

Hearing dates : 23 June 2009
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Judgment

Lord Justice Pill : 
1.	This is an appeal by the prosecution, brought with leave of the trial judge, against a decision of Her Honour Judge Waddicor, at Lewes Crown Court on 3 November 2008, to stay counts 1 and 2 as an abuse of process, of an indictment against Harvinder Singh Mattu (“the respondent”).  The appeal is brought under Section 58 of the Criminal Justice Act 2003 (“the 2003 Act”). 
2.	Section 67 of the 2003 Act provides: 
“Reversal of rulings 
The Court of Appeal may not reverse a ruling on an appeal under this Part unless it is satisfied—
(a) that the ruling was wrong in law, 
(b) that the ruling involved an error of law or principle, or 
(c) that the ruling was a ruling that it was not reasonable for the judge to have made.” 
3.	The respondent appeared at Lewes Crown Court on an indictment charging, in count 1, money laundering contrary to section 328(1) of the Proceeds of Crime Act 2002 (“the 2002 Act”), and in count 2, jointly with his partner CB, money laundering contrary to section 327(1) of the 2002 Act.  Very substantial sums of money are alleged to be involved.   
4.	On counts, 3, 5, 6, 7 and 8 (with CB on counts 3, 5 and 6) the respondent is charged with obtaining a money transfer by deception contrary to section 15A of the Theft Act 1968.  An application to quash counts 3 to 8 of the indictment as an abuse of process failed.  The money laundering charges were based on laundering the proceeds of alleged drug trafficking.  Count 2 did also refer to mortgage fraud but no application was made before the judge to sever the count so as to preserve that part of it.    
5.	The trial at Lewes was the third of a series of trials involving the respondent.  With others, he was arrested on 19 September 2005 for conspiracy to supply a class A drug (cocaine) in an Asda supermarket car park in Crawley.  There was a seizure of drugs on that day.  The respondent and others were tried at Lewes Crown Court (“Lewes 1”) and on 19 September 2006 and all were acquitted.  
6.	Nine days later, on 28 September 2006, the respondent was arrested for suspected money laundering and that led to the charges now under consideration.  On 4 September 2007, he was arrested and later charged with conspiring to supply a class A drug (cocaine).  The respondent was also charged, with others, with associated matters of money laundering.  The case was listed at Wolverhampton Crown Court on 16 April 2008 and the respondent pleaded guilty on 29 April to a single count of conspiracy to supply class A drugs (cocaine) on an agreed basis of plea.  He was sentenced to 7 years imprisonment, a sentence of course still being served.  
7.	Attempts to transfer the Lewes indictment and to resolve all outstanding matters involving the respondent were unsuccessful.  Charges of money laundering against other defendants were left on the file at Wolverhampton.  It was the prosecution decision to proceed with the money laundering charges at Lewes, notwithstanding the agreed basis of plea at Wolverhampton, that led to the application to quash counts 1 and 2 as an abuse of process.  
8.	While also dealing with other matters, the judge in her ruling cited the respondent’s argument that the prosecution “are also trying to point to a greater degree of culpability on the part of this defendant in respect of the matter to which he pleaded guilty in Wolverhampton earlier this year”.  Having referred also to the submissions of the prosecution, the judge concluded: 
“It would be, on the balance of probabilities, unfair for this defendant to be tried in respect of any matters upon which reliance will be placed on what I might call the ‘Wolverhampton matters’, that is, the drug conspiracy matters that were before the Wolverhampton Crown Court.”
The judge added: 
“I consider that on the balance of probabilities it would be unfair to the defendant, both for reasons of disparity and inconsistency, and, in my judgment, the shifting approach from the prosecution, to proceed with [counts 1 and 2].”
9.	It was also submitted on the respondent’s behalf that the prosecution, in pique at the acquittals in Lewes 1, were attempting to use evidence which had been available to them at the time of that trial to have another go, as the judge put it, at the respondent.  Confiscation proceedings were in any event available to the prosecution following the plea at Wolverhampton.  It is accepted that the plea there was tendered on the clear understanding that it would not prejudice the prosecution’s position in the contemplated confiscation proceedings.    
