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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 >> Hobbs & Ors, R v [2002] EWCA Crim 387 (14th February, 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2002/387.html
Cite as: [2002] EWCA Crim 387

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Hobbs & Ors, R v [2002] EWCA Crim 387 (14th February, 2002)

Neutral Citation Number: [2002] EWCA Crim 387
Case No: 2001/02268/X2
2001/02563/X2
2001/02564/X2
2001/04111/X2

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CANTERBURY
HIS HONOUR JUDGE WEBB

Royal Courts of Justice
Strand,
London, WC2A 2LL
14th February 2002

B e f o r e :

LORD JUSTICE PILL
MRS JUSTICE HALLETT DBE
and
HIS HONOUR JUDGE FAWCUS
____________________


R

- and -

Stephen Paul Hobbs
John William Hobbs
Darren Wayne Hobbs
Warren James Charge

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Dee Connolly for the appellant Stephen Hobbs
Christopher Cousins for the appellant John Hobbs
Geoffrey Porter for the appellant Darren Hobbs
Juliann Manson for the appellant Warren Charge
Robert Ward for the Crown
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
 ____________________

Crown Copyright ©

    Lord Justice Pill:

  1. On the 29th of March 2001 at the Crown Court at Canterbury before His Honour Judge Webb, Stephen Paul Hobbs, John William Hobbs, Darren Wayne Hobbs and Warren James Charge were convicted of conspiracy to facilitate the illegal entry into the United Kingdom of illegal entrants, contrary to section 1(1) of the Criminal Law Act 1977. Stephen Hobbs was sentenced to 9 years imprisonment, John Hobbs to 7½ imprisonment, Darren Hobbs to 3 years imprisonment and Warren Charge to 3 years imprisonment. John Hobbs appeals against sentence by leave of this Court and the other three defendants by leave of the single judge. Another defendant, Clarke, was acquitted.

  2. Stephen Hobbs owned a road haulage business operating from Milton Keynes and John Hobbs a similar business operating from Hemel Hempstead. On 24 January 2000, they were both seen leaving John Hobbs’s yard at night in a vehicle, which was driven to Germany. On its return two mini-buses were seen driving away from the yard carrying people the observer believed to be Albanian. Each bus had about 12 people in it. A second trip, involving John Hobbs and Clarke, took place on the 1st and 2nd of February but it was not known who were in the vehicle on its return. On 7 February, John Hobbs was in one of his company lorries when he was stopped by customs officers at Dover. 37 illegal immigrants were found concealed in the lorry. The illegal immigrants were hidden in 4 wooden crates on the lorry. John Hobbs denied any knowledge of the illegal immigrants.

  3. On 24 February Darren Hobbs and Charge hired lorries in the United Kingdom and drove them to France. The lorries were searched at customs on their return and were found to be loaded with 33 and 26 illegal immigrants respectively. The two lorries were accompanied by a lorry marked with “J Hobbs” insignia. Stephen Hobbs and John Hobbs were travelling in it. That lorry was empty apart from tools and tyres and the prosecution contended that it was a decoy lorry to divert the attention of the authorities from the other two lorries. The livery on the lorry was the same as that on the lorry stopped on 7 February.

  4. All four appellants were arrested. At interview, they denied knowing that the illegal immigrants were in the lorries.

  5. When sentencing the appellants, the judge referred to the scale of the operation and the financial motive. He described Stephen Hobbs and John Hobbs as the moving forces in the conspiracy with Stephen at the centre of it and establishing contacts. The judge accepted that Darren Hobbs and Charge were brought into the conspiracy at a later stage and took part in one trip. The judge said he would not distinguish those two from each other as far as culpability was concerned.

  6. It is submitted that the sentences were too long but the main point taken is that the sentences on Stephen Hobbs and John Hobbs were beyond the powers of the Court. On behalf of Darren Hobbs and Charge, it is submitted that if the sentences on the two principal accused are reduced, there should be a proportionate reduction in their sentences.

  7. The legal point arises because on 14 February 2000, the sentence for the substantive offence, on which the power to sentence for conspiracy depended, was increased from 7 years to 10 years (Immigration and Asylum Act 1999 section 29 and Immigration and Asylum Act 1999 (Commencement No 2 and Transitional Provisions) Order 2000 (SI 2000 No 168)). A single conspiracy had been charged in the indictment the date being given as “between the 1st day of January 2000 and the 9th day of March 2000”. The prosecution put the case on the basis that the conspiracy existed before 14 February 2000. An overt act, indeed the operation during which the largest number of illegal immigrants was carried, was, however, on 24 February.

  8. The point was taken before the judge that in those circumstances the maximum sentence was one of 7 years. The judge ruled that no element of retroactivity was involved because the conspiracy continued after 14 February.

