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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Pepper, R. v [2010] EWCA Crim 2136 (02 September 2010) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2010/2136.html Cite as: [2010] EWCA Crim 2136

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		2 September 2010

1. LORD JUSTICE RICHARDS: The court has before it a number of appeals against conviction or sentence in respect of an offence of conspiracy to evade the prohibition on the importation of goods, namely cocaine. Marcee Pepper and Alexander Range were convicted on 14 July 2009 after a trial at Manchester Crown Court before HHJ Hammond and a jury. In the case of Pepper the verdict was by a majority of 10 to 1, in the case of Alexander Range it was unanimous. They were sentenced on 3 September 2009 to 10 years' imprisonment and 8 years' imprisonment respectively. They each appeal against conviction with leave of the single judge. Christopher Range (Alexander's brother) and Adam Hine had previously pleaded guilty to the offence on re-arraignment at the same court. On 3 September 2009 they were sentenced to 17 years' imprisonment and 14 years' imprisonment respectively. They each appeal against sentence, again with leave of the single judge.

1. There were a number of other co-accused. Daniel Paul was convicted after trial and sentenced to 6 years' imprisonment; Rebecca Edmonds pleaded guilty and was sentenced to 10 years' imprisonment; David Paul pleaded guilty and was sentenced to 9 years' imprisonment; Michelle Pennington was acquitted by direction of the trial judge.

The facts

2. The prosecution case was that the appellants were members of a team involved in the smuggling of cocaine into this country from the Caribbean. The indictment covered the period February 2007 to May 2008, although it was alleged that other trips were made outside this period. There was alleged to be evidence of three actual or attempted importations, with Edmonds travelling on each occasion with another person to and from the Caribbean. In August 2007 she travelled to Trinidad and Tobago with a man called Dennis Krisko; in January 2008 she travelled to St Lucia with Hine; in May 2008 she travelled to the same destination with David Paul. On their return from that last trip, on 9 May, they were intercepted and arrested at Manchester Airport and were found to be carrying in their suitcases a total of approximately 10kg of cocaine at 61 per cent purity, the equivalent of just over 6kg at 100 per cent purity and with an estimated street value of some £874,000. On arrival Edmonds immediately sent a text message to Christopher Range, Hine and Pennington saying they had landed. Hine was waiting in the arrival lounge. He had come to the airport in a car hired by Pepper in her own name on 25 April.
3. The prosecution contended that Christopher Range played the leading role in the conspiracy and was responsible for the payments and arranging the trips. He was living at the time with Pepper who was alleged to have known of his involvement in the importation of cocaine and to have assisted him. When their home was searched a sum of almost £15,000 was found beneath the mattress of their bed and a further £945 was found in their bedside cabinet. A sample of the notes revealed unusually high traces of heroin and cocaine. Pepper herself was alleged to have made various relevant money transfers and to have hired the car used by Hine in connection with the conspiracy. Her mobile phone, the number of which ended 045, was said to establish a link with the conspirators. The phone had been used to make two short calls to Hine while he was at the airport on 9 May, as well as one call that did not get through, and the number was provided by her as the contact number in relation to the hire of the car used by Hine on that occasion; and the same number had been given to a travel agency on 5 January 2008 as a contact number in relation to a booking for a trip made by Edmonds to the Caribbean. There was also general lifestyle evidence. Apart from the cash already mentioned, bank documents showed that Pepper had ready access to a large amount of cash. A credit card statement in her name also showed frequent expenditure on travel, holidays and car rental, despite the fact that she was on income support.
4. Pepper's defence case was, in summary, that she had no knowledge of Christopher Range's involvement in drug dealing. He frequently travelled abroad without her and often ran out of cash which necessitated her sending him money. For much of the time they had lived separately and had only resumed cohabitation as a result of her pregnancy with their youngest child. The 045 mobile phone had been used mainly by him; she had her own separate mobile phone. She gave an innocent explanation for the car hire.
5. The prosecution case against Alexander Range was that he had made a money transfer and undertaken a trip which, inferentially, were in connection with the conspiracy. He sent £753 to his brother Christopher in Mexico on 9 February 2008 and he had undertaken a trip of his own with Hine to Los Angeles and Mexico in March 2008, during which he received money transfers from his brother, Christopher. The trip was similar to the one made by his brother and Hine 6 weeks earlier.
6. Alexander's defence case was that he had nothing to do with the conspiracy and there were legitimate reasons for the money transfers and for the trip to the USA and Mexico.
7. The relevant issue for the jury was whether they could be sure that Pepper and Alexander Range were involved with the others in the conspiracy as alleged.
8. With that introduction we can turn to the specific grounds of appeal against conviction.

Pepper's appeal

9. There are three grounds of appeal in Pepper's case. First, that the judge failed adequately to sum up the defence case; secondly, that there were excessive and unfair interventions by the judge in the course of her evidence; and thirdly, that the judge failed to direct the jury in relation to the evidence of cash and lifestyle. The single judge granted leave only on ground 1. He referred ground 2 to the full court, being unable at that time to reach a decision on it because he did not have the transcript of Pepper's evidence. Ground 3 is new, added by late amendment, and leave is required in relation to it.

