Summary of Court of Appeal (Criminal Division) Opinion

Factual and Procedural Background

On 9 December 2022, at the Crown Court the Appellant, then aged 41, was convicted of possession of Class A drugs (heroin) with intent to supply and sentenced to 13 years 6 months' imprisonment. The Appellant sought extensions of time (580 days for conviction; 323 days for sentence) for leave to appeal following refusal by the Single Judge. Police executed a search warrant at a flat on 9 February 2022 and found locked storage under the eaves containing heat-sealed packages totalling 45 kg of heroin. The key was in a disguised safe in a wardrobe. CCTV and phone/ANPR analysis showed the Appellant and the Co-accused moving boxes from a BMW into the block of flats on 9 February. The Co-accused was arrested on 10 February; the Appellant was arrested on 9 April after arriving from overseas and being identified from CCTV and telephone analysis.

The prosecution case was that the Appellant and the Co-accused each had possession with intent to supply; the Appellant accepted he was the person on CCTV but maintained he did not know the contents of the boxes and had been assisting a contact (referred to in the trial material) in moving belongings. The Co-accused gave a different account, also denying knowledge of illicit contents. Both ran mutually antagonistic ("cut-throat") defences and applied to adduce bad character evidence against one another. The jury convicted both defendants. On sentencing the judge found the operation to be of the highest commercial seriousness, took the harm as falling in the top category, and imposed the sentences described above. The Appellant then applied for extended time to seek leave to appeal conviction and sentence; those applications form the subject of this opinion.

Legal Issues Presented

1. Whether leave to extend time should be granted for an appeal against conviction and sentence given the delay (580 days for conviction; 323 days for sentence).
2. Whether there is any arguable ground to challenge the safety of the Appellant's conviction (including arguments of a "lurking doubt" and alleged insufficiency of evidence of knowledge and intent).
3. Whether the sentence imposed was wrong in principle or manifestly excessive, taking account of the Appellant's role, quantity of drugs and previous offending.
4. Whether admission of the Appellant's previous conviction as bad character evidence was improper or prejudicial.

Arguments of the Parties

Appellant's Arguments

• The only direct evidence of involvement was CCTV of him carrying boxes; there was insufficient evidence to establish knowledge of illicit contents or intent to supply.
• The Co-accused was falsely seeking to blame him; the prosecution failed to prosecute the principal dealer shown in other messages and therefore "set me up."
• At worst, the prosecution should have charged simple possession, not possession with intent to supply.
• Admission of his previous conviction in Germany was wrongly adduced and served only to prejudice the jury.
• He referred to case law principles including the notion of a "lurking doubt" about conviction safety.

Respondent's Arguments

• Counsel for the Crown and trial counsel responded that there was no basis to limit the offence to simple possession given the evidence and circumstances.
• Admission of the Appellant's previous conviction arose from the cut-throat defence dynamic and was properly admitted; it was the consequence of the Appellant's and Co-accused's trial strategy.
• Trial counsel averred the Appellant had a fair trial, no erroneous rulings occurred, and there was no basis to doubt the safety of the conviction.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court reviewed the evidence and submissions and concluded there was no arguable ground of appeal. It relied on the combination of direct and circumstantial evidence (CCTV, telephone and ANPR analysis, physical evidence in the storage area and the key location, and related materials) as providing a strong basis for the jury to be sure the elements of possession with intent to supply, including knowledge and intent, were established. The court explained that admission of the Appellant's bad character evidence was the inevitable consequence of the cut-throat defence he and the Co-accused ran, and that the trial judge gave appropriate directions on the relevance of the Third Party. On sentence, the court accepted the sentencing judge's application of the relevant guideline: the harm was in the highest category given the quantity (45 kg) and the commercial scale, the Appellant played a significant role, and a substantial uplift was required to mark quantity and previous serious offending. The court found no arguable challenge to the sentence.

Holding and Implications

LEAVE TO EXTEND TIME IS REFUSED in respect of both the application to appeal the conviction and the application to appeal the sentence.

Implications: The practical consequence is that no extended-time appeals will proceed; the convictions and sentences remain in effect. The court indicated no basis for doubting the safety of the conviction and no arguable error in sentencing; no new legal precedent was established by this decision.