Neutral Citation Number: [2010] EWCA Crim 1449
Case No: 2007/0219/D5; 2008/1706/D5
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
CROWN COURT SITTING AT WOOLWICH
H.H.J. GRATWICKE
T20067102
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 01/07/2010
Before :

LORD JUSTICE HOOPER
MRS JUSTICE RAFFERTY DBE
and
MRS JUSTICE SLADE DBE
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Between :

	JOSEPH JOHN SIMMS
COLIN  JOHN NUGENT	Appellants	
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	THE CROWN	Respondent	

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Mr. P.C. Upward Q.C. and Mr. K.G. Aylett (instructed by Wiseman Lee) for the appellant Joseph John Simms.
Ms. N. Radford Q.C. and Ms. S. Shotton (instructed by Wiseman Lee) for the appellant Colin John Nugent.
Mr. S. Dyble (instructed by The Treasury Solicitor) for the respondent.

Hearing date: 5th May 2010
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Judgment

Lord Justice Hooper : 
1.	At the conclusion of the hearing on May 5 we announced that the applications for leave to appeal conviction were refused. Joseph Simms (“Simms”) renewed his application for leave to appeal conviction following refusal by Mackay J. Colin Nugent (“Nugent”) applied for an extension of time of 15 months (which we granted) and for leave to appeal conviction, his application being referred to the court by the Registrar. 
2.	We also granted the applications for leave to appeal sentence and reduced the sentences.
3.	We had hoped to give our reasons on May 7, but the pressure of work prevented that. We now give reasons for our conclusions, to which all members of the court have contributed.  
4.	On 27th November 2006  in the Crown Court at Woolwich  (H.H. Judge Gratwicke) both applicants were convicted of Conspiracy to contravene section 170 (2) (b) Customs and Excise Management Act 1979 (in relation to  Class A drugs).  
5.	The particulars of the offence alleged a closed conspiracy between Simms, Nugent, Ward and Mahoney between 14th April and 17th June 2005 to evade the prohibition on importation of 35.62 kilos of heroin.  
6.	Undercover police officers, “Tommy” and “Kevin” acting as International Hauliers infiltrated an alleged plan to import approximately 35.62 kilos of heroin, worth £2 – 3 million on the street, into the UK.  The person responsible for arranging the drugs at the Dutch end was said to be Fuat Akcep, a Turk living in Holland. Tommy pretended to have lorries which travelled to Holland regularly and had a driver Kevin who was willing to become involved.  Between 15th April and 17th June 2005 the accused were kept under observation and meetings with Tommy and Kevin were filmed and conversations recorded. 
7.	Simms’ partner had hired a car which he used for travelling to the Continent on 5th – 10th April.  Simms flew to Rotterdam from Stansted on 10th June and returned on 13th June.  During the evening of 15th June Nugent was filmed at a service area in Holland handing over packages to Kevin the driver. Kevin with his lorry sailed from the Hook to Harwich on 16th June.  The two packages which Kevin had placed in the cab were opened and found to contain drugs. Dummy packages were substituted.  Contrary to what had been discussed before the importation (as to which see below), the drugs were not vacuum packed or sprayed with diesel. 
8.	Kevin was followed to a service area near Chelmsford. Mahoney (who was acquitted) parked at the rear of the lorry and placed the packages from Kevin’s lorry into the boot of his vehicle.   He was then arrested.
9.	The prosecution alleged that Simms was the active organiser and head of the organisation.  A co-accused Ward (who was acquitted on a retrial) was alleged to be his right hand man, and Nugent the liaison between Simms and the supplier.  The importation was said to be a tester; “this one’s a small one”.  
10.	The defendants denied being a party to an agreement to bring controlled drugs into the UK.   Nugent and Simms accepted that they were party to a smuggling enterprise but believed it involved only stolen antiquities from Iraq. Simms made no mention of this in his first defence statement. In a later defence statement he explained that he was involved with Fuat in furniture, antiques and coins. There was no mention of the items having come from Iraq or being stolen. Nugent in his statement referred to his belief that he was importing antiques.