Ground 1

10. Mr Sidhue submits that the case against Pepper was founded on six principal areas of evidence, all of which were contentious, namely the nature of the relationship with Christopher Range and her knowledge of his criminal activities; her use of a mobile phone; the reason for her acquisition and use of a hired car; lifestyle evidence; why she had transferred sums of money abroad; and her failure to answer questions in police interview. Pepper's own evidence extended into a second day and referred, as appropriate, to a substantial body of documentary evidence that was also before the jury. It is submitted that the judge did not deal adequately or fairly with her evidence in his summing up.
11. As to her relationship with Christopher Range, her evidence was that it was one of relative estrangement and that she was therefore wholly ignorant of his involvement in drug trafficking. She gave detailed evidence as to the relationship at the time, including periods of time when Christopher had been in custody. She said that in 2005 she believed he had begun to change his ways as he started to earn a legitimate income running a construction business. The cash he earned would be kept in a safe in their apartment and she was unaware of any other cash kept by him at their home. Their personal possessions were kept separate. Her account of what counsel has described as the fractious and turbulent nature of the relationship was supported by evidence given by three defence witnesses, namely her parents, Margaret and Richard Pepper, and a friend, Lauren Borge.
12. With regard to the mobile phone, Pepper gave evidence, supported by the evidence of her mother, that it was taken out on a contract in the name of her mother and that Christopher Range had asked the mother to get it for him since neither he nor Pepper could take out a contract. She said that it had been mainly used by her partner, not by her. She denied using it in January 2008 when one of the trips had been booked to the Caribbean, she said that Christopher had leant it to Hine prior to that time. She accepted that she had the use of the phone by the time she started hiring cars in March 2008 but insisted that it remained principally her partner's phone and that he would generally control her access to it. In consequence of that restricted access she took out an additional phone ending 851 on her mother's contract for her own use. She did admit having used the 045 phone to call Hine on 9 May 2008 but she said that she had not known that he was at the airport at the time and he did not reveal that fact to her. The point was also made in submissions on her behalf that there was no billing evidence to link the use of the phone in January 2008 with her; the number had not been used to book the April 2000 trip to St Lucia; and, prior to her calls to Hine on 9 May 2008, there had been 12 calls to Hine from Christopher Range on a separate number, which countered the prosecution suggestion she was acting as a coordinator on that day.
13. On the issue of the hired car used by Hine on 9 May Pepper's evidence was that she had initially rented a different hire car, as early as 19 March, so as to enable Christopher to carry out the school run for their children, and because he needed a car to get to work. She said that he could not hire a car in his own name. She had extended the hire period from week to week until 25 April when she changed to a different and larger car which was kept until the events of 9 May. Both vehicles were easily traceable to her. She said she had little direct involvement in the usage of the cars and had no knowledge that the second car had been lent to Hine for 9 May. Her account as to the purpose behind hiring cars and her limited involvement thereafter in the use of cars was supported in evidence by her parents.
14. On the subject of the cash and lifestyle evidence, Pepper gave evidence that she had been unaware of the large amount of cash seized from under their mattress of their home and she narrated what she had later learned from Christopher about the circumstances in which he had placed it there. She gave a detailed account of how the various trips on holiday had been funded, referring to the financial support she had received from her parents. Both parents gave corroborating explanations. She also gave an account of the purchase of various goods, saying that they had, in the main, been made by Christopher Range. The defence placed all her bank statements before the jury to support her case that she had not enjoyed a lifestyle inconsistent with her income over the relevant period.
15. The money transfers in issue were made by Pepper through Western Union and were as follows: on 25 July 2007 the transfer of £2,300 to a man called Herbert Bruce in Trinidad; on 27 July 2007 a transfer of £500 to Christopher Range in Trinidad; on 8 August 2007 a transfer of £500 to Christopher Range in Spain; on 20 October 2007 a transfer of £300 to Christopher Range in the Netherlands; and on 11 February 2008 a transfer of £599.99 to Christopher Range in Mexico. The prosecution maintained that it could be inferred that the transfers were used to facilitate the purchase of drugs. Pepper said that she had made the transfers at the request of her partner who she believed was holidaying in the various locations. It was his cash and she believed he needed it for his legitimate holiday and travel expenses while abroad. She denied having any idea that the money might be used in connection with drugs. In submissions on her behalf the point was also made that two of the transfers were to European countries which could not be said to have any connection with the Caribbean, from where the drugs were being sourced, and that Pennington, who was acquitted, had also transferred money through Western Union to known or suspected conspirators on three occasions.
16. Pausing there, we turn to consider how the judge dealt with those aspects of the defence case in his summing up and the specific criticisms that are made of it. Having reminded the jury of salient details of the prosecution case against Pepper the judge said this about her defence case (transcript 21C to 22E):

"Marcee Pepper told you of her history, a rebellious teenage meeting with Christopher range when she was 17 and he but a little older. Like Lady Caroline Lamb's description of Lord Byron, he was mad, bad and dangerous to know. She clearly fell for him. She was pregnant by him within 2 weeks. He was soon to be sentenced to 3 and a half years and later to 3 years. They were separated but she took him back. He had had a child at the age of 15 by another woman. She took that child in and treats her as her own. She has another baby by him. She told you she has had to try hard to find work or to get a profession. He kept her short of cash, went his own way and frequently stayed away. Alexander Range told you that Christopher liked his designer clothes and his expensive watch, and he thought that he, Christopher and Adam Hine had gone shopping in New York.

Marcee Pepper seems to have had a different perception of him. She agrees she sent money to and for Christopher Range, the cash coming from the sale of the house. She agrees she hired cars, including the one detained at Manchester Airport. She says that they were for Christopher's use because his own had broken down. A car was needed to take the children to school or nursery. She needed her own car to look for work and, when she started work for Monarch at Gatwick, to get to the airport. The 045 number was a contract phone. It was rented for Christopher's use in her mother's name, as neither of them had a good enough credit status. She was totally unaware that Christopher Range had been involved in drug smuggling. When she sent him money by transfer it was at his request because he had run out of money for his return flights or, on one occasion, because he was going island hopping. She agreed that she made the three calls on the 045 number to Adam Hine on 9 May. She picked up the phone at home, she left for work in the early hours. Christopher rang to say he had lent the car to Hine and could not take the children to school and she got angry about this as Hine did not have her permission to drive the car, which, as I have told you, was hired in her sole name. So she rang Adam Hine and asked him why he was driving without her permission, only to be told that he had to go and that he was busy. She rang him again moments later really, and he did not even answer. When she rang a third time, again shortly thereafter, she got the same brush off. He was in fact, as you know, then in and around terminal 2, either the car park or the terminal itself, and was to be arrested moments later.

