Case No: 2007802315/D2 
Neutral Citation Number: [2009] EWCA Crim 2918
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 
 
Date: Monday, 14th December 2009
 
B e f o r e:

LORD JUSTICE MOSES

MR JUSTICE IRWIN 
 
MR JUSTICE EDWARDS‑STUART 
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R E G I N A 

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Mr R Wormald appeared on behalf of the Appellant 
Mr M Sutherland Williams & Ms C Hadfield appeared on behalf of the Crown 
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J U D G M E N T 

1.	LORD JUSTICE MOSES:  This appeal raises the question of the impact upon a very substantial prison sentence of a period which the appellant was ordered to serve in default of paying the amount he was ordered to pay, pursuant to a confiscation order, a period of 10 years' imprisonment.  
2.	The appeal raises the question as to what extent it is right for the court to take into account the totality of the period of imprisonment passed by way of punishment and the period in default has been ordered to serve, should he not meet the confiscation order, pursuant to the Drug Trafficking Act of  1994.  
3.	The appellant is now aged 64.  That age is relevant to the questions we have to consider as to the propriety of a lengthy sentence on one of that age, who suffers from ill‑health.  
4.	He was convicted, following a six week trial before His Honour Judge Zeidman QC, at Snaresbrook Crown Court on 13th July 2005.  He had attempted to import a huge quantity of cocaine, 693 kilos, the equivalent of 526 kilos at 100 per cent purity.  He also pleaded guilty in the presence of the jury of assisting the commission of an offence punishable under a corresponding law, namely exporting the cocaine from Ghana.  He was sentenced two days later, on 15th July 2005, to 28 years' imprisonment for the fraudulent attempt at evasion of the prohibition on importation with a concurrent period for the other offence of 11 years' imprisonment.
5.	Confiscation proceedings took place in March 2007 and on 20th March 2007 the judge ruled that this appellant had benefited in the sum of £2.34 million.  The confiscation order was made that he should pay that sum, pursuant to the Drug Trafficking Act 1994, within 15 months and he was ordered to serve 10 years' imprisonment in default of payment, consecutive to that substantive offence.
6.	The facts are only relevant to demonstrate the gravity of this importation.  It is apparent that the cocaine, which weighed in its impure state 693.9 kilos was hidden in palletised drums of molasses.  The original molasses had been bought by the appellant under an assumed name, posing as the manager of a molasses firm.  There was clear evidence of three previous dummy runs.
7.	The judge, who had had the best possible opportunity of observing this appellant during the six week trial, regarded him as the prime mover in the operation, and rightly described the crime as "a major sophisticated attempt to bring a huge quantity of cocaine into the United Kingdom".  He spoke authoritatively and correctly of the damage such an importation, had it been successful, would do to the lives of hundreds, possibly thousands of people in this country.  The defendant was caught only by the good fortune of a "tip off".
8.	The question that arises in relation to the sentence of  28 years is the extent to which the sentence ordered in default of 10 years justifies a decrease in what would otherwise be a sentence fully merited by the facts of this case.  In submissions of particular cogency, advanced with fairness and force by Mr Wormald, he draws our attention to a conflict in previous authority as to the question of whether the totality of the terms of imprisonment imposed is a principle which the judge should bear in mind when either sentencing for the offence or when ordering a period of default to be served.
9.	In R v Cukovic [1996] 1 Cr App R(S) 131, at page 135, this court, in the judgment of Keene J (as he then was), took the view that in the light of a period of default the totality of the two sentences should be borne in mind and reduced a sentence of 23 years by a period of 2 years, having regard to the total effect of the sentence.  From the report it does not appear that the question of the propriety of taking both periods of imprisonment into account was the subject matter of any lengthy or detailed argument.
10.	In R v Smith [2009] EWCA Crim 344, this court, in the judgment of Thomas LJ, took the view that it was wrong in principle to take into account a sentence of imprisonment passed prior to the order of the term to be served in default, when fixing the period of default.  The court pointed out that although that originally had been the argument, it was not pursued as: 
"...it was accepted that it was wrong in principle to take into account in fixing the default term the previous sentence.  We consider that that concession was rightly made, as the purpose of the sentence of imprisonment was to punish him for his drug dealing; the purpose of the sentence for confiscation was the purpose we have set out, namely to ensure compliance with the order of confiscation." 
11.	There is ample authority for the proposition that the purpose of ordering a sentence of imprisonment in default is designed to ensure, so far as possible, that the defendant found to have realisable assets in the amount of the confiscation ordered, should pay that amount and should obtain no advantage by refusing to do so.  That authority stems not only from previous cases but also from the statutory provisions themselves.
