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MULLEN and TURHAN MUSTAPHA, R v. [2000] EWCA Crim 36 (5th May, 2000)
Case No: 9800906X5 & 9801555X5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE KING
SNARESBROOK CROWN COURT.
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 5 May 2000
B e f o r e :
LORD JUSTICE MANTELL
LORD JUSTICE KAY
and
MR JUSTICE SACHS
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|
REGINA
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|
|
-V-
|
|
|
THOMAS
MULLEN
&
TURHAN MUSTAPHA
|
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- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr G Pringle (instructed by Hughmans for the Appellant, Mullen)
Mr C Baur (instructed by Hodge, Jones & Allen for the Appellant,
Mustapha)
Mr P Walsh (instructed for the Crown)
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE MANTELL:
Catherine Elizabeth Brooks is a known prostitute, an alcoholic and a drug
addict. In June 1996 she was living in a flat at 5A Reginald Road London E7.
On the evening of Wednesday 12th June 1996 she booked a cab to take her to the
City Airport. The police were watching her. She was stopped enroute and
arrested. In her bag was found 2.65 grams of powder containing cocaine. It
would have been worth about £400 on the street. She was taken to Plaistow
Police Station where a further 948 grams of powder containing heroin was
discovered in her vanity case. That had a value of about £147,000. She
also had an Irish ten punt note and a business card for bed-and-breakfast
accommodation in Dun Laoghaire, Dublin. She also had a Mercury one-to-one
mobile telephone. She was not fit to be interviewed.
Later that evening police officers searched her flat. They found a sports bag
in the loft which contained two plastic bags holding approximately four
kilograms of heroin with a street value of nearly £600,000. In the
kitchen were two rolls of brown masking tape similar to masking tape which had
been wrapped round the parcels containing the heroin. Wrapping paper identical
to that which been used to wrap the heroin inside Catherine Brooks' vanity case
was found in some rubbish sacks outside the flat.
At about 11.00 pm and while the search of Brooks' flat was still going on,
Turhan Mustapha arrived and tried to get in using some keys. He was thwarted
because the searching police officers had bolted the door from the inside.
When approached he denied having keys for the flat and gave a false name. The
keys in his possession did fit the locks of Brooks' flat. Mustapha was
arrested and taken to Plaistow police station. He, too, was relieved of his
mobile telephone.
Next day Mustapha was interviewed. He said that he knew Brooks as a
prostitute and had become her friend. His visit to the flat had nothing to do
with drugs and was merely to discuss another flat which he had found for her.
The same day Brooks was charged with two counts of possessing heroin with
intent to supply.
Mustapha was allowed to go but the prosecution of Brooks continued.
In the course of the continuing investigation it was discovered that Brooks
had made a number of trips to Dublin in the months of January, February and
March 1996. Sometimes she used her own name and sometimes the names "Price"
and "Jenkins". A booking for a flight to Dublin on 11th June returning 12th
June had been made in the name of a Miss A Price.
There were a number of voicemail messages left on Mustapha's mobile phone.
Several were in Turkish. Some, however, were in English and from a man called
`Thomas'. It was also established that Brooks had phoned Mustapha from Dublin
on at least two occasions.
All this led to Mustapha's re-arrest on 15th October 1996. He was at that
time in custody awaiting deportation. He was taken to Ilford police station
and interviewed. In the course of interview he said that he had heard of an
Irishman called Tom who wanted someone to act as a courier for heroin. He had
met Tom at a cafe in Harringay. He then introduced Tom to Brooks. This was in
January 1996. Thereafter Tom had phoned him from Ireland and Spain and met up
with him in London. It was because Tom had phoned him to say that Brooks had
not arrived in Dublin with heroin on the night of her arrest that he, Mustapha,
had gone to Brooks' flat. He gave the phone number of the butcher's shop where
he worked and said that he had phoned Tom from that shop.
In consequence of what Mustapha had said he was joined in the same indictment
with Brooks.
On 23rd October 1996 Brooks was re-interviewed. She said that she had been
Mustapha's girlfriend and had made trips to Ireland to pay off debts amounting
to £2000 which she owed Mustapha for heroin. She admitted having made
three trips using the names "Price" and "Jenkins". The heroin which she was
taking to Ireland was given to her by Mustapha.