I do not propose to remind you again about the search of her home and her arrest and her interview, members of the jury. She told you she was a stranger to the courts and police stations, and she would not knowingly get involved in any crime, let alone drug conspiracies, and would not jeopardise her children's welfare by getting involved in this sort of thing.

She called her mother and father and her friend Mrs Borge. You remember that evidence and will bear it in mind."

17. Mr Sidhue submits that the judge's review of the case put forward by Pepper was superficial and perfunctory, and that rather than reminding the jury of the detailed factual evidence given by the three supporting defence witnesses the judge merely invited the jury to remind themselves of it. The judge did not adequately remind them of the substantial evidence from Pepper and the supporting witnesses about her relationship with Christopher Range, about the circumstances of and reason for obtaining the 045 mobile phone number, or about the background to, reasons for, and content of the phone calls to Hine on 9 May. He did not adequately cover the circumstances of the car hire, which Pepper relied on as showing it was entirely conceivable that Christopher Range had put the hire car to use for the conspiracy on 9 May without her knowledge and agreement. He did not address the lifestyle evidence or remind the jury of the detailed evidence of Pepper and her parents on that issue. He gave the jury no proper reminder of the detail of Pepper's explanations as to the circumstances of the money transfers and her understanding of why she was assisting Christopher Range by making such transfers on the relevant occasions. The provision of detail in relation to her evidence on those matters is said to have been all the more important when it is borne in mind that there was so much documentary evidence before the jury and Pepper's explanations in relation to those documents were critical. Mr Sidhue submits that the deficiencies in the judge's summing up were so serious and fundamental that it could not be said that Pepper's defence was adequately rehearsed before the jury.
18. Encompassed within that submission is a further complaint about the judge's handling of Pepper's evidence concerning her no comment interviews. This issue is of a slightly different character but we should deal with it briefly here. After her arrest Pepper was interviewed at length under caution. She declined to answer any questions. The prosecution sought and obtained an adverse inference direction at trial in relation to the facts she had relied on at trial. In her evidence Pepper described the circumstances of her detention at the police station and the fact that she had received advice from her solicitor not to comment in answer to police questions in interview. In summing up the judge gave a standard direction on adverse inferences. He did say that Pepper had given evidence that she did not answer questions on the advice of her solicitor, but it is submitted that he should have reminded the jury of her detailed evidence as to the circumstances in which she made her decision and her state of mind at the relevant time.
19. On behalf of the Crown Mr Preston makes a robust response to those various points. He submits that the judge's references to the defence evidence were short but dealt with the major parts of her case and, whilst not every aspect of her evidence was dealt with explicitly, her defence was referred to and the jury were directed as to her evidence. It is conceded that they were not specifically reminded of the evidence of the other defence witnesses, but it is said that those aspects of the defence case supported by the witnesses were referred to in the context of Pepper's own evidence. It is submitted that the summing up did not fail to refer to any cardinal element of the defence case and, whilst it might appropriately have been longer, it was not so short or deficient as to render the conviction unsafe.
20. We have dealt at some length with this ground because it has given us considerable food for thought. The judge's summary of Pepper's defence case was certainly brief and dealt more with headline points and a few specific matters than with the detail of her evidence, and it simply referred to the supporting defence witnesses without dealing with the specific content of their evidence at all. Economy and focus in the summing up are highly desirable qualities but we consider that, in this case, rather more could usefully have been said in order to capture the full flavour of the account given by Pepper and the support it had received from the other defence witnesses.
21. On the other hand, the approach adopted in relation to her case was very much in line with the succinctness of the summing up as a whole, and it cannot be said that there was a serious imbalance between the way the judge dealt with her case and what he said about the prosecution case or about the cases of the co-defendants.
22. Moreover, it has to be borne in mind that the trial itself was relatively short (the evidence extended over 7 days in total) and that Pepper had completed her evidence only 3 days before the judge summed up and the jury first went out to deliberate. The evidence of the supporting witnesses followed immediately after Pepper's evidence. It was itself relatively short and in large measure was true supporting evidence rather than dealing with new facts. It is true that the evidence of the two co-defendants at trial had then followed but it remains the position that the evidence given by and for Pepper will have been fresh in the jury's minds at the start of their deliberations, as of course will have been the closing submissions of counsel. In those circumstances there was, as it seems to us, a lesser need for recapitulation of the detail in the summing up. It is also relevant that the jury had the documents on which Pepper had commented in evidence, which will have helped them in the process of recollecting what she had said.
23. Looking at the matter overall, we accept that it would have been desirable to give the jury more help but we are not persuaded that the judge's summing up of Pepper's defence case was so deficient as to cause unfairness to her or to render her conviction unsafe.
24. The appeal on ground 1 therefore fails.

