Paul & Ors, R. v

On a submission of no case, the question is whether the evidence, taken at its highest, could properly support conviction by a jury. A summing-up must fairly summarise the evidence and make the issues clear, but a judge need not rehearse counsel’s arguments. A properly and unequivocally withdrawn prosecutorial submission will rarely make a conviction unsafe. A defendant seeking a Newton hearing must identify a material factual issue and relevant evidence capable of affecting sentence. Sentencing must reflect the role proved against the individual offender, even where the extent of other conspirators’ roles is unproved.

Three appellants challenged convictions for conspiracy to import cocaine. A fourth appellant, who had pleaded guilty, challenged sentence; one of those convicted also appealed sentence.

The prosecution case was that the London defendants helped plan an importation executed by a Derbyshire group. It relied principally on surveillance evidence of meetings, telephone contacts and their timing in relation to the importation. The appellants argued that there was no case to answer, that the Recorder’s summing-up did not fairly present their cases, and, in one case, that an improper Crown closing submission had prejudiced the jury.

The sentence appeal raised whether a Newton hearing should have been held before the court treated the guilty appellant as a central operational figure, and whether the other appellant’s lesser role justified a lower sentence.

1. The appeals against conviction were dismissed. The correct test on a submission of no case is whether the evidence, taken at its highest, is evidence upon which a jury could properly convict. That test, rather than any requirement for an exceptional case, was applied afresh. The surveillance evidence and the timing and character of the meetings provided a prima facie case for the jury against each appellant.

2. The summing-up was adequate. Its function was to summarise the evidence and ensure that the jury could identify the issues. It was not ordinarily necessary for the judge to rehearse the competing advocates’ arguments. The judge had made clear that association with a conspirator could be innocent, had directed separate consideration of each defendant, and had set out the evidence, including the exculpatory account given by one defendant, in substantial detail. The jury had also heard a six-week trial and closing speeches.

3. The Crown’s withdrawn suggestion that one appellant was a principal conspirator did not render his conviction unsafe. Counsel withdrew it unequivocally after discussion with the defence. In the absence of inadmissible material or information not otherwise in evidence, counsel’s argument will only rarely make a conviction unsafe. The agreed withdrawal fully resolved any potential unfairness.

4. The guilty appellant’s sentence appeal was dismissed. A Newton hearing is appropriate where a defendant disputes a factual allegation material to sentence. The defendant must identify the factual issue and the evidence to be challenged or called. Ordinarily, a material factual dispute and relevant evidence should be investigated; the judge should address explicitly whether a hearing is required. Here, however, the material facts were effectively undisputed and no evidence was identified that could reduce the demonstrated extent of the appellant’s participation. A starting point of 17½ years, reduced by 20 per cent for the guilty plea to 14 years, was neither wrong in principle nor manifestly excessive.

5. The remaining sentence appeal was allowed. The evidence showed that the appellant assisted another conspirator, but did not establish a function beyond that assistance. His role was therefore materially less than those of conspirators who converted the vehicle or performed operational functions. The sentence of 14 years was quashed and replaced with a sentence of 12 years’ imprisonment.

• Court of Appeal (Criminal Division): Dismissed the conviction appeals of Doyle, Roberts and Paul; dismissed Woolley’s sentence appeal; and allowed Paul’s sentence appeal, substituting 12 years’ imprisonment for 14 years.
• Trial court: Doyle, Roberts and Paul were convicted by a jury of conspiracy to import cocaine. Woolley had pleaded guilty and was sentenced after the trial; Paul and Woolley appealed sentence.