Draper & Ors, R v

A notice abandoning a criminal appeal or application ends it unless the notice is a true nullity because the appellant’s mind did not accompany the act.

A conviction is not unsafe merely because evidence properly admissible against co-defendants may reinforce the existence of a conspiracy. Clear directions limiting the use of that evidence should be respected. Nor does a restriction on exploratory questioning, or alleged non-disclosure, render a conviction unsafe where the material would be neutral or immaterial and equivalent evidence was available to the defence.

In sentencing, a court must not treat unproved earlier conduct as a conviction. It may assess its relevance to role. Parity also requires materially different offenders to receive differentiated sentences. Serious illness may justify a reduction where custody is significantly more burdensome than for an ordinary prisoner.

Draper and Eastabrook were convicted at Ipswich Crown Court on 14 June 2007 of conspiracy to smuggle cigarettes imported through Ipswich Docks in 2005. Frost pleaded guilty at the beginning of the trial. The unpaid duty and VAT exceeded £2 million.

Draper and Eastabrook sought to challenge their convictions. Their complaints concerned evidence from a 2000 alcohol-smuggling conspiracy, restrictions on questions to surveillance officers, later-disclosed material about Polymore Ltd, and, for Eastabrook, the judge’s summing-up. Draper had apparently abandoned an earlier application before seeking to advance new grounds.

All three defendants challenged sentence. The central issues were parity between Draper and Turner, Eastabrook’s recalled life licence and rehabilitation, Frost’s guilty plea, and whether Frost’s severe rheumatoid arthritis made custody an exceptionally onerous punishment.

1. The court refused Draper’s and Eastabrook’s applications for leave to appeal against conviction. It reiterated that an abandonment notice brings an appeal or leave application to an end unless it is a true nullity. The court did not need to decide whether Draper had in fact abandoned his application because his proposed grounds were not arguable. The rule was derived from R v Medway (1976) 62 Cr.App.R 85.

2. The 2000 evidence was not evidence against Eastabrook. It was capable of supporting the case against Turner, Draper and Marshall, but did not assist in proving that Eastabrook joined the admitted conspiracy. The judge clearly directed the jury that it could be used only against those present at the 2000 meeting. There was no basis to suppose that the jury disregarded that direction.

3. The restrictions on exploratory questions to surveillance officers and the subsequently disclosed material did not make either conviction unsafe. Even assuming that further material existed or should have been disclosed, it was neutral or immaterial to whether the defendants participated in the charged smuggling conspiracy. The defendants could themselves have given, or called evidence of, non-cigarette meetings and Polymore’s activities. The judge’s challenged comments in the summing-up were legitimate comments on the evidence and preserved the competing cases fairly.

4. Draper could not be sentenced as though convicted of the 2000 smuggling. The judge could nevertheless use the evidence to reinforce the conclusion that he was a professional participant in a £2 million revenue fraud. However, a seven-year maximum sentence treated Draper as identical to Turner despite Turner’s analogous prior conviction and commission of the offence while on licence. Draper’s sentence was therefore quashed and replaced with six years.

5. Eastabrook’s six-year sentence was appropriate. Reducing it to reflect time in custody after recall of his life licence would count that time twice. His rehabilitation did not mitigate the sentence where he committed this offence during the same period.

6. Frost’s role and the limited reduction for his delayed guilty plea were properly assessed. His severe rheumatoid arthritis, disability and heightened vulnerability to infection meant imprisonment would be significantly more onerous for him than for an ordinary prisoner. His sentence was reduced from five-and-a-half years to four-and-a-half years.

• Court of Appeal (Criminal Division) In [2008] EWCA Crim 3206, applications for leave to appeal against conviction by Draper and Eastabrook were refused. Draper’s sentence appeal and Frost’s sentence appeal were allowed, with substituted sentences of six years and four-and-a-half years respectively. Eastabrook’s application for leave to appeal against sentence was refused.
• Crown Court at Ipswich On 14 June 2007, Draper and Eastabrook were convicted of conspiracy to smuggle cigarettes. Frost pleaded guilty at the beginning of the trial. Sentences included seven years for Draper, six years for Eastabrook and five-and-a-half years for Frost.