Drug money & Sentencing – Is Cash Relevant?
When someone is arrested for supplying drugs, it is not uncommon for drug money to be recovered as well. In the case of Mahmood [2019] EWCA Crim 1532, the court dealt with the relevance of cash when determining which sentencing category an offence fell into.
A large quantity of drugs was seized from Mahmood’s premises along with around £30,000 in cash.
The Judge found that the offending fell into Category 2 harm, not Category 3 as had been submitted. The Judge aggregated not only the weight of the drugs found (in total, about half a kilogram), but also what the cash represented in terms of drugs. The Judge took the view that just under £30,000 of cash was equivalent to the value of about half a kilogram of heroin.
Together, drugs of about half a kilogram and cash equivalent to a further half a kilogram amounted to an overall weight equivalent of about 1 kilogram according to the Judge. This meant that the case fell into Category 2 and not Category 3.
On the Applicant’s behalf, it was submitted before the Judge that since the heroin found was 434 grams, the case fell into Category 3.
However, the Judge rejected the submissions advanced on the Applicant’s behalf. He found that the Applicant fell within the centre of Category 2, as if he had been in possession of 1 kilogram of Class A drugs.
Mahmood appealed his sentence.
What did the Court of Appeal decide?
The court held that:
‘…the Judge was entitled to assess the nature of the dealing and to find that the Applicant had a leading role. The evidence in particular of large quantities of drugs and cash, keys and safes at different addresses has more than one of the indicia of a “leading role” being satisfied. The purity of the heroin, which is not explained by the Applicant, indicated that he is likely to have had close links with the original source. It was not cut, and there was evidence that it was highly likely to be of high purity.
For the reasons which he gave, the Judge was also entitled to rely on the cash as evidence of an expectation of substantial financial gain. That was whether the cash was looked at simply as cash in hand from drug dealing or, as the Judge found, that it represented profit from drug dealing.
The fact that there was evidence of a number of addresses, two safes containing substantial quantities of cash at different addresses and keys in one property relating to another property, indicated and added to the ability of the Judge to find that a commercial operation was being undertaken which went beyond simply street dealing.’
However, we have to treat this decision with a degree of caution. Mahmood had pleaded guilty to money laundering so far as the cash was concerned, as it was the proceeds of crime. When the cash can not so clearly be linked to criminal conduct, caution must be exercised before too readily concluding that it is a proper factor in assessing harm for sentencing purposes. In all cases, those defending will need to examine such evidence with the utmost care.
How can we help?
We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly.
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
[Image credit: “Money on my mind” by jo.sau is licensed under CC BY 2.0) Read More
Drink Driving and Drug Driving – The Second Sample
In some cases, the police need to take either a blood or urine sample from a driver suspected of drink driving, or driving under the influence of drugs. In almost all instances, the police opt for a blood sample.
Part of the procedure is informing the suspect that they can if they wish request part of the sample for independent testing.
Despite this vital protection being available, a large number of people fail to take advantage of this procedure.
Why do people not use this procedure?
Part of the problem is the procedure adopted by the police. The police do not offer a sample to the suspect (save where the suspect is incapable of consenting). They merely state, at the commencement of the procedure, that a suspect can request a sample.
From a practical perspective, this is a deficiency in the procedure. The suspect must first pick up on the option being available, which is not always easy during what can be a confusing and pressured situation. Then they must later make a specific request.
The legislation
Before the 1988 road traffic legislation, there was a specific requirement for the police to offer a specimen. Consequently, the new law was very much a significant dilution of rights.
In Campbell v Director of Public Prosecutions [2003] EWHC 559 (Admin) the court held:
“It is, therefore, no longer a statutory requirement for the officer to inform the suspect of his right to request his own specimen. [Counsel] submits that I should regard it as by now a settled principle of common law that such information should be provided to those against whom police officers are proceeding under section 7 of the 1988 Act. In my judgment, that is a hopeless proposition.”
