Smart & Anor v REGINA

Factual and Procedural Background

The appellants, referred to as Appellant A and Appellant B, were convicted at a Crown Court before Judge Jacobs and a jury for conspiracy to supply controlled drugs. Appellant A was convicted of conspiracy to supply cannabis resin and cocaine, as well as possession counts involving ecstasy tablets. Appellant B was convicted of conspiracy to supply cannabis resin. Sentences were imposed accordingly, with Appellant B receiving nine years imprisonment and Appellant A receiving concurrent sentences totaling six years. Several co-defendants were involved, including a principal conspirator who pleaded guilty and received a lengthy sentence. Both appellants appealed their convictions, with Appellant B also renewing an application to appeal his sentence following refusal by a single judge.

The Crown's case centered on a large, well-organized criminal enterprise distributing Class A and B drugs in South Wales, orchestrated by the principal conspirator. The operation involved multiple individuals who acted as distributors, couriers, and facilitators. The evidence included seized drugs, recorded conversations, and extensive documentation evidencing drug dealing activities.

Legal Issues Presented

1. Whether the evidence relating to conspiracy to supply cocaine was admissible against Appellant A and whether the cocaine count should have been withdrawn from the jury.
2. Whether the evidence was sufficient to support the convictions for conspiracy to supply cannabis resin and possession with intent to supply ecstasy tablets.
3. Whether evidence derived from co-conspirator documents and recorded telephone conversations was admissible against Appellant B.
4. Whether the covertly recorded telephone conversations (DAT tapes) obtained without a warrant were admissible under the Interception of Communications Act 1985.
5. Whether adverse inferences drawn from Appellant B's refusal to answer questions in police interviews were properly directed and lawful under the Criminal Justice and Public Order Act 1994.
6. Whether the sentence of nine years imposed on Appellant B was manifestly excessive in light of the evidence and relevant sentencing principles.

Arguments of the Parties

Appellant A's Arguments

• The cocaine conspiracy count lacked admissible evidence and should have been withdrawn at the close of the Crown's case.
• The acts and statements of the principal conspirator were inadmissible or too speculative to support the cocaine conspiracy charge.
• The possession of five ecstasy tablets was insufficient to establish intent to supply.
• The expert evidence regarding typical ecstasy consumption was inadmissible hearsay.
• If the cocaine count was withdrawn, the cannabis resin conviction would be unsafe due to prejudicial evidence.

Appellant B's Arguments

• The documents derived from the principal conspirator were inadmissible as they did not satisfy the required legal criteria for acts or declarations in furtherance of the conspiracy.
• Evidence relating to two other individuals was irrelevant and should have been excluded.
• The covertly recorded telephone conversations (DAT tapes) were inadmissible under the Interception of Communications Act 1985, as no appropriate warrant was obtained.
• The jury should not have been permitted to draw adverse inferences from Appellant B's refusal to answer police questions, particularly given solicitor advice and the inability to present that advice fairly to the jury.
• The sentence of nine years imprisonment was manifestly excessive compared to other sentences and relevant authorities.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed analysis of the admissibility of evidence derived from the principal conspirator's acts and documents against both appellants. It applied the established three-limb test for co-conspirator statements: (i) made by a conspirator, (ii) made in furtherance of the conspiracy, and (iii) supported by further evidence admissible against the accused.

For Appellant A, the court found that the documents and recorded conversations constituted acts or declarations made in furtherance of the conspiracy, satisfying limbs (i) and (ii). It rejected the narrow interpretation that the further evidence must specify the particular drug involved, holding instead that evidence of a general conspiracy to supply drugs sufficed to admit acts or declarations relating to specific drugs, including cocaine. The court emphasized the purpose of the principle to allow the jury to understand the scope and object of the conspiracy once there is direct evidence of agreement. Consequently, the cocaine conspiracy count was properly left to the jury, and Appellant A's appeal on this ground failed.

Regarding the possession of ecstasy tablets, the court found that despite the small quantity, the surrounding evidence, including records indicating pill sales, supported an inference of intent to supply. The court also rejected hearsay objections to expert evidence on typical ecstasy consumption, noting no such objection was raised at trial and that the evidence was based on observation.

For Appellant B, the court held that documents and telephone conversations derived from the principal conspirator were admissible as acts or declarations in furtherance of the conspiracy. The court found no basis to exclude such evidence under section 78 of the Police and Criminal Evidence Act 1984 or Article 6 of the European Convention on Human Rights. It also rejected challenges to the admissibility of covertly recorded telephone conversations, concluding that the recording device did not intercept communications within the meaning of the Interception of Communications Act 1985, as it recorded speech before transmission over the public telecommunication system. Consequently, the evidence was admissible.

The court considered the adverse inferences drawn from Appellant B's refusal to answer police questions. It found that the judge's directions to the jury were appropriate and sufficiently explained the legal principles, including the effect of solicitor advice. Although a minor slip in wording was noted, it did not render the conviction unsafe. The court distinguished the facts from those in the European Court of Human Rights decision cited, concluding the directions were fair and adequate in context.

On sentencing, the court reviewed the extensive evidence of Appellant B's involvement in a large-scale conspiracy, including documentation of drug quantities and financial accounts. It found the sentencing judge was well placed to assess culpability and that the nine-year sentence was within the appropriate range, consistent with relevant authorities and the sentences imposed on co-defendants. The court rejected submissions that the sentence was manifestly excessive.

Holding and Implications

The court DISMISSED the appeals against conviction of both Appellant A and Appellant B, concluding that the evidence was properly admitted and sufficient to support the convictions. The court REFUSED Appellant B's application for leave to appeal against sentence, holding the nine-year term appropriate given the scale and nature of the conspiracy and the appellant's role.

The decision confirms the application of established principles regarding co-conspirator statements and the admissibility of evidence derived from conspiratorial documentation and intercepted communications. It underscores that acts or declarations made by one conspirator in furtherance of a conspiracy may be admitted against another conspirator once there is some direct evidence of agreement, without requiring that the direct evidence specify every detail of the conspiracy. The ruling also clarifies the interpretation of interception under the Interception of Communications Act 1985 in relation to covert recording devices.

No new precedent was established beyond the application of existing legal principles. The direct effect is the affirmation of the convictions and sentence, maintaining the integrity of the trial process in complex drug conspiracy cases.