11.	In January and February 2005, prior to the period of the alleged conspiracy, there had been conversations between Fuat, Simms and a man called Harry, who was based in the UK and had had previous dealings with Fuat.  Transcripts of those conversations were introduced into evidence at the trial by one of the defendants. They had been disclosed by the prosecution as unused material because antiques had been discussed and that fact might assist the defence in their case that they thought that they were dealing in antiques. 
12.	The conversations included discussions about antiquities and showed that Harry had been given three antique Macedonian coins by Fuat to have valued.   The transcript disclosed mention, so the prosecution said, of drugs. It read as follows:
Harry:  So how much is selling for, on a K then?
Fuat:  K?
Harry:  Kilo.
Fuat:  Kilo.
John (Simms):  Ten and a half.
Simms maintained in evidence that he was passing on information he had picked up in the course of other conversations.   
13.	The evidence of the undercover officer Tommy was to the effect that having had a telephone conversation with Fuat which contained a reference to the antique coins, he called Simms, introduced himself and they arranged to meet on 15th April 05.   Having talked about coins, Tommy said he had a driver stuck in Belgium.  Simms asked if he was game because he had something out there he had had for a while and it was for Harry’s friend.    Simms said that it was a small package, that it was the first one and that Tommy would get some £15 – £20,000 for his assistance. After he had done two or three trips, Tommy would get £40 – 50,000 every time.   
14.	Simms described how the driver would wear gloves and put socks over his shoes to avoid any DNA evidence linking the driver with the goods. Simms said that the goods would be vacuum packed, because of “these fucking Turks”. Simms said he would give Tommy a new phone, a throw away one. Simms had to meet the driver so as to be able to recognise him.  The jury may have had little difficulty in concluding that this conversation was concerned with drugs and not antiques.
15.	On 3rd May Tommy and Kevin made their way to the Circus Tavern.    Tommy pointed Kevin out to Simms.  Simms said the other chap would be there shortly because he was going to pick up this end as well.    This guy (Nugent) would be loading it on.  Simms arranged to drop a phone off.      
16.	On 8th May Tommy received a call from Simms to the effect that the football was off as the boys could not get a game.   In a later call, Simms said they were all arguing over money out there.    On 17th May Tommy called Simms to enquire if everything was all right.  Simms said there was nothing about at the moment.   
17.	Following this there was a number of phone calls, clearly related to smuggling of drugs, said the prosecution. The defence said they related to the smuggling of antiques. The contents of the calls were such that the jury would have had no difficulty in deciding that they related to drugs and not antiques.   For example Simms was apparently insisting that the goods should be vacuum packed rather than being wrapped in newspaper and Simms was saying how the Turks from whom the goods were coming lost “three out of ten”.  Again reference to the cost of the goods showed, the jury could find, that Simms was talking about drugs and not antiques.
18.	Particular reference was made during the trial and on appeal to calls on 9th June during which Simms said that the deal was off because he had been “cut out” and a later call made by Tommy to Simms the result of which was that Simms agreed to go through with the deal.
19.	There was much cross-examination of Tommy about a number of calls, the contents of which were described in evidence by Tommy but which he had not recorded. Tommy said that he did not carry the recording equipment 24 hours a day.
20.	Kevin gave evidence that he was introduced to Simms at the Circus Tavern with Tommy.  Simms told him that at the time of picking up the goods he must have a pair of socks going over the top of his boots, gloves and a woman’s stocking on his head or a woollen hat.  When Kevin asked what for, Simms replied “because if one bead of your sweat dropped onto one of them fucking boxes, and God forbid if anything did happen, they will put you straight back.”   Kevin asked for it to be vacuum wrapped and Simms confirmed it would be and sprayed with diesel, and made reference to sniffer dogs.  Simms said he could have it boxed up with labels – say five or six small boxes rather than one big one.  Simms said: “I’ve got to be honest with you, like, I’ve been doing it for a year and a thingy”.  
21.	Kevin dealt with his collection of the mobile phone with which he was provided, conversations with Nugent and the hand over of the boxes and discussion regarding disposal of the phone and charger unit which he handed to Nugent.  
22.	The jury heard expert evidence, including evidence from a technical consultant with the police and a defence expert about the covert recordings including the recording and non recording of calls and how the calls would be downloaded from the recorder. 
23.	Both Simms and Nugent (who had a previous conviction for importation of drugs) gave evidence, the effect of which was that they were not involved in drug smuggling and that they had been set up to believe, wrongly, that the goods being imported were antiques.