On 6th December 1996 Brooks pleaded guilty to conspiring with Mustapha and
others to supply heroin. On 11th December she made a witness statement. In
that statement she described how she had been introduced to the man "Thomas"
and how arrangements had been made for her to transport heroin to Dublin. The
first trip had been a test run in January 1996. She had gone out by ferry but
had flown back. She described going out on the 3rd of March 1996 when a man
and a woman with a young child came to the hotel and gave her a bag full of
money which she later gave to Mustapha. Importantly, as will appear, she
described a third trip which had taken place towards the end of March. On this
occasion she said that the man Tom had arrived at her hotel with a bag full of
cash. She had been intending to go again on the 11th of June but had put off
the trip until the 12th, the day she had been arrested. Although she used the
sports bag which had been found in the loft at 5A Reginald Road she claimed to
know nothing about the four kilos of heroin. She denied having wrapped
them.
On 13th June 1996 a man called Thomas Mullen had been stopped by the Irish
police in Dublin. Mustapha's name "Turhan" and nickname "As" were found in
Mullen's personal organiser.
In March 1997 Thomas Mullen and a woman friend were seen to deposit a black
holdall at a depository in Hampstead. On 14th March Mullen collected the black
holdall and was stopped by police. The holdall contained over £100,000 in
cash. He was arrested for handling stolen goods and taken to Hampstead police
station. His safe deposit box was searched and found to contain a further
£90,000 in cash. Mullen declined to answer any questions when
interviewed.
The next day, 15th March 1997, at an identification parade Brooks picked out
Mullen as the man whom Mustapha had introduced to her as Thomas and whom she
had seen in Dublin.
A number of mobile telephones were found in Mullen's flat. It emerged that he
had made or had attempted to make one hundred and twelve calls to Mustapha
between 18th March and 19th June 1996. There was expert evidence that some of
the messages left for Mustapha on his mobile phone had been from Mullen.
Further investigations tended to show that although Mullen did not work he
nevertheless had a luxurious lifestyle. More than £500,000 had passed
through his accounts since 1992.
He was charged and joined in the same indictment as Mustapha.
In due course Brooks pleaded guilty to conspiracy to supply heroin and was
sentenced to three years and nine months imprisonment. A drug trafficking
confiscation order of £204.55p was made. She agreed to give evidence
against Mustapha and Mullen.
The trial of Mustapha and Mullen was fixed for 25th September 1997 at
Snaresbrook Crown Court. The trial judge was His Honour Judge King. An
objection was taken on behalf of Mustapha to the admissibility of the
interviews. They were ruled admissible whereupon Mustapha pleaded guilty to
conspiring fraudulently to evade the prohibition on the exportation of a
controlled drug namely heroin. Sentence was postponed to await the outcome of
Mullen's trial. In the course of Mullen's trial Brooks gave evidence. Whereas
in her witness statement Brooks had said that her meeting with the man "Tom" or
"Thomas" in Dublin had been at the end of March her evidence was that it had
been an earlier occasion in the same month. The deviation was not unimportant
because independent evidence showed that the only trip made by Brooks towards
the end of the month was on the 24th and 25th. On the night of 24th/ 25th
March Mullen had been in Spain. The jury failed to reach a verdict.
Although Mullen had little by way of criminal record he was, it seems,
regarded as a major criminal by the Irish police. He was considered to be a
drugs baron and a dangerous man with dangerous accomplices. Consequently there
had been an application at the start of the trial for Mullen to be handcuffed
in the dock and during the time when he was giving evidence. In spite of Mr
Pringle's protestations the judge allowed the application and accordingly
Mullen was handcuffed to a prison officer throughout his trial.
Mullen's retrial took place between 5th and 15th January 1998. Once again it
was at Snaresbrook Crown Court and once again the trial judge was His Honour
Judge King. Mr Pringle who appeared for Mullen invited the judge to recuse
himself in view of what was perceived to be the judge's antipathy towards
Mullen during the previous trial. The application was refused. No further
protest was made with regard to the handcuffs as Mr Pringle considered that
inevitably the judge would abide by his earlier ruling. Consequently, during
this trial also, Mullen was handcuffed to a prison officer. In the course of
the trial evidence was given in accord with the background and facts already
recited and from Catherine Brooks to similar effect as in the earlier trial.