Ground 2

25. As already indicated, ground 2 requires leave. In summary it is submitted that the judge caused unfairness to Pepper by repeated inappropriate and unnecessary interventions in the course of her evidence. It is said that he made a large number of interventions in examination in chief, in addition to instances where he sought clarification due to inaudibility or ambiguity, and that on several occasions he effectively took over the examination. During cross-examination it is said he interrupted on numerous further occasions, again in addition to instances where clarification was sought. He also interrupted her evidence during re-examination. There were, in addition, interventions during the evidence of the other defence witnesses. But it is in relation to Pepper's evidence that the real complaint is made, with the prefatory observation that she was a 27 year old woman of previous good character who had not been arrested before or given evidence in the criminal court and who was extremely nervous and tearful from the very commencement of her evidence.
26. Mr Sidhue submits that the judge's interventions made it more difficult to obtain her narrative account on the key issues, although he accepts that he did in fact succeed in eliciting that account; that it undermined her confidence and inhibited her capacity to concentrate on his questions; that it gave the impression that, in respect of some of her answers, the judge was disbelieving or was sceptical of her credibility; and that it risked distracting and confusing the jury. The overall effect is said to have been to deprive Pepper of the opportunity to have her evidence considered fairly by the jury and to have rendered her conviction unsafe.
27. The proposition that excessive or inappropriate judicial intervention may compromise the fairness of a trial is made good by a number of cases, a recent example of high authority being the judgment of the Privy Council in Peter Michel v The Queen [2009] UKPC 41, which cites earlier cases to which it is therefore unnecessary to make specific reference. The principles are clear.
28. We have read the entirety of the transcript of Pepper's evidence, which was not available to the single judge but is available to us. We have considered the observations made by Mr Preston in his skeleton argument on the passages on which particular reliance is placed in support of the application on ground 2. We think it unnecessary to set out any detail. It suffices to say that we are wholly unpersuaded that the judge's interventions in this case could be said, even arguably, to have been unfair or to have had an adverse effect on the fairness of the trial. There was no badgering of the witness, no entering into the arena. It cannot be said that Pepper was prevented from or inhibited in giving her full account. There is no reason to believe that the judge's interventions were such as to cause the jury to consider that he disbelieved or was not impressed by the evidence being given. What occurred was entirely within the reasonable ambit of the judge's discretion.
29. We are satisfied that leave to appeal should be refused on ground 2.

Ground 3

30. As we have said, the third ground of appeal was not before the single judge but is raised before us by way of amendment. It is contended that the judge erred in failing to direct the jury in relation to the evidence of cash and lifestyle. Mr Sidhue's submission is that he should have assisted the jury by a direction encompassing a number of elements: 1) that the evidence of large amounts of cash and high expenditure did not of itself prove anything against Pepper; 2) that it could only be relevant if the jury had first rejected any innocent explanation for it given by her; 3) that only if they concluded that the money reflected not only past trafficking but ongoing trafficking could they take it into account when deciding whether she had deliberately leant herself to the ongoing conspiracy. That formulation is derived from the R v Grant [1996] 1 Crim AC R 73, where a direction in those terms was held to be required where lifestyle evidence was relied on as going to the issue of intent to supply in a case of possession of drugs. Mr Sidhue has also drawn attention to the case of R v Greene [2010] CLR 306, a case of conspiracy to supply drugs in which there was an issue about the relevance and admissibility of lifestyle evidence and complaint was made, unsuccessfully, about the judge's direction as to how to approach such evidence. That direction, which we need not set out, is also deployed by Mr Sidhue in support of the submission made that there should have been a direction along those lines in the present case.
31. It is striking that Mr Sidhue submits that the lifestyle direction along those lines was essential, yet the matter was not raised with the judge by counsel either before the summing up or at the conclusion of the summing up, when the opportunity was given to raise additional points that the judge should have covered, an opportunity taken by some counsel. Nor did it strike counsel at the time of settling the original grounds of appeal. It is a point taken late. We do not find that particularly surprising. We attribute it not to a serious oversight on the part of counsel but to the fact that a direction of the kind suggested was simply not necessary in the circumstances of this case.
32. Pepper's central defence on the lifestyle issue was a very simple one, that she did not know of the money found under the mattress in the bedroom, she did not know about Christopher Range's lavish expenditure, and she did not know about his involvement in drugs that funded such expenditure. The question for the jury on those matters was whether they thought she was or might be telling the truth about them. It seems to us that if they had accepted her account it would inevitably have led to her acquittal, but if they rejected her account there was really nothing left by way of innocent explanation that could help her.
33. Accordingly, we reject the submission that the judge erred in failing to give a specific direction on the issue of lifestyle as it arose in the particular circumstances of this case. We are satisfied, in any event, that the omission to give such a direction did not affect the safety of the conviction.
34. We refuse leave in relation to ground 3.
35. For the reasons we have given, we must dismiss Pepper's appeal against conviction.