12.	It is clear from section 139 of the Powers of Criminal Courts (Sentencing) Act 2000 that where a confiscation order is made, an obligation is imposed upon the Crown Court to fix a term of imprisonment in default (see section 139(2)).  It is true that the structure of the Drug Trafficking Act 1994 suggests that the approach of the Crown Court should, in the first instance be to identify both the benefit from drug trafficking and the realisable assets before sentence (see section 2(4)).  Nevertheless section 3 makes it clear that the court has the power to postpone any order made under section 2.  Nowadays, as questions of identifying both benefit and realisable assets become more and more complicated, generally the process of determining the amount of the confiscation order will take place after and often, as in the instant case, long after the process of sentencing.  It would be unfair and harsh on any defendant to wait until that process of confiscation takes place before he knows what period of imprisonment will be imposed by way of punishment.
13.	Mr Wormald argues, nonetheless, that no one could expect to get in total a sentence of something like 38 years for an offence such as this.  He contended that the failure to pay the sum ordered by way of confiscation was equivalent to cheating the Revenue or some other criminal offence and were two criminal offences to be committed, one on the back of the offence of importation, no one would expect in totality a sentence such as 38 years.  The principle of totality, whereby sentences which may be justified for individual offences may nevertheless lead to an excessive total, should equally apply in a case such as this.
14.	We do not agree.  The authority which we have already referred to in Smith itself, the statutory provisions and other cases summarised by this court in R v Pigott [2009] EWCA Crim 2292, all demonstrate that the purpose of the period in default is designed to ensure that nothing is to be gained by the defendant if he fails to comply with the order (see for example R v Szrajber (1994) 15 Cr App R(S) 821 and R v French (1996) 16 Cr App R(S) 8 and 841).
15.	The fundamental objection to allowing a defendant to say that in the light of his sentence he should suffer a lesser period of default, is that it remains his own choice, in his own hands as to whether he serves the period of imprisonment in default or not.  It must always be recalled that no period by way of default will be ordered unless and until the judge has found, as a fact, that the defendant has realisable assets sufficient to meet the order of confiscation.  Once that has been found as a fact, there remains no reason, save his own choice and unwillingness to divest himself of the proceeds of crime, why the defendant should not pay it.  There is, therefore, no reason why, if he refuses to pay, he should not serve the period of imprisonment in default, in addition to the sentence by way of punishment. The period in default is a quite distinct and separate justification.
16.	The analogy between a series of offences, the totality of which may prove excessive is false.  No such comparison can be drawn. Indeed, as was pointed out by Irwin J arguendo, it would undermine the purpose of ordering a period of imprisonment to be served by way of default, to allow a lengthy period of imprisonment by way of punishment to affect the period in default.
17.	There remains the question of whether the period by way of default of 10 years was appropriate in this case.  Again, in excellent submissions, Mr Wormald points out that there are many cases where far greater sums are ordered by way of confiscation than the sum here of £2.34 million odd.  That is true.  But having regard to the justification for the default order, namely to encourage the defendant to pay up, it must be borne in mind that the judge, particularly a judge sitting through 6 weeks of a trial, is in the best possible position to determine what period of imprisonment is most likely to persuade the defendant to pay over the sums of money it has been found he can realise.
18.	The judge took the view that 10 years was the appropriate period, notwithstanding that he was prepared to listen to arguments based upon the decision that we have found to be wrong, namely Cukovic.  There is no basis upon which we should interfere with that appreciation of the trial judge.
19.	There was one disadvantage, however, under which the judge laboured.  During the course of his clear sentencing remarks, the judge expressed sympathy for the fact that this defendant suffered, as the judge accepted, from multiple sclerosis.  He was just under 60.  He recorded that he had suffered a stroke in 1997.  Unfortunately, as the judge recalled, there were no medical reports before him and both the judge and his counsel were forced to accept that the question of his health was a matter for the prison authorities.
20.	That, so far as it goes is, of course, correct.  Where questions of life expectancy, or risks of deterioration arise, that will be, as the authorities show, very much a matter for the administrative authorities (see for example R v Main and Johnson [1997] 2 Cr App R(S) 363.) However, that does not mean to say that a court in sentencing must ignore the impact on a man of a certain age of the condition of his health.  It is beyond argument that a prisoner suffering from ill‑health may well suffer the impact of a significant sentence to a far greater extent than will a prisoner of the same age, who enjoys good health.  In this case it is plain from medical reports now available to us, which were not available to the judge, that this lengthy sentence will have a substantial impact, over and above the impact it would have on a prisoner in good health, as a result of the multiple sclerosis under which he labours.  We have the advantage of a full report from Dr Michael, a consultant neurologist, dated 4th December 2009, and a most helpful report from a specialist nurse in multiple sclerosis, dated the same date.  The nurse's report shows how his mobility has deteriorated.  He is unable to pursue his previous pastimes of tennis or using a rowing machine.  He suffers from dizziness, reduced dexterity and weakness in his upper limbs, a deterioration in cognition, fatigue, which he demonstrates by his difficulty in concentration, impaired vision, frequency of micturition and pain.  All of those symptoms are recognised by the consultant neurologist, who speaks of a significant reduction in life expectancy as a result of the condition.