  9. Mr Ward submits that the judge was correct. Mr Ward had to accept that because a single conspiracy including all four appellants was charged, the agreement must be treated as having been made before 14 February. His submission is that conspiracy is a continuing offence and the conspiracy was continually renewed while overt acts were committed in pursuance of it. Because the conspirators silently agreed to continue their agreement after 14 February, the additional sentencing powers created could be exercised.

  10. It is common ground that in cases where a series of substantive offences is based on a continuing course of conduct, and the offences straddle the date when the powers of sentence are changed, the better course is to prefer distinct counts for the period before and the period after the relevant date (Cairns [1998] 1 Cr App R (S) 434).

  11. For the appellants, reliance is placed on Article 7(1) of the European Convention on Human Rights which provides that no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed and also provides:

    12. “Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”
  12. The criminal offence is conspiracy, it is submitted, and the conspiracy was complete when the agreement was made. The essence of conspiracy is the agreement. When two or more agree to carry their criminal scheme into effect, the very plot is the criminal act itself (Mulcahy v R (1868) LR HL 306 at 317). Since the offence is complete when the agreement is made, the powers of sentence are fixed at that time, at any rate if the change is adverse to the defendant.

  13. Reference is made to the decisions of this Court in Khurshid Ahmed (unreported, transcript 8 February 2000) and Brown & Ors (unreported, transcript 7 December 2001) where the Court held that Khurshid Ahmed was binding on them.

  14. In Khurshid Ahmed, conspiracies were charged as covering dates which straddled 1 November 1995. On that date, the powers of a judge with respect to confiscation orders were changed in a manner which, on the facts of that case, were adverse to the defendant. A discretion in the judge was removed. Overt acts in pursuance of the relevant conspiracies had occurred both before and after 1 November. Giving the judgment of the Court, Sir Charles McCullough stated:

    15. “Counsel’s submission is that as the conspiracies in Counts 1 and 2 ran from 1st January 1995, the offences in Counts 1 and 2 were being committed before and after 1st November 1995. That being so in these proceedings the appellant was ‘convicted ( of an offence which was committed before [1st November 1995]’. We agree. It follows that the judge had the discretion to make an order in the full agreed sum of £40,000 or a lesser sum or none at all.”
  15. In Brown, upon the same statutory provision, it was argued on behalf of the defendant that the offence of conspiracy was complete when the unlawful agreement was made, which was before 1 November 1995. The prosecution submitted that the offence of conspiracy continued as long as there were two or more parties to it intending to carry out the design. On that approach, the sentencing regime existing after 1 November 1995 could apply. Referring to Khurshid Ahmed, Mantell LJ stated:

    16. “It was the Court’s decision, therefore, that even where a conspiracy straddles the date of the 1995 amendments coming into force the Act did not apply even, as was the case, if overt acts were carried out after that date. The decision is exactly in point and, without more, binding on us.”
  16. We respectfully doubt whether the Court in Brown was bound because the Court in Khurshid Ahmed, while finding that the offence was being committed before 1 November, did not find that it was not still being committed after 1 November 1995. In that case, it was sufficient for the defence to establish pre 1 November powers in the judge. In Brown, it was necessary to exclude different post 1 November powers.

  17. Having said that, we consider that the approach of the Court in both cases supports the case of the present appellants. Defendants should not be affected adversely, with respect to powers of sentence, by changes in the law occurring during the currency of a conspiracy entered into before the changes.

  18. The Court has considered DPP v Doot [1973] AC 807. The issue was as to the jurisdiction of the English Courts where conspiracy is charged. The point was taken that the conspiracy was formed outside the jurisdiction. It was complete as a crime when the agreement was made and there was no jurisdiction in the English courts.

  19. That submission was rejected. Lord Wilberforce stated, at p 818B-C:

    20. “... if it could, what difference should it make if the conspiracy is directly proved or is admitted to have been made abroad? The truth is that, in the normal case of a conspiracy carried out, or partly carried out, in this country, the location of the formation of the agreement is irrelevant: the attack upon the laws of this country is identical wherever the conspirators happened to meet; the ‘conspiracy’ is a complex, formed indeed, but not separably completed, at the first meeting of the plotters.
    A legal principle which would enable concerting law breakers to escape a conspiracy charge by crossing the Channel before making their agreement or to bring forward arguments, which we know can be subtle enough, as to the location of agreements, or, conversely, which would encourage the prosecution into allegation or fiction of a renewed agreement in this country, all this with no compensating merit, is not one which I could endorse.”
  20. Viscount Dilhorne stated at p 822H:

    21. “When there is agreement between two or more to commit an unlawful act all the ingredients of the offence are there and in that sense the crime is complete. But a conspiracy does not end with the making of the agreement. It will continue so long as there are two or more parties to it intending to carry out the design.”

