No. 2008/06690/C2 & 2008/06688/C2
Neutral Citation Number: [2011] EWCA Crim 3111
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Tuesday 13 December 2011

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MR  JUSTICE  SWEENEY

and

MR  JUSTICE  SINGH
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R E G I N A

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JOHN  HAASE

PAUL  BENNETT
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Mr A Jones QC appeared on behalf of the Appellant John Haase and the Applicant Paul Bennett
Mr D Atkinson appeared on behalf of the Crown
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J U D G M E N T
Tuesday  13  December  2011

THE LORD CHIEF JUSTICE:  
1.  On 19 November 2008, in the Crown Court at Southwark, before Cooke J and a jury, John Haase and Paul Bennett were convicted of conspiracy to pervert the course of public justice.  Haase was sentenced to 22 years' imprisonment and Bennett to 20 years' imprisonment.  Appropriate orders were made in relation to any time spent in custody on remand.  

2.  On the same date Deborah Haase (John Haase's wife) and Sharon Knowles were convicted of the same conspiracy.  Paul Thompson, although acquitted of the conspiracy, was convicted of possession of firearms without lawful authority.  Knowles was sentenced to five years' imprisonment, Deborah Haase to four years' imprisonment, and Paul Thompson to four years' imprisonment.  A further conspirator, Hennigan, had earlier pleaded guilty.  He was sentenced to 30 months' imprisonment.  Due allowance was made for his guilty plea and his lesser role in the conspiracy.  These four, Deborah Haase, Sharon Knowles, Paul Thompson and Hennigan were foot soldiers of the conspiracy.  John Haase and Paul Bennett were its leaders.

3.  Knowles and Haase appealed against sentence with the leave of the single judge.  Thompson's application for leave to appeal against sentence was referred directly to the full court, and leave was granted.  The appeals of all three were dismissed.  Applications by John Haase and Hennigan were refused by the single judge and were not then renewed.  Bennett renewed his application following refusal by the single judge and then abandoned it.  John Haase now appeals against sentence with the leave of the full court which granted the necessary extension of time.  Bennett seeks, through new solicitors, to have his abandonment of an appeal against sentence to be treated as a nullity.  For convenience only we shall describe both John Haase and Paul Bennett as "the appellants", although in the result Bennett remains an applicant whose application has been refused.

4.  In the judgment dismissing the appeals by Knowles, Deborah Haase and Thompson, the court observed that this was an "elaborate, unusual (if not unique) conspiracy" and that it was not possible to exaggerate its seriousness.

5.  The objective of the conspiracy was to enable John Haase and Bennett to escape the level of sentence which would have been appropriate following their convictions for involvement in very substantial drug dealing on an international basis.  There was a carefully organised pretence that they had given genuine assistance to the authorities which merited a substantial discount from what would otherwise have been the appropriate sentence for their involvement in the drug dealing conspiracy.  

6.  They were arrested in July 1993 following a major investigation into the importation of Class A drugs into the country.  They were the United Kingdom end of an international drugs smuggling operation which had its origins in Turkey.  The evidence against them was very strong.  They decided that they would plead guilty, but that the guilty pleas would be tendered in the context of the criminal conspiracy of which they were to be convicted in November 2008.  The conspirators decided that mitigation would be advanced to the sentencing judge on the basis that the two defendants (as they then were) could provide, and had provided, information of great value to the police and investigating authorities of major criminal activity by other criminals.  They became registered as police informers.

7.  Steps were taken to delay the proceedings against them so that the information which they purported to provide could be investigated.  

8.  Between October 1993 and August 1995 a substantial amount of apparently true information relating to apparent criminal activities by others was provided.  Among that information the whereabouts of firearms and related explosive materials was made available.  Indeed, no less than 28 substantial firearms' seizures were made on the basis of the information.  As the judgment dealing with the appeals of Knowles, Deborah Haase and Thompson made clear, this was all a charade.