Once again there was the apparent discrepancy between what she had said in the
witness statement and what she was to say on oath. Her explanation was that
she had been confused. Mullen gave evidence himself presumably to the same
effect as in the earlier trial. He suggested that the Irish police held a
grudge against him as a result of his evidence being instrumental in securing
the acquittal of a friend charged with robbery. He admitted having access to
large sums of money but declined to say where it came from, the clear
implication being that it resulted from some criminal offence other than drug
dealing. He explained his connection with Mustapha as being entirely to do
with money changing. He had indeed met Brooks in London but not, as she had
claimed, with a view to engaging her as a courier. He denied meeting her in
Dublin and gave unchallenged evidence of alibi for the night of 24th/25th March
1996.
He was convicted and sentenced to eighteen years imprisonment.
On 11th February 1998 Mustapha was sentenced to sixteen years imprisonment.
Following a hearing which took place on 21st December 1998 His Honour Judge
King made a confiscation order against Mullen under the Drug Trafficking Act
1994. He was ordered to pay £1,023,863.62p within twelve months or serve
an additional six years imprisonment in default.
Mullen has appealed against conviction with leave of the full court. He also
appeals against his sentence of eighteen years imprisonment with leave of the
single judge and against the confiscation order with leave, if necessary, of
this court. Mustapha has leave from the single judge to appeal against his
sentence. The hearing of both appeals took place on 10th March when the court
indicated that Mullen's appeal against conviction would be dismissed but
reserved its reasons and took time to consider both appeals against sentence.
The delay in handing down judgment has been due to difficulties in
reconstituting the court.
We first of all give our reasons for dismissing Mullen's appeal against
conviction. Before turning to the grounds, however, we would like to pay
tribute to Mr Pringle for the economy and brio with which they were presented.
Handcuffs.
This is the ground upon which the full court gave leave. It is true that no
objection to handcuffs was taken at the second trial. However, we agree with
Mr Pringle that there is no reason to suppose that the judge would have
reversed his earlier ruling. As to whether or how a defendant is to be
restrained during his trial is a matter which falls within the judge's
discretion but the principle in general must be that unless there is danger of
escape or violence the defendant ought not to be handcuffed or otherwise
restrained in the dock or, it goes without saying, in the witness box. (See
R -v- Vratsides (1998) CLR 251) Usually there are other means of
protecting the public and preventing escape which involve less risk of
prejudice to a defendant. In an appropriate case and with proper authority it
may be sufficient to have covertly armed police officers on duty in the court
building itself though we hasten to say that that was not something which was
ever suggested in the present case. It is possible, in some instances, to hold
the trial in a courtroom where there is a specially protected dock. That was
suggested in this case but would have involved transfer to another court centre
and the postponement of the trial. We would not criticise the Judge for
rejecting that suggestion. Nevertheless the question remains as to whether
handcuffs were necessary on the information available to the Judge. The judge
had before him all the material contained in the trial documents and of course,
although not admissible in the trial, he had the interview of Turhan Mustapha.
He was properly able to conclude, therefore, that Mullen may have been a major
trafficker in drugs. He had the information from the Irish police, no doubt
derived from informers, that Mullen was a high ranking Dublin criminal with
powerful and dangerous connections. As much could be assumed from Mullen's
own evidence. There was also an incident when Mullen's brother had attempted
to enter the court building carrying a bag with cutlery which the judge
reasonably enough suspected to be an attempt to test out the security
arrangements. Against that Mr Pringle submits that the sources from which all
this information came were themselves dubious and that there was nothing in
Mullen's criminal record to support the contentions which were being put
forward. He produced a statement from the prison officer to whom Mullen had
been shackled who thought that the precaution was unnecessary. It may be that
other judges, perhaps including members of this court, would have taken a
different course but having regard to all the matters to which we have referred
we find it impossible to say that the judge was wrong to exercise his
discretion as he did. That, of course, is not the end of the matter in such a
situation everything possible must be done to minimise the risk of prejudice.
In the course of ruling His Honour Judge King said,
"I shall of course be at considerable pains to explain to the jury that they
should infer nothing adverse to your client as a result of him being handcuffed
and that is, in effect, routine. So that hopefully will allay any disquiet
that might otherwise exist in the minds of the jury."
True to his word, in summing up the judge said of the appellant,
"He has throughout stood his trial shackled to a prison officer by a handcuff
and that of course included the time which may have been uncomfortable for him
when he was in the witness box. I am sure, as fair minded people, you would
never dream of holding against him the fact that he has for security reasons
but largely the routine nature been required to be handcuffed during his trial
and as I said to you at the outset of the proceedings please do not infer
anything adverse to him be reason of that fact. Its a matter that you should
and I am sure as fair minded people will ignore, it cannot assist you in coming
to a decision one way or the other upon the issues in this case."