The appeal of Alexander Range

36. The grounds of appeal against conviction in the case of Alexander Range are, first, that the judge erred in rejecting the submission of no case to answer; secondly, that he failed to sum up the case properly to the jury; and thirdly, that he gave an improper direction to the jury after they had retired. The single judge gave leave to appeal on grounds 1 and 2 but refused it on ground 3, in respect of which a renewed application is made to this court.
37. We have already touched on the point that the prosecution case against Alexander Range centred on two trips to the USA and Mexico in February and March 2008 respectively. The first was undertaken by Christopher Range and Hine, who travelled together to Mexico via New York on 6 February. On 9 February Alexander Range transferred £753 to his brother, Christopher, in Mexico, at a location very near to the border with California. One of Pepper's money transfers to Christopher Range was made two days later, on 11 February, to the same location.
38. The second trip was undertaken by Alexander Range and Hine. They travelled to Los Angeles on 23 March and went on to San Diego. On 27 March Christopher Range transferred the sum of £2,560 to Alexander in San Diego. On 29 March he transferred a further £1,000 to Alexander in the same location. At around the same time David Paul had travelled to San Diego with his mother. In his evidence, though we should stress that this was only after the rejection of the submission of no case, Alexander admitted having met Paul in San Diego but said that he did not know him before that meeting.
39. The prosecution case was that this activity was in furtherance of the conspiracy to import cocaine, albeit the only importations alleged were from the Caribbean and there was no suggestion that specific imports of cocaine had occurred from Mexico or the USA.
40. There was some other evidence of association between Alexander Range and the other defendants. On her arrest on 9 May 2008, Edmonds had a piece of paper in her bag with a list of phone numbers on it, including that of Alexander, though examination of her mobile phone, which also had his number stored in its memory, showed no telephone contact with him. In the hire car used by Hine on 9 May there was found an auction house receipt in the name of Alexander for a BMW motorcar, which could be linked to his brother Christopher since Christopher had sold the car via the same auction house in July 2009, and also to Daniel Paul to whom a speeding ticket had been issued in April 2008 in respect of the same vehicle.
41. Other pieces of evidence that it is relevant to note are evidence from Alexander Range's tax returns that he was a mechanic, evidence from a seized computer that he had been making internet searches for Ford Mustang motorcars in San Diego, and evidence that he had minor debts in 2007 and January 2008, relevant to his ability to transfer money to his brother.
42. The prosecution evidence was not challenged by the defence. At the conclusion of the prosecution case a submission of no case to answer was made on Alexander Range's behalf but was rejected by the judge. Alexander then gave evidence. He relied on a file of defence exhibits, which included bank statements and various documents relating to his car mechanic's business. With regard to the money transfer made to his brother in February 2008, he said that his brother phoned from Mexico saying that he had spent all his money and needed some to buy a flight, so Alexander agreed to send him some money. Concerning his own trip to the USA and Mexico, he stated that it had been a holiday and he paid for it himself. He travelled to California and across to Tijuana in Mexico because his brother and Hine had said it was a good place to party and that was where all the American students went. He also stated that he had been looking into importing a Ford Mustang from the USA; the money transfers had been made to him by his brother for use in buying such a car but he had not found a suitable one and the importation costs had proved too high. He had brought the bulk of the money back with him. Evidence was read on his behalf which showed that he was a self-employed mechanic and he had also been employed for a short while as a mechanic.

Ground 1

43. Mr Gardener, on Alexander Range's behalf, submits under ground 1 that the judge was wrong to reject the submission of no case to answer. The prosecution concerned a conspiracy to import drugs from the Caribbean but Alexander could not be linked directly or indirectly to any of the attempted or actual drug trips to or from the Caribbean. The case against him rested entirely on the Crown being able to demonstrate that the proper inference to reach from the evidence regarding his trip with Hine to the USA and Mexico, and his receipt of money during that trip from his brother, was that he acted in furtherance of a conspiracy to import cocaine from the Caribbean. For such an inference to be drawn it had to be the only proper inference to draw, see R v Jabber [2006] EWCA Crim 2694 paragraph 24. The evidence adduced, however, did not justify the inference and the rejection of any innocent explanation for the trip. There was no evidence of any "contact" in the USA or Mexico, or of meetings or the making of arrangements in those countries, or of payment to any individual or of any transfer of funds to the Caribbean, or of links between persons in the USA and Mexico and either the conspirators or the Caribbean. There was no coherent or persuasive theory as to why monies transferred to the USA or Mexico in February and March 2008 were in some way connected to importations from the Caribbean, or attempted importations, in August 2007 and January and May 2008. The only evidence with regard to a possible reason for the need for money to be transferred to Alexander in March 2008 related to the internet searches he had been making concerning the purchase of a Ford Mustang.
44. The submission made is that the weakness in the prosecution case was demonstrated by the vague and inconsistent suggestions advanced by the Crown regarding the reasons for the trip. For example, it was suggested that Hine was going out to forge new routes; at another time it was suggested that the purpose of the trip was to develop business in Mexico; and at another time that the money transferred was to pay for couriers or for drugs. Mr Gardener further submits that the additional evidence of association between Alexander Range and the other conspirators adds nothing material.
45. The judge's reasons for refusing the submission of no case were these. He referred first to the trips to the Caribbean and to money transfers associated with them. He then said:

"During the same four months there were several trips to the United States by different people. There were similar money transfers, and they involve Adam Hine on more than one occasion, Daniel/David Paul being in San Diego at one and the same time as this defendant and Adam Hine. On another occasion Adam Hine and Christopher Hine travelling to Mexico and the United States and following a rather, I cannot say convoluted, but certainly a meandering type of journey around the North American continent.

To treat those trips in isolation from the rest of the activities of Adam Hine and Christopher Range and Marcee Pepper, is to stretch the jury's credulity rather a long way. They are fully entitled to look at the whole picture, and they decide whether it is a proper inference to draw that these were drug trips or whether they were not".

He went on to deal with further reasons and also to refer to various travel documents. I pick it up where he said:

"They are all inextricably linked in one picture and, in my judgment, they do present circumstantial evidence from which the jury, properly directed, would be entitled to say 'we are driven to draw the inference that all these people are involved together and involved in a drug conspiracy, and these trips are part of that conspiracy'. The question then goes on how far does this draw this defendant, Alexander Range, into that conspiracy? The fact that he went on one of those trips with Adam Hine, the fact that he sent money on another trip to Alex Hine and Christopher Range, his brother, and the finding of a document in the car driven by Adam Hine, rented by Marcee Pepper, directed to go to Manchester at very short notice, clearly indicates a further link from which the jury would be entitled to draw that inference should they so conclude".