    A similar approach was adopted by Lord Pearson (p 827C-E) and Lord Salmon (p 835D). The decision was also based on the broader ground that the offence had a sufficient link with England for purposes of jurisdiction. A conspiracy abroad to commit a crime in England is a common law offence when acts in furtherance of it are committed in England (Lord Salmon p 835H, Lord Wilberforce p 818E, Lord Pearson p 827F).

  21. Save for a proviso which has no application on the present facts, the obligation in Article 7(1) is strict. It is however argued, relying on the reasoning in Doot, that the offence of conspiracy “was committed”, in Article 7 terms, both before and after 14 February 2000. The most serious of the acts implementing the conspiracy occurred on 24 February.

  22. The general principles on which Article 7 is based were considered by the European Court of Human Rights in SW v United Kingdom: VR v United Kingdom [1995] 21 EHRR 363 at 398:

    23. “34/32. The guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as in underlined by the fact that no derogation from it is permissible under Article 15 in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment.
    35/33. Accordingly, as the Court held in Kokkinakis v Greece, judgment of 25 May 1993, Article 7 is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage: it also embodies, more generally, a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy. From these principles it follows that an offence must be clearly defined in the law.”
  23. We are not able to accept the submission of the prosecution. When jurisdiction is in issue, the law permits a flexible approach. The English Courts may claim jurisdiction where the conspiracy has a substantial connection with England, for example by virtue of the commission within the jurisdiction of acts implementing it. Such flexibility is not however in our view appropriate when considering the retroactive operation of sentencing powers. For this purpose a strict, narrow and certain view as to when the offence is complete should be applied and not a more extensive and flexible construction. It is complete when the agreement is made. The extent of sentencing powers should not in any event depend on potentially complex questions of fact as to when conspirators performed acts implementing the conspiracy.

  24. Reference was made in Brown to a decision of the European Commission of Human Rights on 6 April 1994 in In Re C (Application No 2268/93). Counsel did not refer to the case. We have tried to follow it up. The Commission declared inadmissible a complaint that a confiscation order breached Article 7. The submission was that the relevant provisions of the Drug Trafficking Offences Act 1986 came into force after the last importation in which the applicant was involved pursuant to an ongoing conspiracy. A renewed application for leave to appeal had been refused by the full Court of Appeal on 23 March 1993. No transcript of the ruling is available and we do not know the basis on which leave was refused.

  25. Our view on the substantive question, and our agreement with the conclusion in Brown, are such that we are not deterred from our conclusion by the possibility of a conflicting decision in 1993 upon a leave application. The decision of the Commission pre-dated the decision of the European Court of Human Rights in Welch v United Kingdom 20 EHRR 247 where it was held, contrary to the view of the Commission, that a confiscation order amounted to a penalty within the meaning of Article 7(1).

  26. Charge has no convictions apart from a motoring offence, and the judge was right to sentence the other defendants: “without regard to any previous convictions that you may have”. The businesses of the Hobbs provide employment for many people. This is not an offence in our view where significant weight can be given to personal mitigation.

  27. The offence was a most serious one. Had he had power to impose the sentences he did, the judge would have been justified in doing so. The relevant maximum sentence is however one of 7 years. We are not impressed with the argument that, when deciding upon sentence, the same proportion of that figure should be taken as the judge took as a proportion of 10. The sentence he imposed was at a level where a discount from the perceived maximum may have been appropriate. That consideration has very much less force on a maximum of 7 years.

  28. In our judgment, having regard to the scale and persistence of the illegal venture, its seriousness, and the cunning with which the operation was carried out, the then existing maximum punishment of 7 years imprisonment is appropriate in the case of Stephen Hobbs. There will be some scaling down of the other sentences. In the case of John Hobbs a sentence of 6 years imprisonment is amply justified and is substituted and in the cases of Darren Hobbs and Warren Charge sentences of 30 months are substituted. Sentences of 3 years were entirely justified but a modest scaling down is appropriate if the longer sentences on the co-accused are reduced.

  29. We do not need to consider whether it would have been possible to charge two conspiracies in this case, one before and one after 14 February 2000. A possible mischief mentioned by the prosecution as following from our conclusion, is of conspirators timing their unlawful agreements so as to avoid the consequences of a change in the law. The possibility does not appear to be a high one in practice. We make no ruling on the possible courses available to the prosecution in that event, which were raised in argument. They may well exist in some situations; the charging of more than one conspiracy, especially when plot and sub-plot arise (Coughlan and Young (1976) 63 Cr App R 33) and the charging of substantive counts, for example.

  30. To the extent we have indicated, these appeals are allowed.

© 2002 Crown Copyright

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URL: http://www.bailii.org/ew/cases/EWCA/Crim/2002/387.html