In saying that it seems to us that the judge did all that was possible by way
of damage limitation. We also bear in mind that on his own account in the
witness box the appellant was close to dangerous criminals which might of
itself provide a sufficient justification in the eyes of the jury for the use
of handcuffs. In our view, the use of handcuffs does not render the verdict
unsafe.
Evidence of Catherine Brooks.
This ground has two limbs. The first limb relates to the quality of Catherine
Brooks' evidence. It is said that she was an inherently unreliable witness
because of her addiction to drugs and strong drink. Moreover her evidence was
inconsistent and confused and Mr Pringle points, in particular, to the
discrepancy between what she had said in her witness statement and the evidence
given at each of the two trials. He says it is small wonder that she performed
better on the second occasion having had notice of what was coming. Although
Mr Pringle made an unsuccessful submission of no case in the first trial he did
not repeat that submission in the second. It must be, therefore, that his
complaint is that the judge should have stopped the trial of his own motion.
We cannot agree. Mr Pringle accepts that the credibility of a witness is
essentially a matter for the jury. Although Catherine Brooks was vulnerable on
the difference between her witness statement and her evidence in court her
account was in all other respects coherent and plausible. The appellant
himself admitted having been introduced to Brooks by Mustapha. To that extent
her identification of the appellant was not challenged. The question for the
jury was simply; was she truthful and reliable when she said that she had met
Mullen in Dublin on an occasion when he had given her money. That would have
to be considered in the light of the contents of her witness statement and the
appellant's alibi for 24th/25th March. But it was, we consider, a matter
entirely for the jury. And the appellant did not have to contend only with the
evidence of Catherine Brooks. There was the evidence of the withdrawal from
the safe deposit of something over a £100,000 in cash which coupled with
the frequent telephone calls between the appellant and Mustapha lent strong
support for Catherine Brooks' assertion that the appellant was buying drugs on
a substantial scale. In our view it is quite impossible to support the
contention that judge should have intervened to stop the trial.
The second limb of this ground is that given it was proper to leave the matter
to the jury, the judge's summing up of Catherine Brooks' evidence did not
sufficiently reflect its inconsistencies and weaknesses. At p.21 of the
transcript the judge drew attention to Miss Brooks' "chequered past" and
mentioned her numerous previous convictions and her involvement with drugs. He
reminded the jury of what had presumably been part of Mr Pringle's submission
that she might have motives of her own for telling lies. In particular he
mentioned the suggestion that she was giving evidence simply to achieve a
lesser sentence for herself. Then between pages. 38 and 54 the judge reviewed
her evidence in chief and cross examination. It appears to us to have been a
fair and balanced account. At p.53 he specifically drew attention to the
differences between her written statement and evidence in the first and second
trials. In our judgment the complaint that the judge failed to deal properly
or fairly with her evidence is simply not made out.
Recusal.
It seems that the Appellant and, indeed, Mr Pringle also were not entirely
satisfied with the manner in which His Honour Judge King had conducted the
first trial. Insofar as he had ruled as he did with regard to handcuffs and
rejected the submission of no case that is hardly surprising. His Honour Judge
King did not reserve the retrial to himself but it so happened that he found
himself deputed to try it. Mr Pringle asked him to transfer the case to
someone else. We look to the transcript. Mr Pringle said,
"Yes, well I am formally asking, I hope without causing any offence at all, for
you to disqualify."
The judge responded:
"It does not accord me any offence and I fully understand the nature of your
submission. I have, as you know, conferred with the senior resident judge of
this court as well as the listing officer on earlier occasions concerning the
listing of this matter and as I said once before during argument I am content
it should be tried by another judge subject to another judge appropriately
being available. That would seem not to be so and so the matter finds itself
before me once more."
Although Mr Pringle has mentioned some authorities which he suggests support
the proposition that a retrial should always be conducted before a different
judge we do not find that principle to be established either by the authorities
mentioned or by what from our experience we know to be the usual practice.
There may be occasions when it is very desirable that a different judge should
preside over a retrial. There are other circumstances in which it is plainly
desirable that the same judge should be engaged as where, for example, there is
a great deal of pre-trial preparation to be done. In our view it would be
unhelpful to lay down any general principle. Rather we think it is something
which can left to the good sense of judges. So far as the present case is
concerned we recognise no valid criticism of His Honour Judge King's refusal to
stand down. It is only fair to remark that Mr Pringle did not put this ground
in the van of his submissions.