9.  The appellants had made arrangements (via, among other things, the  use of their mobile phones while in custody) for the firearms to be procured and placed in apparently secret hiding places.  They then arranged for the whereabouts of the firearms to be disclosed to the authorities so that it would look as though genuine intelligence was being provided by the police informers.  In its earlier judgment the court described the conspiracy in these terms:

		"9.  ....  It was a major conspiracy of its kind.  Over the months seizures were made of firearms which included sub-machine guns, assault rifles, handguns and shotguns.  The most important seizure of firearms included 9mm automatic pistols that were found in Holyhead.  The purpose was to make it look as though they were destined to be sent to the Republic of Ireland at an extremely sensitive time during the peace process.  ....  Among other serious elements of the offence, a handgun was smuggled into Her Majesty's Prison Manchester and attributed to a prisoner who was facing a murder trial."    

In addition to their apparent efforts to enable the police to seize firearms and weapons, the appellants provided significant information about a number of professional criminals who operated in the Merseyside area.

10.  All this information was treated as if it were genuine, provided by police informants who were doing their best to assist the investigating authorities in the hope that the extent of their co-operation and assistance would be taken into account when the judge came to sentence them for their involvement in the drug trafficking operation.  In truth, it was the appellants who had made arrangements by the use of their mobile phones to ensure that firearms were found in places where they indicated to the investigating authorities they would be found.  In other words, although it looked as if genuine intelligence was being provided, it was not.  As to their information about professional crime in the Merseyside area, by the time the information was provided it was of some, but very limited, use.  The appellants never intended that it should be anything more.

11.  The case was listed for plea.  The appellants pleaded guilty.  The appropriate sentence for the offences they had committed was eighteen years' imprisonment.  That was the sentence imposed in open court.  The judge, His Honour Judge Lynch, was provided, in camera, with evidence which underlined the valuable information which the two appellants had provided.  However, had the sentence pronounced in court reflected the significant discount which would have been merited if the information provided by the appellants had been genuine, it would have revealed to the criminal fraternity that they had provided real assistance to the authorities.  That would never do.

12.  To resolve the problem, with the agreement of counsel acting for the appellants, the judge imposed the sentences of eighteen years' imprisonment and deliberately made no allowance in his sentencing decision for the assistance he believed that the appellants had provided.  But he indicated that in due course he would notify the Home Office, on the basis of the information provided, of the sentence that he would have imposed.  That sentence would have been five years' imprisonment.

13.  In due course, when that information was provided to the Home Office, the Secretary of State for the Home Department exercised the Royal Prerogative and the appellants were then dealt with as if a sentence of five years' imprisonment had been imposed rather than one of eighteen years' imprisonment.

14.  Judge Lynch gave evidence at the trial in 2008.  He explained that he was very impressed with the information given to him about the gun caches, the weapon seizures and the other matters, particularly in the light of what was then an increasing level of gun crime in Merseyside during the 1990s.  On the basis that the information the appellants had provided was genuine, he had acted within well-established principles when he indicated that if the material had been genuine, the appropriate level of sentence would have been five years' imprisonment.  

15.  In the end the sentence was treated as one of five years' imprisonment.  Subject to appropriate discounts in accordance with the statutory regimes then in force, that was the period that the appellants served in custody.  In short, following the sentencing hearing in August 1995, they were released from custody in July 1996.  The conspiracy we have described had succeeded.  The sentence of eighteen years' imprisonment, which was fully justified and for which no discount was appropriate on the basis of assistance to the authorities because none had been given, was reduced by thirteen years.

16.  The two appellant returned to Merseyside.  Haase became involved in further criminal activities.  In February 2001 he was sentenced to thirteen years' imprisonment for possession of a firearm and money laundering.  

17.  The early release of the appellants caused considerable concern.  In February 2004 Haase provided Peter Kilfoyle MP with an affidavit in which he admitted misleading the judge during the hearing in 1995.  However, when he was later interviewed by the police he began by making no comment.  In a subsequent interview he denied that the sentencing judge had been misled.  He asserted that the information provided was genuine and that he had effectively made up the contents of the affidavit given to Mr Kilfoyle.

