Mulvey, R. v (Rev 1)

Late service of relevant prosecution evidence does not, by itself, make a trial unfair. The court must assess the prosecution’s responsibility for the delay and whether the defence has a real opportunity to understand, investigate and answer the material. Where the prosecution acted diligently, the evidence was explained, and adequate time and assistance were available to the defence, its admission will not create material unfairness.

For industrial-scale drug-importation conspiracies outside the guideline range, sentence must reflect total criminality, sophistication, leadership and comparative significance. The practical compression of very long sentences may justify sentences near the usual ceiling of 30 years, but not above it without justification.

The applicant was convicted at the Crown Court at Birmingham of four conspiracies to import cocaine and cannabis, committed in 2006 and 2007. He received concurrent sentences producing a total of 32 years’ imprisonment.

At trial, the prosecution served substantial financial material after the trial had begun. It alleged that a Spanish villa beneficially owned by the applicant had been funded with drug money. The defence sought exclusion under section 78 of the Police and Criminal Evidence Act 1984, relying principally on late service and difficulties in analysing the evidence and taking instructions.

On a renewed application after refusal by the single judge, the court considered whether the conviction was unsafe through unfair admission or disclosure failures, and whether the sentence was manifestly excessive or objectionably disparate from that imposed on a co-accused.

1. The renewed application for permission to appeal against conviction was dismissed. The court granted leave to appeal against sentence and allowed the appeal to that limited extent.

2. The judge had correctly admitted the late-served financial evidence. The prosecution had not been materially at fault: it acted promptly once information concerning the applicant’s financial links became available, and the principal delay arose from the Isle of Man authorities. The evidence was relevant to the claimed legitimate funding of the Spanish property.

3. Its late service did not make the trial unfair for the purposes of section 78 of the Police and Criminal Evidence Act 1984. The financial case was explained in witness statements and schematics. The defence had about 11 days to take instructions and prepare cross-examination, and obtained assistance from a forensic accountant. It therefore suffered no material or unwarranted disadvantage.

4. The remaining disclosure and evidential complaints, individually and cumulatively, disclosed no properly arguable ground. The trial judge had reviewed the relevant disclosure process, and the conviction rested on several compelling strands of evidence.

5. The 32-year sentence was not objectionably disparate merely because a co-accused received 25 years. The applicant was a directing mind, funder and linchpin of the conspiracies, and stood to gain materially more. The court applied the sentencing approach described in R v Cuni & Ors [2018] 2 Cr App R(S) 18, including the compression of sentences for exceptionally serious commercial drug offending. The sophisticated conspiracies, involving Class A and Class C drugs on a vast scale, justified 30 years. They did not justify a sentence above that level. The comparison with R v Sanghera [2016] 2 Cr App R(S) 15 did not support the applicant, because this offending involved far greater quantities.

6. The court quashed the 32-year sentences and substituted concurrent sentences of 30 years on the relevant counts.

• Court of Appeal (Criminal Division) — by judgment dated 15 October 2019, [2019] EWCA Crim 1835, refused permission to appeal against conviction, granted leave to appeal against sentence, and reduced the sentence from 32 to 30 years.
• Crown Court at Birmingham — on 13 June 2018, convicted the applicant of four drug-importation conspiracies and imposed a total sentence of 32 years’ imprisonment.