For those reasons the appellant Mullen's appeal was and is dismissed.
We now consider Mullen's and Mustapha's appeals against sentence of eighteen
and sixteen years, respectively.
Mullen.
There is nothing of relevance in Mullen's record. He fell to be sentenced for
being involved in a conspiracy to export heroin to Ireland. The overt acts
involved three transportation's each of one kilogram of heroin of approximately
43% purity. That represented a total street value in Ireland of upwards of
£150,000 pounds. The judge was entitled to regard Mullen as one of, if
not, the principal organisers. A substantial sentence was inevitable.
However, we consider that eighteen years was manifestly excessive. In our view
the proper sentence would have been one of fifteen years imprisonment and
accordingly we quash the sentence of eighteen years and substitute one of
fifteen years. To that extent the appeal against the sentence of imprisonment
is allowed.
Mustapha.
Mustapha had a previous conviction for importing heroin for which he had
received a sentence of eleven years. Although he was entitled to some credit
for his plea of guilty it came late in the day and only after an adverse
ruling. However having regard to what we consider to have been the proper
sentence for Mullen we quash the sentence of sixteen years and replace it with
one thirteen years imprisonment. To that extent Mustapha's appeal against
sentence is allowed.
Confiscation.
We have mentioned the fact that in the appellant Mullen's case the judge made
a confiscation order in excess of £1,000,000 and imposed a default term of
imprisonment of six years. Mr Pringle submits that in so doing the judge was
acting unlawfully in that the amount of the confiscation order was far in
excess of what the judge had found to be Mullen's realisable assets. We
consider that Mr Pringle's submission is based on a misunderstanding of what
the judge had found and a misconception as to what the law is. By Section 5(1)
of the Drug Trafficking Act 1994 the court first has to assess the value of the
defendant's proceeds from drug trafficking. The judge heard evidence which did
not include any from the appellant save in so far as he had given evidence in
his own behalf during the trial and found that the proceeds of drug trafficking
were £9,100,000. That finding is not attacked. By Section 5(3) of the
Act the court may make a confiscation order in a lesser sum than the value of
the proceeds if it finds that the realisable assets are less than that figure.
It is for the defendant to satisfy the court that the amount realised was less
than the amount of the proceeds, see R -v- Llsemann (1990) 12 CAR (S)
398. In the event Mr Pringle did satisfy the judge that the realisable
assets were less than the proceeds of drug trafficking. It was found that the
profit element to appellant was £2,210,000. The judge then went on to
find on the evidence that £1,023,863.62 had passed through the appellant's
hands during the five years prior to his arrest on the 14th March 1997. He
found that sum represented the appellant's realisable assets and at one time,
or so it appears from the transcript, Mr Pringle was not disputing that figure.
The judge did not find, as Mr Pringle seems to think, that the realisable
assets were £175,000: £175,000, being what was left of the cash
recovered on the appellant's arrest, was the amount of the known or traceable
realisable assets. The court is by no means limited to a confiscation order in
the amount of traceable or known assets. As Lord Lane Lord Chief Justice said
in R -v- Dickens (1990) 91 CAR 164, at p.167.
"The provisions are intentionally draconian since the amount of those proceeds
in the size of his realisable assets at the time of the conviction are likely
to be peculiarly within the defendant's knowledge, it is not surprising perhaps
if evidential burdens are cast upon him of a kind which are, to say the least,
unusual in the area of criminal law and this, despite the fact that the
confiscation order and the penalties for failing to comply with it may be
rigorous."
In this case the appellant had given evidence at trial that he had access to
very considerable sums of money indeed. The burden lay upon him to show that
his realisable assets were less than the proceeds of drug trafficking. He
chose, for good reason or ill, not to give evidence. We can find no error in
the approach adopted by the judge or anything to condemn in his eventual
finding. The confiscation order will stand as will the term of imprisonment in
default.
MR PRINGLE: My Lord, two small matters. First, may I ask you, with every
expectation of refusal, to consider certifying a question as to whether or no a
man with no proven record for escape or for violence can receive a fair trial
if handcuffed? I am expecting you to say you will not certify such a
question.