18.  In 2008 Cooke J took the view that the offence of which the appellants and the co-conspirators were convicted was unique, sophisticated and very serious; it struck at the basis of the entire system of justice.  He concluded that this was a deliberate plan to deceive the sentencing court by exploiting the informant system.  The appellant Haase was the main organiser.  Bennett was younger and marginally less involved than Haase.  In assessing sentence, the judge expressly took account of the amount of reduction in sentence achieved by the conspiracy (ie the thirteen years).

19.  Mr Alun Jones QC, in support of Haase's appeal against sentence and acting on behalf of Bennett in his application, accepted that Haase's conviction for such a grave offence merited a long sentence. Nevertheless, he submitted that a sentence of 22 years' imprisonment, which took effect towards the end of the sentence of thirteen years' imprisonment imposed in 2001 is excessive -- certainly if looked at as a total sentence of 35 years' imprisonment imposed on the basis of the offences before the court in 1995, 2001 and 2008.  He also suggested that the sentence was wrong in principle.  He submitted that the sentence fell within the maximum sentence available following conviction for the particular conspiracy of which the appellants were convicted.  However, he contended that it exceeded, or failed sufficiently to attend to the maximum sentence of ten years' imprisonment permitted for offences of conspiracy to defraud by virtue of section 12(3) of the Criminal Justice Act 1987, as well as the maximum terms available for perjury (seven years) and other offences of dishonesty and fraud (fourteen years).  He also suggested that the sentence of 22 years' imprisonment constituted a breach of Article 5 of the European Convention on Human Rights; alternatively, it was based on too much uncertainty because there is no clear point by reference to statute or authority or practice to indicate that such a sentence might be imposed or would be appropriate.  Accordingly, the sentence fell within the impermissible ambit of arbitrariness.

20.  In developing his interesting argument, Mr Jones submitted that in the context of the facts of the case the conspiracy to pervert the course of justice was a conspiracy to defraud.  For present purposes, as we indicted when the appeal began, we approached his submission on the basis that was accepted by the court which considered the application for leave to appeal against conviction.  In giving the judgment of the court on that occasion, Moses LJ observed:

		"Mr Jones is undoubtedly right in pointing out that it is possible to complete a conspiracy to defraud by cheating and deceiving public officials in the exercise of their public functions so that they carry out their duty in a way that, but for the deception, they would not. That that is a correct principle is made good in the decision of the court in R v Vreones [1890] 1 QB 360.  The decision of the court was followed in cases such as Scott v Metropolitan Police Commissioner [1975] AC 819.  It is not, in order to make good conspiracy to defraud a public official, necessary to prove an intent to cause or to risk economic loss, and that conspiracy to pervert the administration of public justice will in almost every case include a conspiracy to defraud is well established.  It will not of course include any conspiracy to defraud in a case such as witness intimidation."

21.  Mr Jones submitted that on this basis the offence amounted to, and could have been indicted as, conspiracy to defraud.  If so, the maximum term of ten years' imprisonment would have applied.  He drew attention to a decision of this court in R v Bright [2008] 2 Cr App R(S) 102, where the Court of Appeal held that it might sometimes be appropriate for an offender who has been convicted of an offence which fell within the definition of a different offence with a lower maximum sentence to be sentenced as if that lower maximum applied.  Mr Jones provided, in writing, a number of examples.  He went on to submit that the principle applied with further force where the offence charged was a residual common law offence in which the appropriate maximum penalty had never been directly considered by Parliament.  He suggested that the general policy in relation to sentencing is that an inchoate offence should not be punishable by a greater penalty than the completed offence.  For this purpose he drew attention to the maximum sentence provided by statute in relation to obtaining property by fraud or dishonesty, and the seven year maximum for perjury or for conspiracy to commit perjury.

