Case Nos. 1999/01572/Z4;1999/07259/Z4
IN THE COURT OF APPEAL
CRIMINAL  DIVISION 
Royal Courts of Justice The Strand London WC2 
Tuesday 4th July, 2000 
B e f o r e: 
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES (THE LORD WOOLF OF BARNES) 
MR JUSTICE  ROUGIER 
AND 
MR JUSTICE BELL 
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R E G I N A 
- v -
"J" 
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Computer Aided Transcription by Smith Bernal, 
190 Fleet Street, London EC4 Telephone 0171-421 4040 
(Official Shorthand Writers to the Court) 
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THE APPELLANT was represented by counsel 
THE CROWN was represented by counsel 
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J U D G M E N T
1.	THE LORD CHIEF JUSTICE: On 18 January 1999, in the Crown Court at Wood Green, before His Honour Judge Lyons QC, the appellant, having changed his plea to guilty to one count of conspiracy to supply a class A drug (heroin), was sentenced to nine years’ imprisonment. Subsequently, on 3 June 1999 a confiscation order was made under section 2 of the Drug Trafficking Act 1994 in the sum of £22,890 to be paid within two years and in default a consecutive term of 18 months’ imprisonment was imposed. The appellant’s realisable assets amounted to £5,422. He appeals against sentence and against the confiscation order by leave of the single judge. 
2.	The facts of this matter can be taken very shortly because the issue both on the appeal against sentence and on the appeal against confiscation is within a narrow compass. 
3.	The appellant was involved with four others: Mr U, who pleaded guilty and was sentenced to seven years’ imprisonment and against whom a drug trafficking confiscation order was made in the sum of £12,000; Mr C, who pleaded guilty and was sentenced to five years’ imprisonment and against whom a confiscation order was made in the sum of £100; Mr A, who was sentenced to six years’ imprisonment after he had changed his plea, and against whom a confiscation order was made in the sum of £563; and Mr R (who was convicted by an 11 to 1 majority), who was sentenced to 12 years’ imprisonment and against whom a confiscation order was made in the sum of £24,187. 
4.	On 24 April 1998 an officer known as “Paul”, who was part of an undercover police operation, was provided with £43,000 in a holdall. He drove to a car park in North London where he met a group of men. He followed those men in their vehicle to the Highbury area. He showed them the contents of the holdall. One of the men stayed with the cash. Another man took “Paul” to a nearby flat which was the home of Mr U, where some of the co-accused were present. Some time later Mr C left the flat and re-appeared with two packets. “Paul” proposed that he would return to his vehicle after satisfying himself that the two packets contained heroin. An arrangement was made for the transfer of drugs (2 kilogrammes of heroin) and the money. As “Paul” and Mr C left the flat, police officers burst in. The occupants were arrested. The appellant and Mr R were arrested nearby, walking away from the vehicle in which they had delivered the heroin to the flat. 
5.	In passing sentence the judge indicated his approach to the different personalities involved in the conspiracy. First, he referred to the fact that the offence involved a large quantity of heroin. He said: 

“.... what was shown by the evidence and this operation showed very clearly the process of how this vile and dangerous drug passes down the chain of distribution 
from those members of an organisation who are trusted to be given access to a bulk supply, who themselves have intermediaries between them and the people at the front end of selling down to the lesser dealers, who themselves will distribute the drug to street level. In this case of course the lesser dealers, unfortunately for the defendants, were police officers.  
This operation was professional, slick and practised ....  
However, what I am quite clear on is the very nature and conduct of all matters on that day show that this was a professional operation. The meetings in various car parks or trading estates, the fortified door upon the flat, the use not of mobile phones as mobile phones are so common in use now nothing could be made of that, but the web of phone calls, particularly distancing [J] and [R] from those actually dealing through a cut-out, Mr [A], I find significant .....  
It is my view that Mr [J] and Mr [R] are the highest up the chain. They had access to and are trusted to hold bulk supply. I do not pretend they are those gentlemen who never appear before these courts, who make very vast profits and are very close to the source. They are, nevertheless, as high up the chain as this court ever expects to see. 
.... 
.... What is clear to me is that you were trusted to have 2kg of heroin, that you were 
trusted to deliver it and you were trusted to know all about the operation.”   
6.	When sentencing the appellant, the judge said:   “I make no difference between you and Mr [R] as being an equal partner at the top of this chain. What is also clear, however, is that you pleaded guilty at an early stage, withdrew your plea and then put it back again. In matters as serious as this the court is not inclined to reduce your credit for a plea of guilty by any substantial sum. It takes great courage to plead guilty in these matters. That you eventually did, so it will reflect to your credit. I take into account in passing sentence everything that I have heard and has been laid before me and with your plea of guilty I can reduce what would have been 12 years to a sentence of nine years’ imprisonment....”   
