Dundas-Jones & Ors v R

Where a defence is properly founded on the evidence, a trial judge must leave it fairly to the jury. Judicial interventions which effectively withdraw that defence require an unequivocal correction in the summing-up; otherwise the conviction may be unsafe.

Fresh, reliable and untainted evidence which materially undermines the Crown’s proof of a defendant’s knowledge may also render a conviction unsafe.

On sentence, an appellate court will ordinarily respect the trial judge’s assessment of a defendant’s role in a complex drug conspiracy. Sentencing comparisons require materially comparable culpability, and a guideline range does not displace the assessment of the offender’s role and the gravity of the overall criminal enterprise.

Twelve defendants sought to challenge convictions or sentences arising from an international conspiracy to import cocaine into the United Kingdom, manufacture it into crack cocaine, supply it, and transfer the proceeds abroad. The indictment was divided between two trials at Snaresbrook Crown Court before HHJ King and HHJ Kennedy.

Mrs Dundas-Jones was convicted of the courier-importation conspiracy. Her defence was that a short telephone call made from her mobile could not have been the call booking a courier’s flight. Anderson was convicted of the same conspiracy. Fresh evidence was later adduced of a conversation in which Dundas-Jones appeared to acknowledge that he had not told her that she was going to collect drugs.

The remaining challenges concerned other convictions and sentences, principally complaints about sentencing assessments, guideline ranges and disparity.

1. Mrs Dundas-Jones’s appeal against conviction was allowed. Her defence was entitled to invite the jury to infer, from the booking agent’s evidence about the usual duration of a telephone booking, that the three-and-a-half-minute call from her mobile was not the booking call. The judge’s interventions during counsel’s closing speech effectively withdrew that available defence from the jury. His later general warning against speculation, coupled with emphasis on the absence of evidence of another call, did not unequivocally disavow the earlier interventions. There was a real possibility that the jury sidelined the defence rather than considered it fairly. The conviction was therefore unsafe.

2. Anderson’s appeal against conviction was allowed. The court treated the fresh evidence hearing as the substantive appeal. Mr Hawkins’s evidence of the overheard conversation was honest, accurate and from an untainted source. It materially undermined the Crown’s case that Anderson knew the purpose of meeting the courier. Her conviction was unsafe. Her application for disclosure of a letter written by Dundas-Jones was consequently moot.

3. The renewed application by Blackman against conviction was refused. The trial judge fairly and adequately left the intertwined importation and money-laundering cases to the jury. The criticisms of his treatment of Jones’s evidence, the handwriting evidence and other matters disclosed no arguable unfairness.

4. The sentence challenges failed. In a lengthy and complex conspiracy trial, the sentencing judge is generally better placed to assess individual culpability. The court found no material factual error or disproportionate assessment in the sentences imposed on the principal offenders. The international character of the conspiracy, its scale, and the manufacture and supply of crack cocaine justified the severe sentences imposed on those with leading or central roles.

5. Disparity arguments failed because the proposed comparators had different functions and levels of culpability. The court also held that a drug-quantity guideline did not warrant intervention where the sentence, though towards the upper end, remained justified by the offender’s conduct and the circumstances of the conspiracy. Benjamin’s and Jones’s sentence appeals, for which leave had been granted, were dismissed.

• Court of Appeal (Criminal Division): In [2007] EWCA Crim 2, allowed the conviction appeals of Mrs Dundas-Jones and Anderson, and dismissed the remaining challenges.
• Snaresbrook Crown Court: Two jury trials before HHJ King and HHJ Kennedy resulted in the relevant convictions. On 27 February 2006, the judges sentenced the convicted defendants after conferring to achieve consistency.