10.	As recorded by the judge, an attempt was made, in which Mr Dean QC, prosecuting counsel at Wolverhampton, was involved, to obtain the transfer there of the Lewes matters.  Officers from Sussex were present at the trial at Wolverhampton but, we are told, only to consider evidence and not to coordinate policy with the prosecutors there.  The basis of plea at Wolverhampton was comprehensive and carefully drafted and the prosecution were involved in agreeing its terms for submission to the court.  Moreover, it was put to the judge to seek a Goodyear indication, thereby “hallowing the deal” as it was put by Judge Hall in the course of argument.  The judge considered it a suitable basis for sentence and proceeded to sentence.   
11.	By letter of 3 July 2008, solicitors for the respondent submitted to the prosecution that the decision to proceed with the third trial at Lewes should be reconsidered.  In the letter, points were made which have also been developed by Mr Khamisa QC, in his oral submissions on behalf of the respondent.  The allegations to be made at Lewes include allegations of money laundering as early as February 2003, that is before the evidence and charges of drug dealing were considered at Wolverhampton Crown Court.  Dutch intercept material was to be relied on at Wolverhampton and also forms the basis for the proposed case at Lewes.  Had the Lewes indictment been available to Judge Challinor in Wolverhampton, it would have been left on the file, it was submitted. The prosecution reply to the letter, 3 weeks later, was a bare statement that the prosecution was proceeding.  
12.	The judge referred to the decision of the House of Lords in Horseferry Road Magistrates Court, Ex parte Bennett [1994] 1 AC 42 and to the speeches of Lord Griffiths, at page 62, and Lord Lowry, at pages 76 and 77.  The power of the court is confined to its inherent power to protect itself against the abuse of its own process but: 
“I regard it as essential to the rule of law that the court should not have to make available its process and thereby endorse (on what I am confident will be a very few occasions) unworthy conduct when it is proved against the executive or its agents . . . .” (p77)
13.	In Connelly v Director of Public Prosecutions [1964] AC 1254, Lord Devlin, at page 1353, stated: 
“In my opinion, if the Crown were to be allowed to prosecute as many times as it wanted to do on the same facts, so long as for each prosecution it could find a different offence in law, there would be a grave danger of abuse and of injustice to defendants.”
Having given examples of abuse, Lord Devlin added: 
“Inevitably doubts would be felt about the soundness of the conviction.  That is why every system of justice is bound to insist upon the finality of the judgment arrived at by a due process of law.  It is quite inconsistent with that principle that the Crown should be entitled to re-open again and again what is in effect the same matter.”
14.	In so far as is material, the respondent’s basis of plea at Wolverhampton was: 
“2. Mattu accepts being party to a conspiracy with Cardona and others to import cocaine into the United Kingdom between the 16th July and the 13th September 2005.  However, the concentration of calls in which the conspiracy was discussed took place between the 17th August and the 9th September 2005 and related to two deliveries of drugs that Cardona was expecting.
3. No drugs were actually imported into the United Kingdom as a result of the conspiracy.  Notwithstanding discussions about other amounts, so far as Mattu is concerned any successful importation would have involved in the region of 500 grams of cocaine.  
4. Mattu denies having any knowledge of the extent of Cardona’s dealing with others; the details of the importation of cocaine from Venezuela into Holland; or any direct contact with Cardona’s associates in Holland. 
5. In particular, Mattu denies being party to the conspiracy to import cocaine into Holland by Connor on the 16th August 2005.  This seizure was dealt with separately and involved Cardona and Connor. 
6. Mattu was neither the organiser nor financier of the conspiracy.  His role was, in effect to act as a conduit for the drugs to be passed on to others in the United Kingdom. 
7. Following his arrest on the 19th September 2005, and remand in custody until April 2006, Mattu has committed no further offence.  And at the time of this offence Mattu had no relevant previous convictions; in particular, no conviction for any drug related offences.”
