Appeals against sentence and conviction in a large scale conspiracy to import cocaine into the UK following a complex trial that lasted 14 months.Applications for leave to appeal against conviction and sentence arising out of a conspiracy to import cocaine into the UK. The allegations related to the importation of large amounts of cocaine from South America into the UK via boat by the six defendants ('S','SH','W','K','R' and 'H') in various capacities over several periods from 1996 to 1999. The counts were divided into periods of time: count 1A covering conspiracy to import cocaine in 1996; count 1B covering 1997; count 1C covering 1998 to early 1999. Counts 2 were divided into the same time spans but related to conspiracy to supply cocaine. H pleaded guilty to counts 1 and 2 and was sentenced to 15 years' imprisonment on each count to run concurrently. S was sentenced to 19 years for count 1B with 24 years concurrent on count 1C. W was sentenced to 16 years for count 1A. K received 20 years on each of counts 1A and 1B to run concurrently. R was sentenced to 19 years for counts 1B and 1C to run concurrently. SH received 5 years' imprisonment on count 2C. The first five defendants appealed against conviction. They contended that the length of the trial, the volume and complexity of the evidence involved and the fragmentation of the trial process meant that the resulting convictions were unsafe. It was further contended that the prosecution were to blame for many of the delays, in particular that they should have split the defendants to produce a series of shorter cases. In addition there was criticism that the prosecution had only estimated the trial to last six months. S's grounds of appeal were additionally his poor mental health during his trial and that the judge should have discharged the jury after the prosecution's remarks during their closing speech that the telephone number of a cocaine contact had been found in S's address book. K argued that his conviction on count 1B was inconsistent with W's acquittal on the same count as the prosecution's case was that they were involved in the conspiracy together. The prosecution submitted that R was the skipper of one of the yachts used to import cocaine on two voyages in 1997 and 1998. R argued that no traces of cocaine were found on the yacht and as a result the case against him was dependant on inference. The case against SH was based on evidence of a phone call and SH argued that there was no case to answer. All six defendants applied for leave to appeal their sentences. S contended that his sentence should have been reduced to take into account his harsh treatment during the trial when he was kept in solitary confinement most of the time and subjected to strip searches up to eleven times a day. H was sentenced following an agreement between the Crown and H's counsel on the basis of a plea that the judge would place H below S in the pecking order of offenders.HELD: (1) The correct approach to lengthy trials was apparent from R v Kellard & Ors (1995) 2 CAR 134. There was no doubt that the jury received as helpful and powerful summing up as any jury could have been given. It could not be accepted that the jury were ultimately disadvantaged by the course of or length of the trial. (2) The prosecution's estimate on the information available to them was not unreasonable. It was right that, if possible, the defendants should have been tried together. Therefore, the length and problems encountered in the trial did not warrant the grant of permission to appeal against conviction. Leave was however granted to W and K. (3) With regard to S's grounds of appeal, psychiatric evidence was put before the jury and the judge halted the trial to allow S to recover from his medical condition. The judge had properly directed the jury to ignore the prosecution's comments about the cocaine contact's telephone number and the judge was entitled to exercise his discretion not to discharge the jury as he did. S's application for leave to appeal was therefore refused on both grounds. (4) The evidence against W and K was different and there was little difficulty in identifying material so that different verdicts could properly result between the two. Accordingly, both K and W's convictions were safe and their appeals were dismissed. (5) In relation to R's conviction for the 1997 period, the evidence established facts from which the jury were entitled to infer that cocaine had been on board the yacht. His conviction was safe on count 1B. However, there was insufficient evidence to support R's conviction on count 1C and this appeal was allowed. (6) SH's call had to be put into context, the calls surrounding that call related to the disposal of cocaine. A jury would be entitled to infer that the call discussed the disposal of cocaine as well. Accordingly, there was a case to answer and his application for leave to appeal was refused. (7) The judge was right to state that he could not reduce S's sentence on the basis that the detention was unlawful. S's sentence was not manifestly excessive and his application for leave to appeal against sentence was refused. (8) It could not be said that the sentences of W and K were excessive in the circumstances. R's sentence was excessive having regard to his single conviction, his age of 60 years and his exemplary past character. The appropriate sentence was 16 years. (9) The agreement entered into between the Crown and H's counsel was inappropriate. The judge could not bind himself as to the hierarchy of the offenders. H's application for leave to appeal against sentence was dismissed.Judgment accordingly.

[2003] EWCA Crim 2488

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