LORD JUSTICE MANTELL: Well, I would have to ask the members of the court.
MR PRINGLE: I need to exhaust my remedies.
LORD JUSTICE MANTELL: Yes. Is there any other question you wish us to
certify?
MR PRINGLE: No, I think I have, I accept, spectacularly lost on the Drug
Trafficking Act matter so it is on the handcuffs that I ask you to certify.
LORD JUSTICE MANTELL: We would not wish to disappoint you Mr Pringle. We
decline to certify.
MR PRINGLE: My Lord. It is said that the definition of Chutzpah is the man who
murders his parents and then claims mitigation as being an orphan. My next
application may surprise you. It is an application----
LORD JUSTICE MANTELL: I doubt it Mr Pringle.
MR PRINGLE: It is an application for costs. Your Lordships will remember that
when I last appeared before your Lordships I did not have the faintest idea who
was instructing me. I thought I was probably instructed by the Registrar
although I might have been instructed pro bono by a private solicitor
and the problem that arose arose from the fact that I was privately instructed
at trial and retrial although not properly paid on the retrial because the
moment the retrial ended the police officer who sits behind me here,
immediately, and I will not use the word purloined, immediately lawfully
appropriated all the monies remaining from the briefcase and paid them into the
Magistrates Court where they stayed. That meant that there was a hiatus in as
much as my solicitors and myself were not paid at all for the duration of the
preparation of this appeal.
Leave was originally granted by the single judge on the grounds of -- on
the sentence matter. Now it may be a Pyrrhic victory that my 24-year-old
client's sentence has gone down from 24 years to 21 years, but I have won, to a
limited extent, on the ground of appeal for which leave was given at a time
when I was notionally privately represented. Then matters proceeded until just
before the hearing of the actual appeal when the Registrar took over saying
that he could not help my solicitors break the Gordian knot as to where the
money was and who was to be paid, but that in the interests of justice if Mr
Mullen was to be represented then he (the Registrar) would instruct me for the
appeal. That meant that all work done between the conviction and the granting
of legal aid by the Registrar was effectively unpaid. That was at the time
when leave had been granted for an appeal against sentence which has now
succeeded and so I ask for costs in relation to the appeal against sentence so
that my instructing solicitors and myself might have some small pittance for
that period. If you were to ask me to quantify I would but I would like you to
decide in principle as to whether or not you think it is appropriate when you
win on part of the appeal that you get part of your costs?
LORD JUSTICE KAY: From where?
MR PRINGLE: From my own pocket as a taxpayer. From central funds.
LORD JUSTICE KAY: It is all very well us saying you can get costs but we have
to say where you get costs from.
MR PRINGLE: From central funds, my Lord.
LORD JUSTICE MANTELL: It would be quite wrong that you should go unrewarded for
your efforts, Mr Pringle.
MR PRINGLE: I will be rewarded to some extent from when the Registrar
intervened.
LORD JUSTICE MANTELL: You are privately instructed but you say funds are not
available to the your client from which----
MR PRINGLE: The High Court sequestered the money that was in the safe deposit
box saying that the defendant could not have the money but he could pay for his
legal costs. That is what happened in the first trial and it is what happened
for half of the second trial. After the conviction, despite the fact that His
Honour Judge King said that he -- he did not disagree, he said that the High
Court Order should be obeyed -- after the second trial although the Crown and
the Crown Prosecution Service were on notice that there was an active appeal
against conviction, the officer who had control of the bank account paid the
money into the Magistrates Court with a view to settling the DTOA monies.
LORD JUSTICE MANTELL: The upshot is that your client, albeit that at one time
he had money, is now without funds.
MR PRINGLE: He is absolutely without funds and that is why he is doing another
six years. He is without----
LORD JUSTICE MANTELL: We will not get into that.
MR PRINGLE: He is without visible funds. He is certainly without funds that he
was going to give my solicitors or me and so----
LORD JUSTICE MANTELL: That runs counter to the finding of the judge that he has
realisable assets in a certain amount in excess of those sums which have been
sequestered. That is the basis, I suppose, upon which this court must approach
it. I suppose the moral might be "get payment on account".
MR PRINGLE: Except, my Lord, with respect - and I do not want to detain the
court - that does not meet head-on the argument that he has won part of his
appeal. The last thing I want----
LORD JUSTICE MANTELL: That is a separate question. The question is should he
have his costs in relation to that part of the appeal where he has
succeeded?
