Hartwell v R.

An unambiguous and deliberate guilty plea will ordinarily prevent a successful appeal against conviction. A conviction may nevertheless be quashed where the plea was equivocal or unintended, or where prosecutorial conduct was so unconscionable that no trial should have occurred.

A defendant who knows the true facts cannot avoid a guilty plea merely because the prosecution overstated parts of its evidence. A significant distributor may be party to a conspiracy to supply drugs even if he neither imported nor cut them. Disclosure is not materially defective where the essential information was put to the defendant in served interviews and affords no defence.

Hartwell v R. concerned an application, 525 days out of time, for leave to appeal against conviction after guilty pleas to conspiracy to supply cocaine and possession of cannabis with intent to supply. It also concerned a Criminal Cases Review Commission reference of the 14-year-and-eight-month sentence imposed for the conspiracy.

After sentence, the Crown conceded that several matters originally relied on could no longer support the alleged conspiracy and that Hartwell had been placed too high in its hierarchy. Hartwell contended that his plea was equivocal, that disclosure failures had deprived him of a defence, and that the prosecution had abused the court’s process. The central issues were whether sufficient evidence remained to sustain the plea and whether the sentence should be reassessed.

Disposition

1. The court granted the extension of time but refused leave to appeal against conviction. It accepted the Criminal Cases Review Commission reference and reduced the conspiracy sentence from 14 years and eight months to 10 years, inclusive of remand time.
2. An unqualified guilty plea ordinarily precludes a conviction appeal. Applying R v Asiedu [2015] 2 Cr App R 8, the exceptional abuse-of-process route requires prosecutorial misconduct of a high order, such that no trial should have taken place. The Crown’s errors and later concessions resulted from inadvertence and a lengthy review, not bad faith or manipulation. Hartwell had made a free and informed choice to plead guilty after advice.
3. The court rejected the alleged disclosure failures. The interview briefing document was not material undisclosed material because its essential contents had been put to Hartwell in interviews served before plea. The references to him as a customer of Carter did not provide a defence. A conspiracy to supply in the United Kingdom could include importation, cutting, storage and distribution. Hartwell’s admitted and evidenced role as a significant distributor therefore did not fall outside it merely because he had no role in importing or cutting the drugs.
4. After excluding the conceded matters, the remaining contacts and meetings during the Spanish importations provided cogent evidence of Hartwell’s involvement in the conspiracy. The plea remained sustainable.
5. The concessions did, however, require a substantial reassessment of culpability. Hartwell was not a principal lieutenant, but remained a high-level distributor of a significant part of the imported drugs. A 15-year post-trial term, reduced to 10 years for the guilty plea, was appropriate.
6. The court made a limited costs order from central funds for non-legal expenses relating to the successful sentence appeal. It refused costs against the Crown under Prosecution of Offences Act 1985, since no unnecessary or improper act or omission was established.

• Court of Appeal (Criminal Division): In Hartwell v R. [2016] EWCA Crim 42, the court refused leave to appeal against conviction but accepted the Criminal Cases Review Commission sentence reference and reduced the conspiracy sentence to 10 years.
• Court of Appeal (Criminal Division): An earlier sentence appeal was dismissed in [2012] EWCA Crim 3151. A later procedural judgment recorded that the court was functus officio in respect of that dismissed sentence appeal: [2015] EWCA Crim 1977.
• Crown Court at Liverpool: Hartwell pleaded guilty and was sentenced by His Honour Judge Boulton to 14 years and eight months’ imprisonment for conspiracy to supply cocaine, with a concurrent two-year term for possession of cannabis with intent to supply.