Simms & Anor v R.

Where defendants deny participation in the charged drug-importation conspiracy and maintain that they believed the goods were antiques, the alleged police set-up raises a factual defence for the jury. It does not, on those facts, require a stay for entrapment.

Fresh evidence should not be received where it could not provide a ground for allowing an appeal against conviction. Sentences for a serious drug-importation conspiracy must reflect each offender’s actual role and remain proportionate, even where the quantity involved is substantial.

The appellants were convicted at the Crown Court at Woolwich of conspiracy to evade the prohibition on importing heroin, contrary to section 170(2)(b) of the Customs and Excise Management Act 1979. The prosecution relied on undercover operations, recordings, surveillance and the recovery of heroin from packages collected in the Netherlands.

Both defendants denied knowing that the importation involved drugs. They said they believed they were involved in smuggling antiquities. They sought to challenge their convictions on, among other grounds, alleged entrapment, non-disclosure, a refused letter of request, trial directions, telephone evidence and fresh expert evidence. They also appealed their sentences of 22 and 18 years’ imprisonment.

1. The applications for leave to appeal conviction were refused. The court held that the convictions were not arguably unsafe. There was ample evidence from which the jury could conclude that the appellants knew that the goods were drugs rather than antiques.
2. The entrapment ground did not justify a stay. A stay may be appropriate where a person admits committing an offence but says that the police entrapped him into committing it. Here, however, the appellants denied the charged conspiracy and alleged that they had been set up to believe the goods were antiques. That was a factual defence properly left to the jury.
3. The court had itself reviewed the unused material relevant to the background of the smuggling operation. It found nothing that could assist the appellants’ account. The trial judge had not arguably erred in refusing the defence letter of request, which was in substance an attempt to obtain material that had been held not disclosable.
4. The complaints about the hotel-booking evidence, counsel’s closing speech and the late telephone schedule disclosed no arguable error or prejudice. The judge’s summing-up appropriately neutralised any undue significance of the hotel evidence, and the telephone schedule had been agreed.
5. The court declined formally to receive the fresh expert evidence. It did not suggest that recorded transcripts were incomplete or inaccurate, nor that the unrecorded calls supported the appellants’ case that the goods were antiques. It could not therefore provide grounds for allowing the conviction appeals.
6. The sentence appeals were allowed. Although a post-trial sentence of 14 years or more was expected for importation of five kilograms or more of heroin at 100% purity, 22 years was too long for Simms, whose role was that of an effective and skilled middleman rather than consignee. His sentence was reduced to 16 years. To preserve the sentencing relationship identified by the trial judge, Nugent’s sentence was reduced from 18 to 12 years.

• Court of Appeal (Criminal Division): applications for leave to appeal conviction refused; sentence appeals allowed and the terms reduced.
• Crown Court at Woolwich: on 27 November 2006, the appellants were convicted of conspiracy contrary to section 170(2)(b) of the Customs and Excise Management Act 1979 and received sentences of 22 years’ and 18 years’ imprisonment respectively.