On that basis he dismissed the application.

46. Mr Gardener submits that the judge was wrong to do so, that he was wrong to rely on the evidence of other people's journeys which were simply trips abroad and had no relevance at all and, in any event, could have no relevance to this appellant. It is also said that the judge's reliance on the transfer of money to Christopher Range is inconsistent with the approach he took to the evidence relating to Pennington, in respect of whom he said that the sending of money to Edmonds was not evidence from which the jury could infer that Pennington was part of the conspiracy. That was despite the fact that Pennington knew that Edwards was engaged in drug smuggling, whereas there was no evidence that Alexander Range knew or believed that Christopher Range was engaged on a drugs trip at the time that the transfer was made by him.
47. For the prosecution, Mr Preston submits that there was good and compelling circumstantial evidence to warrant this case being left to the jury, in particular that the evidence concerning travel and money transfers clearly called for an explanation and was sufficient for a jury properly to infer that Alexander Range went to the USA and Mexico with Hine, was there also with Paul and received money from Christopher Range, as part of the conspiracy to import drugs. The fact that the prosecution could not say whether the trip was to pay for future or past importations or to make future arrangements is immaterial. It was certainly the prosecution case that the trips were not for the purposes of tourism.
48. Mr Preston therefore submits that the judge's rejection of the submission of no case was entirely correct. The prosecution case could not be described as inherently weak. The evidence adduced raised matters within the province of the jury. The correct approach in cases involving circumstantial evidence is to look at the evidence in the round and to ask whether, treating it with appropriate care and scrutiny, there is a case on which a properly directed jury could convict. In this case there was. The evidence relating to this appellant's travel could not be looked at in isolation. As to the point about Pennington, the case against her was very different and the fact that the judge concluded that the money transfer of £253 to Edmonds by Pennington was insufficient to establish a case to answer does not mean that there was no case for Alexander Range to answer on the very different evidence relating to him.
49. We accept the submissions made on behalf of the Crown on this issue. In our judgment there was sufficient circumstantial evidence of participation by Alexander Range in the conspiracy to justify the judge's decision to let the case proceed. The reasons for the trips to the USA and Mexico and the related money transfers were not known, but a proper inference that could be made was that they were in furtherance of the conspiracy and that Alexander's involvement in one such trip was, likewise, in furtherance of the conspiracy and did not have an innocent explanation. The jury would be entitled to take into account the similarities between the trip in which Alexander was involved and the trip made by his brother and Hine only 6 weeks earlier. They would be entitled to attach significance to the fact that he was travelling with one conspirator, Hine, to a destination at which another conspirator, Paul, was also present, and that he received substantial funds in two tranches from the principal conspirator, his brother Christopher. They would be entitled to scrutinise with particular care any innocent explanation offered. The fact is, however, that no explanation had been offered by Alexander himself, who had made a no comment interview. The suggestion made on his behalf, that he received the funds for the purchase of a Ford Mustang, had little support at the point at which the submission of no case fell to be considered.
50. We are therefore satisfied that, on the evidence as it stood at the close of the prosecution case, it would have been open to a reasonable jury, properly directed, to conclude that the trips and money transfers in question were made in furtherance of the conspiracy and that Alexander Range acted as a knowing participant in that conspiracy. The judge was therefore right to refuse the submission of no case.
51. The appeal fails on ground 1.

Ground 2

52. This ground concerns the directions given in the judge's summing up. The defence asked the judge to direct the jury that to convict Alexander Range they had to be sure that when he travelled to the USA and Mexico and received the money transfers from the brother, these were acts done by him in pursuance of the conspiracy to import cocaine from the Caribbean, as that was the prosecution case. What the judge said to the jury about these matters was as follows. First, in relation to the generality of trips and money transfers he said, at pages 19H to 20C:

"Now, the prosecution ask you as a matter of common sense to infer that all this to-ing and fro-ing and transfers of money during this period are inevitably connected each to the other. They cannot attribute a purpose to the trips to America and Mexico, but from their pattern and timing they can hardly be holidays or tourism. From the very pattern of all that, the prosecution says that the only proper conclusion is that they were directed by Christopher Range, using funds provided by or through him and connected to his very obvious drugs importing business. They suggest that you should conclude that these trips were either to make or to renew contacts, or to meet drugs suppliers or their representatives, or to effect money transfers from Mexico or California into the Caribbean area as a means of avoiding detection in the United Kingdom. It may be a very long way from Mexico to Trinidad, but money can be moved at the press of a button".

Then, specifically in relation to the trip and money transfer made by Alexander Range, the judge said this at 21A to C:

"Alexander Range made the trip to the United States and Mexico with Adam Hine, who was of course a convicted drugs conspirator, meeting David Paul, another convicted drugs conspirator, and receiving large sums of cash. He also transmitted a large sum to Christopher in Mexico, although he himself, Alexander Range, cannot be described as being in any way flush with cash. If you decide that these two trips were so close together, and so close in time to other trips and events as to be clearly part of Christopher Range's conspiratorial activities, then you may conclude that they must be part of a conspiracy. If you do so, you must ask yourselves whether it is proved that Alexander Range was knowingly party to it".

53. To those passages must be added the judge's concluding directions to the jury on the substance of the case, at 26A to C:

"So, members of the jury, that was the evidence called on behalf of the defendants and the prosecution, and that is my summary, my review of the evidence in this case and the issues upon which you have to decide. I reiterate, first, consider was there a conspiracy to import drugs? Secondly, consider the ambit of that conspiracy, is it confined to a few trips by Rebecca Edmonds, perhaps with Hine on some occasions and David Paul, or is it wider? Does it embrace those trips to Mexico and the United States, and to perhaps Holland and even a trip to Spain? Once you so conclude, consider the case of each of these three defendants and decide if you are sure that he or she, considering their case in turn, was aware of the conspiracy, and knowingly attached themselves to the conspiracy, and agreed that it would be carried out and on occasion played some part in carrying the conspiracy forward. That is what you have to decide".