21.	In those circumstances, we accept Mr Wormald's submission as to the impact that the 28‑year sentence of imprisonment will have upon this man and we shall take into account that impact in reducing the sentence.
22.	The question still remains, however, as to whether the sentence of 28 years for this offence was appropriate.  We say unhesitatingly it was.  The judge gave a careful description, fully justified by the facts of the extent to which this man had pursued a criminal career in the past, serving previously a sentence for fraud of 8 years and his experience in pursuing this sophisticated attempt to bring the massive quantity of cocaine into this country.
23.	Mr Wormald draws our attention to the consultation paper on sentencing for drug offences dated 22nd April 2009, in which it is clear that the Panel put forward for consultation a considerable reduction, even in the case of a leading role, in respect of importation and exportation which indicates international commercial operation.  They recommended for consultation, we underline, a starting point  of 12 years custody, having regard, be it noted, to the expectation that there will be proceedings and possibly a sentence in default in respect of asset recovery.  We emphasise that these are comments made for consultation.  The relationship between sentences in default and sentences by way of punishment was recognised by the Panel to be a difficult one on which it sought assistance by way of consultation.  In our view, that consultation paper provides no basis for a reduction of this sentence of 28 years' imprisonment, which absent that consultation paper, would be a sentence in the range that might well be expected in respect of an offence such as this.
24.	It provides, in our view, no basis for any reduction.  But, as we have indicated, the state of this man's health does not, through no fault of his own, appear to have weighed with the judge in the sense of considering how his life in prison will be made more severe as a result of his medical condition.
25.	We do take into account both those helpful reports, by allowing the appeal against the sentence of 28 years' imprisonment, to the limited extent of reducing it by 3 years and making it a sentence of 25 years' imprisonment.
26.	We turn next to the question of confiscation.  It was not clear to us as to the extent to which the question of the orders made by way of confiscation were the subject matter of leave to appeal, or were merely the subject matter of an application, but we do not think it matters, since it seems to us that the question was fully argued, just as if leave to appeal had been given.
27.	There was no dispute as to the figure for the benefit which had been arrived at.  The total amount was £2.34 million odd.  It was made up by valuing the drugs at 80 per cent purity, at £1.9 million and various other items of expenditure, either through the bank, expenses, gifts and motorcars with some amounts for cash, wine, furniture and a gym.  Property, by reason of disputed interests, was left out of account.
28.	At the time the judge was considering the amount of the benefit, he believed that he should adopt the approach that the drugs themselves had no market value.  That theory expressed in cases such as R v Ajbade [2006] EWCA Crim 368 and R v Hussain [2006] EWCA Crim 621, has now been exploded by their Lordship's House in R v Islam [2009] UKHL 30 and by the Court of Appeal in R v Sneath [2009] EWCA 1940.  But it is relevant in connection with the question of realisable assets to point out that the judge found that the defendant was responsible for purchasing the drugs.  There was a suggestion in which Mr Wormald persists before us that because others were involved, the judge himself should have concluded that he only bore a proportion of the expense.  As the House of Lords concluded in R v May [2008] UKHL 28 at paragraph 38, it was open to the judge to reach the conclusion that whether others were also responsible for the purchase, the expenditure could be wholly laid at his door.
29.	The importance of the investigation into the confiscation proceedings is the light that it casts on this appellant's way of life and in particular the light it casts on the question as to whether he was a reliable source of information or evidence, as to the extent of his realisable assets.  It is plain from the amount of drugs which the appellant sought to import that arrangements must have been made as to how they were to be paid for, how they were to be distributed and how the profits were to be shared.  To this day the appellant remains silent on those all important features of a drug importation.  It underlines how no reliance could be placed upon anything he says about his ability to meet the amount of benefit which was identified by the judge.  There remained no reliable source as to the extent of his assets.
30.	It is small wonder therefore that the judge was left with the contentions advanced by the Crown, in their statement for the purposes of the Drug Trafficking Act 1994, in relation to the question as to whether his assets were hidden.  The Crown was able to point out that he had, throughout his history of criminality, used a number of false identities, that he owned substantial property or had owned in France and that he had been in a position to either give substantial sums, at least to his daughter, Laura Bond, or to invest using her name.  An example was given of almost monthly dealings of substantial sums, through a particular stockbroker.  That evidence itself demonstrated an ability to disguise the name of the true beneficial owner of assets and cash.  