15.	The detailed case summary prepared by the prosecution for use at the proposed Lewes trial describes a conspiracy in the summer of 2005 to import cocaine into the United Kingdom for sale and distribution.  It is alleged that the respondent was concerned with providing and arranging for the finance and was directly involved in importations and concerned in concealing the proceeds of sale.  Heavy reliance was to be placed on telephone intercepts of conversations between Cardona, a Colombian national resident in Amsterdam, and the respondent, in the summer of 2005.  The case summary referred to events of 20 May 2005 and 19 September 2005, occasions on which quantities of cocaine were found, in which the respondent was claimed to be involved.  That material was available to the prosecution when the respondent pleaded guilty to conspiring to supply class A drugs at Wolverhampton in April 2008, though some of it not at the time of Lewes 1.  
16.	The case sought to be put at Lewes is wholly inconsistent with the basis of plea, as set out above.  It was to be alleged that the respondent was concerned with providing and arranging for the financing of very significant quantities (up to 20 kilograms) of cocaine and was directly involved in some actual importations.  It was to be alleged that the respondent was party to the events of 20 May and 19 September 2005.  
17.	Mr Groome, for the prosecution, accepted that Lewes count 1 could have been placed on the Wolverhampton indictment.  The money laundering charged was consequent upon the drug proceeds of drug offending charged at Wolverhampton.  It is, however, for this court to do justice, it was submitted, and it would be unjust for the respondent not to be tried for the very substantial gains he is alleged to have made from drug trafficking.  Mr Groome submitted that an agreement, the basis of plea, reached by the prosecution in one case does not bind it for other cases.  It had no function beyond the proceedings in which it was tendered.  Counsel at Wolverhampton was concerned only with the charges on the indictment there.  Money laundering is a separate offence which the prosecution could charge separately, and was also separate from the proposed confiscation proceedings.  
18.	It was, in our judgment, an abuse of process for the prosecution to attempt to have the drug laundering charges tried at Lewes at a third trial.  Whether it was prosecuted out of pique at the acquittals in the first trial, we need not and do not determine.  The respondent was comprehensively charged at Wolverhampton though, at that stage, the money laundering charges were not before the court.  They could have been; the evidence now sought to be relied on at Lewes was available for the trial at Wolverhampton.  The prosecution in Sussex were fully aware of events in Wolverhampton.  The alleged money laundering plainly arose out of the drug dealing charged at Wolverhampton.  
19.	What seals the issue is the basis of plea.  It is in our judgment an abuse of the process of the court to prosecute at Lewes on a basis strikingly in conflict with the basis on which a plea of guilty had been accepted by the prosecution at Wolverhampton and on the basis of which a 7 year sentence was imposed.  A carefully prepared and detailed basis of plea was agreed between prosecution and defence, and approved by the court, first, for the purpose of giving an indication as to sentence and, secondly, for deciding upon sentence.  It achieved a status which renders a prosecution attempt to go behind it in the blatant way contemplated here an abuse of process.  
20.	It would be fundamentally unfair to the respondent if the court were to permit the prosecution to act in that way.  Had the Lewes indictment been transferred to Wolverhampton, Mr Dean could not possibly have prosecuted it on the basis of the case summary prepared for Lewes.  There will be cases, where, for example, fresh evidence emerges and circumstances change, in which it may be possible for the prosecution to circumvent a basis of plea they have agreed but what the prosecution attempted in this case is not acceptable.  Change of counsel and of venue does not remedy the situation.    
21.	Other issues were ventilated on behalf of the respondent before the trial judge and in this court and the judge made comments on them.  We do not find it necessary, in this judgment, to go beyond the points already considered.  
22.	The judge reached the right conclusion and it is for the reasons now given that the appeal was, at the end of the hearing, dismissed with costs.  
23.	Ordered that, by consent, the reporting restrictions in respect of this appeal be lifted.