54. It is submitted that the judge's directions were erroneous and deficient. He failed to direct the jury that they could only convict Alexander Range if they found that his trip was in some way connected to a conspiracy to import cocaine from the Caribbean. He invited the jury to speculate that the money sent to the USA had been transferred to the Caribbean. He wrongly directed the jury that they could convict Alexander Range if they found he had gone to Mexico to make new contacts, for which there was no evidence. He failed to distinguish between the inferences that could be drawn from Alexander's own trip and those that could be drawn regarding the money transfer he had made to his brother during the brother's trip some 6 weeks earlier. It is submitted that the only basis on which Alexander could have been convicted was if the jury were sure that the money transfer he made was to pay for drugs or couriers, and that the judge failed to direct the jury as he should have done on that point. It is also said that the judge was wrong to invite the jury to consider the trips taken by Hine and Christopher Range to other destinations, particularly Holland and Spain, when considering the significance of Alexander Range's trip to the USA. The prosecution made no suggestion that trips to Holland or Spain were related either to Alexander's trip or indeed to the importations from the Caribbean.
55. This is another area of the case that has caused us particular concern. It seems to us that the judge did not give the jury all the assistance he should have given them on the correct approach to the evidence relied on by the prosecution as showing participation by Alexander Range in the conspiracy. There was a regrettable element of vagueness, and even an element of error, in the way in which he dealt with the issue in his directions. Mr Preston found it difficult, for example, to explain and justify the judge's reference at 20B to C to effecting money transfers from Mexico to the Caribbean area as a means of avoiding detection in the United Kingdom. He accepted that the direction at 21B was not sufficient in itself and he accepted that the reference at 26B to trips to Holland and Spain was inappropriate, since those trips had not been relied on by the prosecution.
56. It would have been helpful in our view to give the jury specific guidance on how the transfer of money by Alexander to his brother during the brother's trip in February 2008, or how Alexander's own trip in March 2008 and the receipt of money from his brother during that trip, could amount to participation in the conspiracy. Nevertheless, taking the summing up as a whole, we have come to the conclusion that sufficient was said to cause the jury to focus on the right questions. It was made sufficiently clear to them that they had to be sure that the trips themselves, together with the related money transfers, were made in furtherance of the conspiracy and that in, acting as he did, Alexander "was aware of the conspiracy and knowingly attached himself to the conspiracy and agreed that it would be carried out and played some part in carrying the conspiracy forward", to apply to Alexander the words used by the judge at 26C. It was therefore clear to the jury that they could not convict Alexander unless they rejected his innocent explanation for what he did and unless they were sure that he acted as he did as a knowing participant in the conspiracy. So, whilst this feature of the summing up, like other parts already considered, is not free from criticism, we take the view that the deficiencies in it are not so profound as to affect the safety of the conviction.
57. The appeal therefore also fails under ground 2.

Ground 3

58. That leaves the one remaining matter relied on in relation to Alexander Range. Leave is required in respect of it. The ground concerns what the judge said to the jury after a long weekend break. The jury had gone out to deliberate after the judge's summing up on Friday 10 July but had not reached a verdict that day. The court reconvened on Tuesday 14 July. Before sending the jury out on that day to continue their deliberations the judge gave them a short review of their task. We do not need to set out the terms of that review. Complaint is made of the fact that Alexander Range was the only defendant in the dock who was mentioned by name in the course of the review and that specific reference was made to the trips by Christopher Range, Hine and Alexander Range to the USA but there was no mention of the evidence relevant to either of the other two defendants at the trial. Moreover, the review failed to consider the defence case at all.
59. We agree with the single judge that this ground is not arguable. We are satisfied that the judge's review did not place undue emphasis on Alexander Range or on the case against him, and that the jury will not have been misled into considering that his case was, in the judge's view, the most important. Nor was it necessary, in the circumstances, to provide a fuller reminder of the prosecution and defence cases. This was plainly no more than the briefest of reminders to the jury and would not have displaced in their minds the judge's summing up that he had given them on the previous Friday. In our judgment, it was not capable of causing unfairness to the appellant.
60. The renewed application for leave on ground 3 is therefore refused.
61. It follows that, for the reasons we have given, Alexander Range's appeal against conviction must be dismissed.

Appeals against sentence

62. We turn to consider the two appeals against sentence, brought by Christopher Range and Hine respectively. Having set out the background very fully in the course of the conviction appeals, we can deal with the sentencing issue relatively briefly.
63. In his sentencing remarks, the judge expressed the view that this was a substantial conspiracy, given the period over which it was committed, the number of trips, the quality and quantity of drugs involved, and the number of participants. Although the amount of drugs actually involved was not known, he was confident that it was more than double the amount seized at the airport on 9 May and had a probable value in excess of £1.5 million.
64. The judge's assessment was that there was no doubt that Christopher Range was the prime mover. An aggravating factor was that Christopher had a serious criminal record; he is 29 years old and has had juvenile and adult convictions for burglary, a conviction in 2003 for possession of cocaine with intent to supply -- though it should be stressed that this was a minor offence of its kind since it attracted only a fine -- and a conviction in 2006 for cultivating cannabis. He had served several substantial custodial sentences. The judge took a starting point of 24 years, discounted it by 25 per cent to reflect the plea entered at a significantly early stage, as he put it, and made a further reduction for personal mitigation, leading to a sentence of 17 years.
65. The judge said that Hine made several significant journeys and was frequently associated with Christopher Range. If anybody could be described as a lieutenant, although it was not a term the judge liked, it was Hine. The phrase indicated that he was higher in the pecking order than many others in court and this would be reflected in his sentence. In his case the judge took a starting point of 20 years. He again made a 25 per cent discount for plea at an early stage and a further reduction for personal mitigation, leading to a sentence of 14 years.