This is not, however, the end of the matter as the court went on to state:
“There may well be circumstances, however, when, for reasons similar to those considered by the Court of Appeal in Mitten, a defendant will wish to challenge the admissibility of the analysis because he claims to have been unaware of his right to request the sample and as a result has suffered prejudice. It may be that such an application could be made under section 78 of the Police and Criminal Evidence Act 1984. I do not intend further to anticipate circumstances in which prejudice might be established.”
Vulnerable groups
A vulnerable or distressed suspect may well be able to argue that they were unaware of their rights. The same would apply to a person for whom English is not their first language. That would be the case even though the police communicated the right.
It is the effectiveness of that communication that will be critical in such cases.
The above is just one small aspect of the law concerning the taking of samples. The law relating to drink driving and drug driving is detailed and complex. You should always seek advice before entering a plea at court. A failure to follow the proper procedure may provide a valid defence in this type of case.
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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Drugs in Prisons and the effect on Sentencing
With many offences, the punishment may vary according to the context of the criminality. For example, violence in a domestic context is usually treated more harshly than the same level of harm against a stranger. The same is true for drugs case, especially when it comes to drugs in prisons.
Sentencing
A failure to understand this basic point can result in clients being given incorrect advice about the likely sentence. An attempt to ‘over mitigate’ and suggest an unrealistic penalty can often backfire. This is because the court loses sight of other better points made in mitigation.
Recently, a man pleaded guilty to taking three relatively small drugs packages into prison, at the request of his cousin. The packages contained cannabis resin, cannabis bush and 20 steroid tablets.
In passing sentence, the judge observed that anyone involved in smuggling items of this sort into a prison commits an offence that passes the custody threshold by a significant degree.
He also relied upon the previous authorities of the Court of Appeal. He said that it had been made abundantly clear that;
“the smuggling of drugs into prison undermines the order of our custodial institutions and causes problems for those who are responsible for supervising prisons and looking after the welfare of inmates.”
That is a view with which the appeal court re-endorsed on this occasion.
What happened in the appeal?
When considering a sentence of 18 months’ imprisonment, the advocate on appeal sought to invoke the drugs sentencing guideline. When that guideline is applied in isolation, it suggests that a sentence of 18 months is manifestly excessive.
Under that guideline, this offence would fall into the significant role Category 4 part of the guideline. Therefore, the starting point should have been a high-level community order.
The Court of Appeal rejected that submission, and made the following observations:
“The drugs guidelines are of course helpful in sentencing offences of this sort, but the reality here is that the mischief is bringing the drugs into prison. That is a very significant aggravating feature and whilst we rely upon the guidelines for some assistance, they cannot determine the final prison sentence to be imposed. In the view of this court, this falls way outside the range which [Counsel] has identified to us today.
The taking into prison of drugs is pernicious. It causes discipline problems within any custodial institution; it endangers the safety of the inmates and staff and adds greatly to the burden of trying to impose discipline.
In the view of this court, having been given full credit for the plea, which he had entered at the earliest opportunity, the total sentence of 18 months cannot be said either to be wrong in principle or manifestly excessive, reflecting as it does a total sentence for three separate offences of bringing different items into prison on this occasion.”
All of our advocates understand the guidelines and broader sentencing considerations. We can be relied upon to obtain the best result for all of our clients.
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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Why hasn’t Michael Gove been arrested?
Why hasn’t Michael Gove been arrested?
A question on many people’s lips since the former Justice Secretary admitted to using cocaine several times earlier in his career.
So, could he face the legal consequences of this?
Cocaine is a Class A drug, the most serious category. Drug offences are governed by the Misuse of Drugs Act 1971 and whilst buying a controlled drug in this scenario is not an offence, possession is. It carries up to seven years in prison.
Is Michael Gove’s confession enough?
Possibly. The Prosecution will usually have to prove that a substance is in fact a controlled drug, and the most convenient way to do that is through a forensic report.
