The first defendant, B, now aged 61, pleaded guilty to two counts on a four count indictment: count 1, conspiracy to pervert the course of justice, and count 2, conspiracy to make a false instrument with intent. The second defendant, Z, now aged 67 and the third defendant, T, now aged 73, were convicted of counts 1 and 2 and also count 4, converting criminal property, namely the proceeds of the criminal conspiracies. The conspiracies involved the acquiring of falsely obtained genuine (“FOG”) passports. They were acquired for and at the request of people involved in very serious criminality, enabling those criminals to live abroad with an assumed identity without fear of arrest or extradition and to travel freely under their assumed identity. At the sentencing hearing counsel for the first and second defendant adopted the approach taken by the prosecution, namely that the existence of the conspiracy to pervert the course of justice should be taken as an aggravating factor of the conspiracy to make false instruments. The judge considered that count 1 was simply, and was to be treated as, a deeply aggravating feature of count 2. He sentenced Z to concurrent terms of eight years’ imprisonment on counts 1 and 2 and a concurrent term of three years’ imprisonment on count 4. B was sentenced to concurrent terms of six years, eight months’ imprisonment on counts 1 and 2. T was sentenced to concurrent terms of three years’ imprisonment on counts 1 and 2 and to 18 months’ imprisonment concurrent on count 4. Her Majesty’s Solicitor General applied for leave to refer those sentences to the Court of Appeal, Criminal Division, as unduly lenient, pursuant to section 36 of the Criminal Justice Act 1988. contending, inter alia, that the judge adopted the wrong approach, and that rather than treating the element of perverting the course of justice as an aggravating factor of the making of false instruments, he should have treated the conspiracy to pervert the course of justice as the lead offence with the false instruments being the means by which the course of justice was to be perverted and it followed that the appropriate sentence for those involved in a continuing scheme should be significantly longer than eight years’ custody.
On the application to refer—
Held, application granted. The judge erred when he treated the conspiracy to pervert the course of justice as a grossly aggravating factor of the conspiracy to make false instruments. The criminality in the present was providing those who had committed very serious offences indeed with the ability to evade justice. The means by which they were able to do so was secondary. Had the judge approached the case in the correct way, he inevitably would have imposed a sentence in excess of the maximum sentence permissible for the conspiracy to make false instruments. The conspiracy to pervert the course of justice was very serious both in its purpose and in its persistence. Z was the organiser of the conspiracy. He was fully aware of the nature of the crimes committed by those he assisted. He was closely associated with professional organised crime at the highest level. Z’s sentence of eight years’ imprisonment in respect of count 1 was unduly lenient and would be quashed and a sentence of 12 years’ imprisonment would be substituted. Had B fallen to be sentenced solely for his participation in the conspiracies with Z and others, his sentence would have been less than that imposed in relation Z. However, there were other offences to be taken into consideration which aggravated B’s position very substantially. His sentence after trial would have been 12 years’ custody but a 15% reduction for his pleas of guilty meant that his sentence would be reduced to 10 years, 2 months’ custody and that would be the sentence substituted in his case. Although the Solicitor General was granted leave to refer the sentence in the case of T, his sentence was not unduly lenient even after the adjustment of the sentences of Z and B (paras 40, 41, 43, 44).
Joel Smith (instructed by Attorney General’s Office) for the Solicitor General.
Jai Patel (assigned by the Registrar of Criminal Appeals) for the defendant, B.
Craig Rush (assigned by the Registrar of Criminal Appeals) for the defendant, T.
David Nathan KC (assigned by the Registrar of Criminal Appeals) for the defendant, Z.