Christopher Range

66. On behalf of Christopher Range, Miss Byrnes accepts that his role was pivotal and that he could expect a sentence well in excess of 14 years after trial. The judge was entitled to take account of the fact that this was a conspiracy, but it is submitted that he was not entitled, without a proper evidential basis, to quantify the amount of the importation as he did, and specifically not with the result of placing this into the category of seriousness into which he placed it. Those submissions reflect the two-fold grounds of appeal. First, that there was no evidence that anything other than the final trip had resulted in an actual importation of drugs and that the judge was therefore wrong to sentence on the basis of a quantity at least twice that amount: it is said that there was no fair or proper basis in which he could arrive at the figure he did for the quantity or value of drugs imported and that this led him in itself to place the case in a category of seriousness which was not justified on the evidence.
67. Secondly, it is said that even if the judge was entitled to make the factual finding he did, the starting point of 24 years was too high. It is acknowledged that "sentences in excess of 20 years can follow for those prominently involved as organising spirits in a conspiracy to import cocaine that involved significant planning and a persistent series of importations by a number of couriers recruited by those organisers" (Attorney General's References Nos 117 and 118 of 2005 [2007] 1 Crim App R (S) 22). But it is submitted that the instant case could not be categorised as a persistent series of importations, and there was nothing about it to justify the starting point 4 years in excess of the 20 year starting point that was actually adopted in the decision on the Attorney General's references. Reliance is also placed on matters of mitigation that we need not detail.

Hine

68. It is submitted in Hine's case by Mr Barton that the judge's starting point was, again, too high and would have been appropriate only if Hine had been an organising spirit. His basis of plea was that he was involved in a previous trip with Edmonds to assist in the importation of cocaine but the importation on that date was aborted, and that he was involved in the importation on 9 May, his role being to transport Edmonds and David Paul to London from Manchester, knowing they were carrying a quantity of cocaine. It is said that his involvement was just that of a failed courier and "meeter and greeter" at the airport. There was no evidence of involvement in the organisation of the conspiracy, no direction by him of the other defendants. In any event, it is said that the judge was wrong to describe him as a lieutenant and higher in the pecking order than the others.
69. Linked to those points is a submission that the disparity between the sentence passed on Hine and those passed on the co-defendants other than Christopher Range was not based upon any evidence and is disproportionate. In Hine's case, too, a complaint is made of the judge basing his sentence on the total value of importations in excess of £1.5 million. Finally, there is a submission that a discount of 25 per cent is insufficient credit for the plea which was almost at the earliest opportunity and that a discount of 30 per cent would have been appropriate, which was the discount applied by the judge in the case of Edmonds.

Conclusions on the sentence appeals

70. This was, on any view, a very serious conspiracy, involving as it did the importation into this country of a very large quantity of cocaine. In our judgment, the judge was entitled to conclude that the quantity imported was not limited to the amount found on Edmonds and Paul when arrested on the last trip. We think it a proper inference that the total quantity imported was at least double that amount, even in the absence of direct evidence that any of the other trips led to successful importation. Even so, we accept the submissions that the judge took too high a starting point for the overall seriousness of the offence. He did so, first, in setting a starting point of 24 years for the principal conspirator and organiser, Christopher Range. We note in particular the submissions made by reference to Attorney General's References Nos 117 and 118 of 2005. That decision did not set a 20 year starting point for offending of the kind in issue in that case: the court made it clear that sentences in excess of 20 years should be expected in such a case, but in increasing the sentences to 20 years and no more the court took into account double jeopardy. However, we take the view that the present case, viewed overall, is not of quite the same level of seriousness as that case.
71. In our judgment, a starting point of 20 years would have been appropriate here for Christopher Range. Applying the judge's 25 per cent discount for an early plea, a discount which we consider entirely appropriate, and making the further reduction allowed by the judge for the additional mitigation, we arrive at a sentence of 14 years' imprisonment. We accordingly allow Christopher's appeal against sentence, quash the sentence of 17 years' imprisonment and substitute in his case a sentence of 14 years.
72. It follows that the judge's starting point of 20 years for Hine, whose role was on any view a lesser one, was also too high. There is the additional question whether the judge was right to place him in the question of lieutenant, however described, and higher in the pecking order than any of the other conspirators save Christopher Range. Having regard to everything that we have seen and heard about the case, we have come to the conclusion that the judge was entitled to treat Hine somewhat more seriously than the others. Certainly his role went beyond that of mere courier and meeter/greeter. But we are satisfied that the differential resulting from the sentencing approach adopted by the judge was too great.
73. In our judgment, the right starting point for Hine is 16 years. We reject the submission that he should have been given a higher discount than 25 per cent for his early plea. The judge's assessment of that and of the further reduction for additional mitigation was appropriate. Applying that approach we arrive at a sentence of 11 years. In reaching that conclusion we are satisfied that such a sentence bears a reasonable relationship with the sentences imposed on the co-defendants. Accordingly, the appeal against sentence by Hine is allowed to the extent of our quashing his sentence of 14 years' imprisonment and substituting a sentence of 11 years' imprisonment.
74. We are very grateful to all counsel for their assistance in the matter. Have we covered everything we need to cover?
75. Thank you.