In this case, though, the drugs are long gone and can’t be analysed. The prosecution would have to rely on his public confession.
A confession was relied on in R v Chatwood [1980] 1 All ER 467 where the Court of Appeal said that a confession could amount to evidence that, on the face of it, the defendant had been in possession where he was expressing an informed opinion. However, the confessions in that case were made to police officers when the defendants were being questioned about the offences.
Whether Michael Gove’s opinion could be described as ‘informed’ will be the key question and would likely depend on how often he used the drug. He would probably be invited to attend an interview under caution first of all, to see if he repeated his allegations.
His confession could be used as evidence, however, if he were to be charged with attempted possession under the Criminal Attempts Act 1981.
The prosecution could accept that Gove did not actually possess cocaine but allege instead that he had tried to possess it. The maximum sentence is the same.
Has it been too long to charge Michael Gove with a drugs offence?
No. There is no general ‘Statute of Limitations’ in England and Wales. Offences only triable in the Magistrates’ Court usually have a limit of six months, but possession of a drug is not one of those.
He could, theoretically, still be charged.
Will Michael Gove be prosecuted?
The Crown Prosecution Service would make a decision as to whether a prosecution should proceed.
To do this, they apply the Full Code Test set out in the Code for Crown Prosecutors. This is the same for every offence.
The Full Code Test has two stages which need to be met. These are the evidential stage, and the public interest stage.
In short, there needs to be enough evidence for a realistic chance of conviction, and it must be in the public interest to bring a case. If a case fails either test, it will not be prosecuted.
The confession is potentially enough evidence for a case to be brought. A Crown Prosecutor would have to be satisfied that it, and any other evidence, is admissible and leads to a realistic prospect of conviction.
Any evidence from Owen Bennett, the City AM political journalist who outed Gove’s cocaine use in his unauthorised biography of the Environment Secretary, or Gove’s political advisors to whom he confessed would need to be carefully considered, and a prosecutor may have grave doubts as to its admissibility.
In the event there was enough evidence, the case would also have to pass the public interest stage. A case will usually pass this stage unless there are factors against the prosecution that outweigh those in favour.
This stage takes into account a lot of factors, including the seriousness of the offence, the circumstances, any harm caused, impact on any victims, and whether a prosecution is proportionate.
The likely penalty would be a small fine or community punishment at most.
Therefore, Gove could be prosecuted but it is unlikely in all of the circumstances. Reputationally and politically, this admission could exact a great cost.
How we can assist
If you need specialist advice, then get in touch with John Howey on 020 7 388 1658 and let us help. We can advise on all aspects of your case.
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Modern Slavery – Can it ever be a Defence?
Section 45 of the Modern Slavery Act 2015 provides a defence to specific criminal charges where it is shown that they were committed under a compulsion due to slavery or exploitation (for over-18s) or as a direct consequence of slavery or exploitation (for under-18s). So the short answer is maybe.
The latter test, for children, is less difficult to establish. It is a defence similar to duress.
It can, for example, be used for drugs offences committed as part of a ‘County Lines’ drugs ring.
What else is modern slavery a defence to?
The modern slavery defence can be used for any criminal offence not listed in Schedule 4 of the Modern Slavery Act 2015.
It can’t be used for serious crimes like murder, manslaughter, kidnapping, piracy, serious violence, firearms offences, robbery, burglary, arson, criminal damage, most sexual offences, or modern slavery offences themselves. There are other offences to which the defence does not apply.
It can be used as a defence to any other crime. It is used for victims of ‘County Lines’ drugs offences but also applies to most immigration offences, minor assaults, theft, or conspiracy to do any of these things. Anyone who is trafficked or exploited can potentially benefit from it.
Children may be exploited for a variety of reasons by gangs and used to carry and supply drugs. Children who are particularly vulnerable are often targeted, and they may feel that they can’t tell anyone in case they are arrested and punished.
