Hamilton & Ors, R. v

Where the prosecution relies on circumstantial evidence, the question on a submission of no case is whether a properly directed reasonable jury could draw the proposed inference from the proved primary facts. There is no separate requirement that the inference be conclusive or the only reasonable inference at that stage.

A judge need not construct speculative explanations for a defendant who has not given evidence. The judge should fairly summarise any material account given before trial and the substance of the defence case. In sentencing a substantial drugs conspiracy, street-dealing guidelines may be of limited assistance where the scale and quantities cannot be assessed and the offending is materially wider.

Eight defendants faced allegations of a conspiracy to supply Class A, B and C drugs across Worcestershire, Leicestershire and Derbyshire. The Crown alleged that Hetherington and Pincombe were principal organisers in different areas, that Hamilton was a major supplier, and that Dakin provided a property used to store and distribute drugs and proceeds.

Hamilton was convicted of conspiracy to supply Class A drugs and pleaded guilty to the Class B count. He renewed applications for leave to appeal against conviction and sentence. Hetherington appealed his sentence with leave. Dakin renewed an application for leave to appeal against sentence.

The central questions were whether Hamilton had a case to answer on the Class A count, whether the jury directions rendered his conviction unsafe, and whether the sentences properly reflected guilty pleas, culpability and the scale of the conspiracy.

1. Hamilton’s renewed application for leave to appeal against conviction was refused. In a circumstantial-evidence case, the applicable question is whether a reasonable jury, properly directed, would be entitled to draw the relevant inference from the primary facts. The court applied the approach stated in R v Jabber [2006] EWCA Crim 269. It is the same as the ordinary no-case test derived from Galbraith (1981) 73 Cr App R 124.
2. The evidence was sufficient to permit the jury to infer that Hamilton participated in the conspiracy as a whole. His repeated personal and telephone contact with other conspirators, the financial evidence, and the nature of the enterprise were capable of supporting that conclusion. His possession of Class B drugs on arrest did not preclude that inference.
3. The summing-up did not make the conviction unsafe. A judge is not generally required to develop speculative points suggested by counsel for a defendant who has not given evidence. The judge should, however, summarise any material pre-trial account. Hamilton had given no such material account, and the judge had adequately identified the basis on which the defence contended that his involvement was limited to Class B drugs.
4. Hetherington’s sentence appeal was allowed. The court held that the reduction for his early guilty pleas was inadequate. A starting point of 14 years after a contested trial, followed by appropriate credit for the pleas and personal mitigation, required concurrent sentences of nine years on count 1 and seven years on count 2. His total sentence was therefore reduced from 12 years to nine years’ imprisonment.
5. Hamilton’s and Dakin’s sentence applications were refused. The quantity of drugs dealt with could not be reliably assessed and the conspiracy went materially beyond street dealing. The judge’s assessment of Hamilton as below the two principal organisers, and of Dakin as a provider of a safe house who also dealt in drugs, justified the sentences imposed.

• Court of Appeal (Criminal Division): Hetherington’s sentence appeal was allowed and his total sentence reduced to nine years. Hamilton’s renewed applications for leave to appeal against conviction and sentence, and Dakin’s renewed application for leave to appeal against sentence, were refused: [2008] EWCA Crim 2673.
• Crown Court at Worcester: Hamilton was convicted by a jury of conspiracy to supply Class A drugs and pleaded guilty to the Class B count. Dakin was convicted of the three conspiracy counts. Hetherington pleaded guilty to the Class A and B counts. On 7 December 2007, Hetherington and Hamilton each received 12 years’ imprisonment, and Dakin received six years’ imprisonment.