31.	Quite apart from that evidence, there was substantial evidence of the defendant boasting, in circumstances where he could have no justification or reason to boast, of the extent of his assets.  To Customs officers, on 30th June 2004, he had stated that he had been a multi millionaire for some 20 years, that he ran a gourmet cookery school, that he imported and exported cars, had property investments and operated both as a private individual and through a company in Luxembourg and Liechtenstein which he declined to name.  All of this was a mere puff he told the judge.  Further, when meeting officers of the Inland Revenue in March 1996, he had told them that he had stolen some £2 million in 1976 from a London airport and spoke of substantial funds in foreign bank accounts, both then and during the course of other interviews some times referring to £1.2 million, on another occasion in excess of £2 million.
32.	The judge scrupulously avoided other rumours about him, reported in a book called "The Untouchables" by the Guardian journalists Michael Gillard and Lori Flynn but was driven to the conclusion that the defendant had simply failed to establish, on the balance of probabilities, that he did not have the assets to meet the sum identified by way of benefit.
33.	Mr Wormald contended that there was no evidence that he had ever hidden assets and that having spent some £1.9 million on the cocaine which he did not successfully import, it was obvious that he would have nothing like enough money left, having lost that sum, to meet the sum identified by way of benefit.  We do not agree.  We repeat, this defendant, from his own decision to contest this case in the way he sought to contest it, deprived himself of any opportunity of providing reliable evidence as to the assets that he had accumulated during his career.  In those circumstances the judge was fully justified in concluding that he had not satisfied the burden, which the statute places upon him, of demonstrating that the amount of realisable assets were less than the amount of the benefit.  Thus it was his own fault and his own failure to prove that which led to the order that was made.
34.	In those circumstances, we reject Mr Wormald's submission that the judge was not justified in rejecting the appellant's claim that his realisable assets were less than the amount of £2.342 million.  We reject that ground, whether it be by way of rejecting the appeal or the application, it not being clear which, but were it only an application, we would have refused leave on that ground.
35.	The third ground is plainly merely an application.  Between the time of the sentence and the time of the confiscation proceedings, there was considerable delay, as the prosecution sought evidence of the amount of benefit and as the defendant sought to meet that claim.  The trial had lasted six weeks.  As is by no means uncommon, after a trial of that length the trial judge was invited to a case dinner, and accepted.  That dinner took place.  All counsel involved ‑‑ Mr Wormald was not then instructed ‑‑ leading counsel for the defence and junior counsel and prosecuting counsel and his junior attended.  The defendant apparently learnt of that dinner and contends that no such meeting should have taken place and that the reasonable observer, learning that such a dinner had taken place, might reach the view that there was a real possibility of bias in the confiscation proceedings, since the judge might have learned, through defence counsel who had previously acted for him in other litigation matters adverse to the defendant.  We reject this ground.  We do not think it arguable.  Dinners after a lengthy and complicated case are common and part of the necessary social intercourse between Bar and Bench that ensures that there is goodwill between both, a goodwill and we say trust, essential for the proper running of the criminal justice system.
36.	The safeguard for this defendant, as any reasonable observer would well know, is that defence counsel were present throughout and it is, in our view, inconceivable and not arguable to the contrary that they would have allowed anything to happen which might have had an adverse impact upon the interests of their client, whom they were in the instant case continuing to represent.  The safeguard for this applicant lay in the presence of both those counsel.  We should add, although it is not strictly relevant, that in the subsequent hearing it is plain that the judge conducted the hearing with immaculate fairness, rejecting from time to time the points advanced by the prosecution.  No criticism whatever has been made of the judge, either at the trial or subsequently, in relation to the manner in which he conducted the hearing or reached his conclusions.  We emphasise, however, that is not ultimately the dispositive point in relation to this application.  It is merely that given the context of dinners such as these, that there is nothing which a reasonable, fair‑minded observer, familiar with that practice, could base a fear that there was a real possibility of bias subsequently.  In those circumstances we dismiss the application based on that third ground.  
37.	For the reasons we have given, we dismiss the appeal or the application in relation to confiscation proceedings, but we allow the sentence appeal to the limited extent of  quashing the sentence of 28 years on the first count and substituting for it a period of 25 years' imprisonment with any period spent in custody to come off that period.
38.	MR WORMALD:  Thank you my Lord for my Lord's ruling.  In respect of the ground relating to totality, I would like to reflect upon my Lord's ruling.  My client, the appellant, is not here, and I will need to speak him.  I wonder if my Lords are available before the end of term at some point, should it be our wish to seek to certify a question? 
39.	LORD JUSTICE MOSES:  We will be available to the end of term, so you have until next Monday and put in anything in writing, let your opponent have it and then we will consider it.  If you want us to certify a question, you have to draft the question as well.
40.	MR WORMALD:  I know.  Thank you.