7.	In his very helpful submissions, counsel on behalf of the appellant accepts that the starting   point was appropriately 12 years for an offence of this nature. However, he submits that there were  two matters for which the appellant was entitled to credit: first, the plea of guilty for which he was  entitled to the normal discount of one-quarter or one-third of what would otherwise be the sentence;  and second, that the appellant was entitled to credit because he co-operated with the police. 
8.	It is unnecessary to go into the details of that co-operation. Indeed before the judge the  matter was not gone into at all. It is essential that information as to such assistance, with the  agreement of the prosecution and the defence, is placed before the sentencing judge. In this case the  judge clearly had in mind that some assistance had been given because he referred not only to what he had heard but what had been “laid” before him. However, it seems that no additional credit was in fact given to the appellant by the judge. This very experienced judge would have been well aware of the practice with regard to giving credit. There may be an explanation of which this court is unaware as to why no credit was given, but we have seen the additional information. Having looked at that information, although this is not a case where very great help was given to the prosecuting authorities, some help was given and it seems to us that in those circumstances that this should be reflected in the sentence. 
9.	In the battle against drugs it is absolutely essential that the prosecuting authorities are given information which can help to lead to the detection of others who are engaged in this trade. The courts must do what they can to assist those who are involved in trying to combat the ever-growing trade in drugs of this sort by giving incentives to those who are convicted and come to be sentenced to provide information. 
10.	Accordingly, it is our view that there should be a reduction in the appellant’s sentence. We therefore quash the sentence of nine years and substitute a sentence of eight years’ imprisonment. In relation to the confiscation order, counsel for the appellant makes clear and valuable submissions. He refers to the remarks which were made by the judge when passing sentence. He particularly refers to the repetition by the judge of the fact that the appellant was one of two men “entrusted” with the heroin. What is meant by “entrusted” in the context of the sentencing remarks is not clear, but the judge appears to be saying that the appellant and his co-accused, who was involved to an equal degree, were high up in an established chain. 
11.	It is submitted that there is no evidence to suggest that, although they were in possession of the drugs, they were ever paid anything for them. The terms on which they held the drugs are not known, but the fact that the judge referred to them being “entrusted” with the drugs suggests that they did not have a beneficial interest in them. 
12.	Normally if someone is found in possession of drugs, the inference is that they have acquired them and that they have done so by paying for them. In the drugs trade there is no credit. Those involved with drugs want cash. In those circumstances it seems to us that the inference can be drawn that, in the absence of any evidence to the contrary, drugs found in the possession of someone shown to be dealing in drugs have been paid for. Support for that approach is to be found in the judgment of Tuckey LJ in R v Paul Douglas Berry [2000] 1 Cr App R(S) 352. The facts in that case are different from those here, but that is authority for the proposition that it is a legitimate inference which can normally be drawn from the possession of drugs. 
13.	However, this case differs from the ordinary case because the judge felt it right to indicate in his sentencing remarks that he was prepared to draw an inference that the appellant had been “entrusted” with the drugs in question. In those circumstances the question arises: was it proper to draw the inference that they had been paid for? We do not think it was proper to do that for two reasons: first, the expression “entrusted” implies that the property belongs to someone else; and second, the appellant may have been affected by what the judge said in his sentencing remarks in deciding what course to adopt in relation to the confiscation proceedings. The appellant did not give evidence. We do not know for certain whether he was influenced by what the judge had said in passing sentence, but it is possible that he was so influenced and that he received advice which prevented him giving evidence. 
14.	Under section 4(3)(b) of the Drug Trafficking Act 1994, which is the provision relied on by the prosecution, the required assumptions are that any expenditure by a defendant since the beginning of the period was made out of payments received in connection with drug trafficking carried on by him. It was essential here for the prosecution to rely on section 4(3)(b), and that indeed was the way they had presented their case before the judge. In order to be able to have the benefit of the assumption for which that section provides, they have to show expenditure. If the appellant had not paid for the drugs, they would not be in a position to show that the appellant had expended any sums of money. Furthermore, it is relevant to refer to subsection (4)(a) which, even if the court had made the assumption, enables the court to take a different view because it provides: 
“The court shall not make any required assumption in relation to any particular property or expenditure if --  
(a) that assumption is shown to be incorrect in the defendant’s case;....”   
15.	Having regard to the sentencing remarks, it may be that in this case the assumption could be shown to be incorrect because the appellant could say, “I had not paid for the drugs. They were entrusted to me.”  Having regard to what we have set out already, we take the view that insofar as the confiscation order relies on the payment by the appellant for the drugs which were seized by the police when the arrest took place, it cannot stand. The confiscation order will be reduced to £7,390, and the consequent term in default will be reduced to six months. Both appeals will therefore be allowed in part.