MR PRINGLE: Well, he should, but I do not want it to be paid to him as it will
go straight off to the Magistrates Court again. I wanted it to be paid to my
solicitor and me. So he should have his costs to be paid to my solicitors on
that part of the appeal.
LORD JUSTICE KAY: There is no power to make such an order, is there?
MR PRINGLE: Why not, with respect?
LORD JUSTICE KAY: The only costs that can be recovered are costs that he
properly incurred. He incurred. Unless he agreed to pay you some sum or
agreed to pay you reasonable remuneration in advance, which as I understand it
did not happen, he was not in a position----
MR PRINGLE: He did agree to pay reasonable remuneration----
LORD JUSTICE KAY: For this work?
MR PRINGLE: For this work. Because the High Court had said that he could have
his legal costs out of what was left in the safe deposit box. Then when he
could not get at that we entered into a lacuna. So he agreed to pay from
monies that the High Court said that he could have access to for his legal
services, but then when he could not get access to it we then hit the log jam
that the Registrar had to sort out later on. So he agreed to pay but cannot
pay from monies that he was----
LORD JUSTICE MANTELL: Cannot or will not, I think we have to say.
MR PRINGLE: He cannot pay it from the money that has been paid into the
Magistrates Court because he cannot get access to it.
LORD JUSTICE MANTELL: The judge has found and been upheld in his finding that
he has money over and above the sums which were paid into the Magistrates Court
and it is out of those sums that the court is likely to find that he has the
ability to fulfil his obligations to you and your solicitors.
MR PRINGLE: With respect, my Lord, the argument is now becoming
circular. That does not meet the issue of whether or not he is entitled to
his costs on the bit of the appeal he has won on and I am applying for his
costs as a privately instructing or notionally privately instructing defendant
or appellant. I am applying for his costs on that portion of the appeal that
he has won on.
LORD JUSTICE MANTELL: Let us hear----
MR PRINGLE: I have given up, with respect -- my Lord, I did not mean to
interrupt you. I have given up on the second half of the trial and most other
aspects. This is just been a veil of tears this case. A small something seems
to me to be within the power of the court.
LORD JUSTICE MANTELL: It is a very unusual situation Mr Pringle. Speaking for
myself I certainly have not come across it before.
MR PRINGLE: Nor I, and I pray never again.
LORD JUSTICE MANTELL: Mr Walsh, can you help on this at all?
MR WALSH: My Lord, I am afraid I did not know about this part of the
application until my learned friend stood up and made it. I hope the Crown can
be forgiven for taking a fairly cynical view of his assets and ability to pay.
The learned judge found that he had benefited in excess of £9 million.
LORD JUSTICE MANTELL: Let us go straight to the point upon which Mr Pringle
chiefly relies and that is that he has won to the extent that sentence has been
reduced from 18 years to 15 years. Should he have some costs from somewhere on
that? Certainly not of course against you.
MR PRINGLE: That is not the application.
MR WALSH: I am grateful. My Lord, in principle I would agree with that
submission. Quantifying it would be a much more complicated task.
LORD JUSTICE MANTELL: It occupied a very, very small part of the appeal.
MR WALSH: Yes.
LORD JUSTICE MANTELL: The application for costs is taking a substantial time.
We shall retire.
- - - - - - -
LORD JUSTICE MANTELL: Mr Pringle, have you got legal aid now?
MR PRINGLE: I am assigned by the Registrar for the purposes of the last hearing
and I take it for today.
LORD JUSTICE MANTELL: Yes. We think the appellant should have a defendant's
costs order in relation to the work connected with the appeal against the
sentence of imprisonment.
MR PRINGLE: Thank you, my Lord, and solicitors and counsel?
LORD JUSTICE MANTELL: Costs will be assessed.
LORD JUSTICE KAY: There would not be any solicitors, would there?
MR PRINGLE: There were.
MR JUSTICE SACHS: What did they do?
MR PRINGLE: They spoke to me on a weekly basis for about an hour and a half a
week.
LORD JUSTICE KAY: About the sentence of imprisonment? Give us some flavour of
what these conversations were.
MR PRINGLE: My Lords obviously the conversations were more about the
application against conviction. I accept that the appeal against sentence, as
your Lordships have rightly pointed out, played a small part. Can I leave it
that we approach the taxation authorities?
LORD JUSTICE MANTELL: Yes.
© 2000 Crown Copyright
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