24.	It is submitted on behalf of Simms by Mr Upward QC (who had not appeared at trial but was leading Mr Aylett who had) in ground 1 that the judge should have stayed the case on the basis that Simms had been entrapped into committing the offence.  If a person admits that he committed an offence but was entrapped into committing it by the police, then a stay of proceedings may well be appropriate.  That was not this case. Simms denied that he had committed the offence with which he was charged, alleging that he had been set up to believe that he was dealing with smuggled antiques.  That was a defence, on the facts of this case, which was eminently one for the jury. There was ample evidence that the applicants knew that they were dealing in drugs and not antiques.
25.	It was further submitted on behalf of Simms that the judge was wrong not to have required the prosecution to disclose material including material relating to Fuat and Harry. The judge accepted a prosecution PII application that the material should not be disclosed. We decided that we should examine in the absence of the applicants unused material relating to the background of the smuggling operation looking, in particular, for any material which could assist the applicants to show that they had been set up in the way which they described. With the assistance of the respondent we examined that material and having done so reached the conclusion which we announced at the time ([20010] EWCA Crim 1133):
With the aid of documents which we have read for the hearing, we have to tell you that there is nothing that came out of the PII hearing which would in any way help you in the presentation of your case.
26.	That disposes of ground 2.
27.	It was contended that the Learned Judge erred in refusing to sign the Defence Letter of Request that would have given access to files in the hands of the authorities in the Netherlands in this investigation particularly the telephone billing evidence and the operation of undercover agents. Mr Upward contended that telephone records of Mr Fuat were needed to examine whether there had been telephone calls between Mr Fuat and Tommy. Such calls between a police officer and a drug dealer may have supported an argument that Mr Simms was being set up. It was said that Mr Simms was prevented from obtaining material to support this argument by being denied access to such records.  In our judgment the judge did not arguably err in refusing to sign the Defence Letter of Request. We see force in the respondent’s submission that the defence request was a device to obtain material which the judge had ruled was not to be disclosed. If the prosecuting authorities were aware of any relevant material it would have been disclosed. As we have said we looked at the material in the absence of the applicants and concluded that there was no relevant material.
28.	We turn to ground 3.  Mr Upward helpfully made it clear that his only real complaint under this ground of appeal was about the way in which the judge dealt with evidence as to whether Simms had booked two Dutchmen of Turkish origin into the West Lodge Park Hotel. Simms gave evidence that he had made such a booking. The Crown sent an officer to the hotel to make inquiries. His information was that two men named Hackan Usan and Alkan were booked as guests at the hotel for 13th April 2005. Those making the bookings were recorded as Stan Woods and ‘TBA’ (to be advised). The officer was cross-examined about a booking made giving a contact name of Stephanie. This was the name of Simms’ girlfriend.  Mr Upward said that the prosecution in submissions had made much of the evidence given by the police officer about the bookings in an attempt to undermine the credibility of Simms. He contended that the learned judge erred in failing to direct the jury regarding the Crown’s failure to prove through rebuttal evidence the serious allegation that Simms was lying in his evidence. 
29.	In our judgment the learned judge dealt with the evidence of the hotel bookings made for two Turkish gentlemen entirely appropriately. In his summing up he observed at Vol XI(d) p42A-D:
As I say, [sic] a lot of evidence in connection with this matter. You may think at the end of the day that it does not really take you that much further, but the reality is that there were two Turks there and one was booked by Stephanie, and that is the name of Mr Simms’ girlfriend. He, Mr Simms, says in his evidence that he had booked them in. Well, where does that really take you? You may think that there are more important issues to concentrate on in the course of this trial, but, of course, it is a matter entirely for you what you make of the evidence.
	
30.	The judge’s comments neutralised any undue reliance placed on the officer’s evidence and cannot be said to have diminished the effect of Simms’ evidence relating to the hotel bookings for the two Turkish gentlemen
31.	Mr Upward contended in ground 5 that the learned judge erred in failing to deal with suggestions adverse to Simms made in counsel’s closing speech on behalf of a co-defendant, Mr Mahoney, when such suggestions had not been put to Simms in cross-examination or been the subject of evidence from Mr Mahoney. This complaint had not been raised by counsel during the summing up although he had made a complaint in relation to another matter (see Transcript Vol IX (a) 57D). We do not consider that it is arguable that the judge erred in failing to comment on counsel’s closing speech.