What needs to be proved?
The defence requires several things, depending on a person’s age. In both cases, they need to be a victim of slavery or exploitation.
Those over 18 rely on s.45(1), where they are not guilty if:
1) The crime is committed because they are made to do it
2) They are made to do it for some reason connected to the slavery or exploitation
3) A reasonable person, with the same characteristics, would not have had a realistic alternative in that situation.
A person under 18 relies on s.45(4), where they are not guilty if:
1) The crime is committed as a result of the person being or having been in the past, a victim of slavery or exploitation, and
2) A reasonable person, with the same characteristics, would have done the same.
The defence for under-18s is less difficult to establish, reflecting the increased vulnerability of children.
A person has to raise enough evidence for it to be possible that they are a victim of slavery of exploitation within the meaning of the Act. The prosecution will have to disprove that beyond a reasonable doubt.
If they cannot, a person then has to show it’s possible that the offence was carried out either under a compulsion relevant to (over-18) or as a direct consequence of (under-18), that slavery or exploitation. This, again, will have to be disproven beyond a reasonable doubt.
If the prosecution cannot disprove either of these things, then the defence succeeds.
How can we help?
Modern slavery cases are important and sensitive cases to deal with. Our specialist lawyers can advise you on whether you have a defence, and help you put that defence forward, advising on prospects of success and instructing experts to help along the way.
We are experts at dealing with vulnerable clients and children, including many victims of exploitation by ‘County Lines’ drug gangs.
This is only a general overview of the law. If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch with. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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Drug Detection and Prisons
The government has announced that drug detection scanners are being introduced at ten of the “most challenging” prisons. The technology will be used to detect drugs on clothes, paper and mail. It will be able to detect otherwise invisible traces of substances that have been soaked into clothes or letters in an attempt to bypass normal security.
The prisons in question are part of the “10 prisons project” and have struggled with acute problems including high drug use, violence and building issues.
The prisons in question are Hull, Humber, Leeds, Lindholme, Moorland, Wealstun, Nottingham, Ranby, Isis and Wormwood Scrubs.
The introduction of these scanners is the latest stage of the project, and various measures have already been implemented. This includes sniffer dogs, extra searching staff and specialist staff. X-ray scanners are also planned, and one has already been installed at HMP Leeds.
What will happen if drugs are found?
The staff have been trained in the handling and preservation of evidence, a positive result will lead to further investigation and could lead to sanctions for a prisoner or visitor and also possible criminal prosecution. Any intelligence obtained may be used to assist decisions on which prisoners or cells require further investigation. Sanctions could include closed visits.
What criminal offences could result?
It is a serious offence to bring, throw or otherwise convey (by post for example) any “List A” article into or out of prison. All controlled drugs are List A articles, and while it is an offence to take other items into prison, this article is concerned with drugs.
Drugs are a huge issue in prisons that are said to create a cycle of violence. In particular psychoactive substances can cause aggression, self-harm and trap prisoners in drug-debt.
The scanners and other measures aim to improve detection rates and enhance security procedures. Reducing the quantity of drugs in prisons should reduce the eve of violence and ultimately lead to more rehabilitation so, therefore, less re-offending.
What sentence can be imposed?
This offence is one that is so serious it can only be dealt with at the Crown Court, and custodial sentences are usually imposed, even for offenders of previous good character.
Examples of sentences imposed are; sixteen months for a small amount of cannabis, 28 months for small amounts of diamorphine, cocaine and cannabis, 4 months for Subutex.
It is also an offence for a prisoner to encourage someone to bring in drugs for him, in the case of R v Cousins 14 months imprisonment was imposed for incitement to supply in these circumstances.
How can we help?
We have vast experience of dealing with drug-related offences from the police station to representation at the Crown Court. To discuss any aspect of your case, please contact 020 7388 1658 or jhowey@jfhlaw.co.uk
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