Marron, R. v

A count may properly be left to the jury where the prosecution evidence is capable of supporting the required inference safely. Once an alternative count has been withdrawn, the jury need not be told why if its removal focuses the jury on the remaining ingredients and the summing-up gives clear directions on the prosecution’s burden of proof.

In sentencing a courier in a drug-supply conspiracy, the quantity involved is important but must be assessed with the offender’s proved role, knowledge and the extent of the enterprise. Material uncertainty on those matters, together with personal mitigation, may make a substantial sentence excessive.

The applicant arrived at Luton Airport from Madrid carrying 44 kilograms of Phenacetin, a substance used in the United Kingdom as a cutting agent for cocaine. She was charged at Harrow Crown Court with attempted fraudulent evasion of the prohibition on importing cocaine and conspiracy to supply cocaine.

At the close of the prosecution case, the trial judge withdrew the importation count because there was no evidence capable of proving that the applicant believed the substance was cocaine. The conspiracy count was left to the jury. The applicant was convicted and sentenced to nine years’ imprisonment.

Her application challenged the refusal to withdraw the conspiracy count and the absence of an explanation to the jury for the withdrawn count. She also appealed her sentence.

1. Conviction. The court refused leave to appeal against conviction. The trial judge correctly held that there was no evidential basis on which a jury could infer that the applicant believed she was importing cocaine. That count, contrary to Customs & Excise Management Act 1979, section 170(2), was therefore properly withdrawn.
2. The remaining count was properly left to the jury. The prosecution evidence, if accepted, was capable of proving that the applicant knew she was carrying Phenacetin and intended it to be used in a conspiracy to supply cocaine. Her false account of the substance and destination, the telephone communications, earlier trips and cocaine traces on her clothing provided a sufficient basis for that inference.
3. No explanation of the withdrawn count was required. Its removal narrowed the jury’s task to the ingredients of the conspiracy count. The judge’s directions made clear that the prosecution had to prove the applicant’s participation and knowledge beyond reasonable doubt. There was no reason to doubt the safety of the verdict.
4. Sentence. Leave to appeal against sentence was granted and the appeal allowed. The court noted the sentencing comparison in R v Wolin [2005] EWCA Crim 3066, while correcting the judge’s understanding that the appellant there had pleaded guilty. Although the quantity of cutting agent was substantial and a double-figure sentence could have been appropriate for a fully informed participant, the applicant’s role was minor and the scale, destination and extent of her knowledge were uncertain. Taking those uncertainties and her personal mitigation into account, nine years’ imprisonment was excessive. The sentence was substituted with seven and a half years’ imprisonment, with time on remand continuing to count.

• Court of Appeal (Criminal Division). Leave to appeal against conviction was refused. Leave to appeal against sentence was granted, and the sentence was reduced from nine years to seven and a half years’ imprisonment.
• Harrow Crown Court. The applicant was convicted of conspiracy to supply a Class A controlled drug. The attempted importation count was withdrawn from the jury. She was sentenced to nine years’ imprisonment.