32.	It was contended in ground 6 that the Crown introduced a telephone evidence schedule too late for the defence properly to test and explain the inferences to be drawn from it. Mr Upward stated that this was a general area of concern. There were no specific matters which he would have wished to raise in respect of the telephone evidence.
33.	Mr Dyble for the prosecution pointed out that the schedule was an agreed document. 
34.	In the absence of any indication of how Simms was prejudiced by the late introduction of the schedule of telephone calls, in our judgment the learned judge did not arguably err in permitting it to be introduced.
35.	Prior to the hearing of the appeal those representing the applicants had obtained further expert evidence about the telephone calls which Tommy had described in evidence.  The purpose of the evidence was to cast doubt on the reliability of the methods used to download recordings from the device used by Tommy to record the conversations and to cast doubt on Tommy’s evidence about other conversations which he had not recorded. The respondent then produced further evidence in rebuttal. Mrs Radford QC for Nugent and Mr Upward submit that the fresh evidence makes the convictions unsafe.
36.	It became clear during the course of the appeal hearing that it had not been suggested in evidence that, so far as the recorded calls were concerned, more was said than was revealed on the transcripts or that the transcripts were inaccurate.  
37.	Tommy gave evidence of the contents of unrecorded calls. There was one call lasting 52 seconds on 9th May between Tommy and Simms, the contents of which Tommy could not recollect. However, the officer in the case gave evidence using a note which he had about the call having spoken to Tommy.  There were no significant challenges to the evidence about the unrecorded calls. In particular it was not suggested that Tommy had told either of the applicants in these calls that the goods being imported were antiques. 
38.	In the light of this we formally declined to receive the fresh evidence on the grounds that it would not provide any grounds for allowing the appeal.
39.	We have looked at these applications with care and have reached the conclusion that the convictions are not arguably unsafe.
40.	We turn to the sentence appeals. Simms was sentenced to 22 years’ imprisonment, Nugent to 18. Simms applies for leave to appeal against sentence which we grant, and Nugent for an extension of time in which to seek leave and for leave, each of which we grant.
41.	The quantity of heroin scheduled to be imported was a gross weight of some 35kg which would equate to just over 14kg at 100% purity. Though the value on the street was said to be some £3.5m the money which would have been made by Simms was, before expenses, slightly more than £14,000. 
42.	In sentencing Simms the judge, who we remind ourselves had heard the trial, said:-
You played in my judgment the major role in this conspiracy. It was you that travelled to Holland. It was you that met the suppliers of the drugs in Holland and it was you ... who organised the importation, carefully arranging the transport, arranging the meeting between those who were to be involved, dispatching Nugent to Holland. … I have no doubt having listened to the evidence that those drugs were destined for you. You were … the dominating force in the conspiracy. You knew the seriousness of what you were doing but with complete disregard to the suffering that heroin brings you organised this conspiracy in order to achieve the substantial financial rewards that those who engage in such behaviour make, rewards made on the back of misery and degradation... .
43.	As to Nugent he said:-
You …were released from prison eight months before. You were also deeply involved in this conspiracy. You played an active role. I have no doubt at all that in travelling to Holland ... you did so in connection with this importation. … [Y]ou were there to meet the driver … you travelled out ... for the express purpose of supervising the handing over of the drugs and whilst there you again played an important role. ... You …went into this enterprise with your eyes open ...
44.	It is clear that for importation of 5kg and above of heroin (at 100% purity) after a trial sentences of 14 years and upward are to be expected. We have thus asked ourselves whether for Simms 22 years was manifestly excessive. 
45.	We are grateful to Mr Dyble for the respondent Crown who with scrupulous fairness tells us that the Crown’s case was and remains that Simms was not the consignee but an effective skilled middleman. That said, it seems to us that 22 years is too long. The justice of the case can be met by a reduction to a term of 16 years. As a consequence the position of Nugent requires attention. Loyal to the ratio in the mind of the judge we quash the term of 18 years in his case and for it substitute one of 12 years. 
46.	To those limited extents these appeals against sentence succeed.