22.  From all this, Mr Jones sensibly accepted that the conduct of the appellant went further than an agreement to give a false account to a court because it included an agreement to deceive those who investigated the original offence, and other authorities, including the Home Secretary and those responsible at the Home Office for advising the Home Secretary.  Nevertheless, he argued that all these matters helped to give an indication of the appropriate parameters in which the sentencing decision had to be reached.  

23.  The difficulty with Mr Jones' careful submission is readily identified and can be briefly analysed.  The appellants were charged with, and convicted of, conspiracy to pervert the course of public justice.  Even if they might have been charged with conspiracy to defraud, we have not the slightest doubt that on the facts of the instant case the conspiracy with which they were charged, and of which they were ultimately convicted, was entirely justified.  It was the offence which they had committed.  It was the charge which most appropriately fitted the facts and the overall criminality that was involved.  For that offence, properly brought, the maximum sentence is life imprisonment.  That is entirely certain.  Parliament has not chosen to change this maximum sentence.  The court therefore had to fix a sentence to reflect the criminality involved in this offence in the context of a maximum sentence of life imprisonment.

24.  It assessing these matters it is worth emphasising that the criminality here was not merely the sophisticated conspiracy by professional criminals which led investigating officers and, on the basis of their assessment, the sentencing judge and ultimately the Secretary of State, to believe that a major discount from the appropriate sentence had been earned by the appellants.  The criminality went much further.  The conspiracy, run by the appellants from prison, depended on accomplices who were outside the prison to obtain possession of and then travel with firearms to different locations to deposit them where the police would eventually find them on the basis of the information fed to the police by the appellants (who will have been fed the information to give to the police by the accomplices who had deposited the guns).  The handling of such a weapon on each occasion was in itself a serious offence which merited a significant sentence of imprisonment.  In short, the criminality on which the achievement of the objective of the conspiracy depended was itself extremely serious, independent of the perversion of the course of justice.  The conspiracy offence alleged against the appellants therefore encapsulated very grave criminality indeed.

25.  We have considered Mr Jones' submission that the effect of the sentence of 22 years' imprisonment being ordered to run consecutively to the sentence imposed in 2001, with the appellant Haase now aged 62, meant that the overall sentence was one of 35 years' imprisonment.  If that is so, and given that the custodial element of the sentence of thirteen years' imprisonment imposed in 2001 had nearly come to an end, the overall sentence reflects the reality that the appellants had got away with their crimes for a very long time.

26.  The starting point in a case like this is to ensure that a defendant will be wholly deprived of the benefit of his crime.  In this case an eighteen year sentence was replaced by a five year sentence.  The benefit had been thirteen years.  To that starting point for their involvement the accomplices, who did not benefit in the slightest from the reduction in the appellants' sentences (save indirectly in the case of Haase's wife) and who were the foot soldiers in this conspiracy, were sentenced to five, five and four years' imprisonment respectively.  On appeal those sentences were not, and for the reasons given in the judgment could not, be reduced.  That part of their sentence which reflected the conspiracy was rightly fixed at a high level.  For the appellants, who were the leaders of the conspiracy, it was inevitable that higher sentences should be imposed than the sentences imposed on their foot soldier accomplices.  Indeed, it is worth reflecting that if the judge had not had the total sentence in mind, he might very well have taken the view that on this part of the case (ignoring the advantage gained by the appellants in the sentencing decision in 1995) and reflecting on this part of their criminality, the sentences might very well have been longer.  The difference between nine years on Haase and less on Bennett, contrasted with the sentences of five, five and four years on Knowles, Deborah Haase and Thompson respectively, would otherwise have been strange and insufficient.  

27.  In the end the sentences reflect depriving the appellants of the benefit which they had secured by their conduct, a further sentence sufficient to reflect their criminality in the organisation and the running of the conspiracy, and to deter others from becoming involved in conspiracies of this kind.  In our judgment, notwithstanding the careful submission made by Mr Jones, the sentences on the two appellants are not open to criticism.  They are certainly not open to the criticism that in the circumstances they are excessive.

28.  Accordingly, the appeal of Haase will be dismissed, and the application by Bennett to have his abandonment treated as a nullity will be refused.