Conspiracy to Supply Drugs Cases
As long as drugs are illegal, an industry will exist moving money outside the taxed economy and this will motivate the police and National Crime Agency to target anyone involved. The law of conspiracy is used in this country to create liability for all of those who are part of a criminal business, not just the bosses. This can mean that mere association can result in suspicion and even criminal charges being brought, sometimes making victims out of people who appear to not be the main players.
At Mary Monson Solicitors, we represent clients in conspiracy to supply drugs cases, being concerned in the supply of drugs cases, production cases, and conspiracy to import cases. These cases often carry the heaviest sentences, and we understand the strain they can put on suspects, defendants and their families.
Conspiracy – The Law
The word conspiracy conjures images of smoky rooms and secret plots, when in fact the truth is a little less exciting. The actual legal meaning of the word is a plan between two or more people to commit a criminal offence or offences. Not all parties have to know all details of the plan for it to be conspiracy, but the defendants must have knowledge of the offence or offences to be guilty in law. You cannot be guilty if you are not part of the agreement or plan, or do not know you are. You also cannot be guilty of conspiring with your wife or civil partner.
Conspiracy in drugs cases
A conspiracy case concerning drugs usually focuses initially on the main organisers in the alleged criminal operation, and is broadened to include anyone who may have knowingly assisted in the operation. This could include couriers, lower level dealers, or even people accused of assisting through money laundering.
The different types of drugs conspiracy case will usually involve one of four main activities:
Conspiracy to supply
This in effect means dealing, but can involve large scale distribution.
This means manufacture of drugs, whether of organic substances such as Cannabis, or of synthetic substances such as MDMA.
Conspiracy to import
Once drugs are taken into the country from abroad, even if the reality is that it is still a conspiracy to supply, the prosecution is one of conspiracy to import.
Being concerned in supply
This is a charge that often one or more defendants in a conspiracy to supply case will be charged with when their involvement is not major. It is less serious than the others, but can still attract a prison sentence on conviction.
Generally speaking, the closer the conspiracy is to source, the more serious it is, so larger scale distribution, importation and production are progressively the most serious types of charge, although the different roles of defendants can make a big difference as how they are treated if convicted.
Either because of the harm that drugs can do in society or perhaps more likely because of the possibility of the state confiscating the assets of defendants who are convicted, serious money is invested by the police in investigating large scale drugs cases. This means that costly surveillance of several weeks or even months is often authorised, which generates a great deal of evidence which the prosecution may rely on. This can be in the form of undercover officers observing suspects, or even phone taps and evidence obtained from bugging houses or cars. Technology exists for mobile phones to be tapped, but this is very expensive and is rarely seen in cases which are not huge in scale or involve an issue of national security.
The investigations themselves often take several months before arrests even take place, and police officers (who are often specialists in drugs cases) will often aim to either arrest everybody together at the scene where drugs or money (or both) are present, or at least coordinate arrests of different individuals to take place at the same time in different locations.
The use of informants and undercover police officers is widespread in this type of case. This can present certain problems for both the defence and the prosecution. The prosecution will often not mention the existence of police informants to the defence, instead relying on a ruling from the judge that it is not in the public interest to disclose them. The defence team should have a healthy sense of paranoia in any drugs conspiracy case about what may have been concealed or not fully explained by the other side in the case. If the defence team aggressively apply the right pressure upon the prosecution to name witnesses or sources of intelligence who are relevant in the case, in some cases it happens often enough that the whole case will collapse.
The issue of entrapment where police have been working undercover within the allegedly criminal organisation must be considered by the defence. If the fact that an undercover officer has been present is not disclosed, this may mean that any conviction is subject to being overturned on appeal, as famously happened to around 100 defendants in the London City Bond Case, probably the biggest illegal alcohol distribution conspiracy in UK history.
As with any serious criminal offence, the role of forensic science in recent years has given the prosecution an advantage it perhaps lacked in the last century, where sometimes dubious confessions seemed to feature more often as part of the case. Fibre lifts from vehicles, clothes and chairs, fingerprints and even DNA play an increasing role, and while sometimes not impossible to deal with, can be a challenge. This is especially true when they are found on movable objects such as cigarettes, drinks bottles etc.
But the single most damaging type of forensic evidence in drugs conspiracy is evidence relating to telephones, and especially mobile phones. Cell site analysis, which is used to triangulate the approximate location of the holder of the phone handset can prove the presence of a person at a scene, or at least within a kilometre or so depending on the performance of the local mobile radio masts. Telephone traffic (records of calls between mobiles, and how long the calls take) can be shown from mobile phone provider records. Even if pay as you go ‘burner’ mobiles with no registration can be claimed by the prosecution to belong to a certain individual if that person uses the phone to call known associates or family members. That said, no defence lawyer should accept that any of this evidence is automatically solid and should not be challenged, just because the prosecution expert uses complicated words as if they are undeniable truth. The defence team should instruct a forensic telephone expert of their own whenever the prosecution claim ownership of a phone, or significance of its use.
Text messages of course can be damning evidence. Even code words for drugs which seem clever at the time hold little mystery when looked at in the cold light of day by a jury who know that, for example, drugs have been found. Where there is evidence of post codes and numbers in texts, the lawyer may have to look at damage limitation, although only once the evidence has been looked at critically. Again, forensic evidence should never just be accepted where there is a realistic possibility of challenge.
Other Aspects of Strategy
As with any conspiracy allegation, a defence lawyer in a drugs conspiracy case should be able to understand the roles of the people in the case, both according to the client and the prosecution, of the different defendants and other characters in the case. Some defendants will be described (fairly or unfairly) by the prosecution as ‘main players’ at the head of the conspiracy. Others may be workers, delivery ‘gofers’ or just people through whose bank accounts money has been deposited or transferred. But if the members of the jury understand from the defence a better or more logical version of how these relationships were in reality, they may draw the conclusion that the person accused did not even have knowledge of the criminal plan he or she was caught up in. To be guilty of a conspiracy, being part of the plan means knowing about the plan. If he or she lacks knowledge of the criminal aspect, the defendant must be acquitted by the jury.
Roles and Categories
The roles that defendants are placed in as part of the pecking order of a drugs conspiracy case have taken on a whole new significance in recent years. Prosecutors will tell the court that defendants fit into one of three categories roles. The roles are leading, significant, and lesser. Leading role means just that: the boss of the operation or close enough to source or decision making that the person could be regarded as a boss of some sort. Significant role means the second level of responsibility in the distribution, importation, or production operation. It refers to the trusted right hand people in the conspiracy. The person in a significant role may be aware of the extent and the criminal enterprise and may be able to influence it by managing other dealers or helpers, and may benefit financially from involvement. Lesser role means the helpers, lookouts, low level dealers and mules. Although the court may regard them as criminally responsible, when it comes to sentence, they receive sentences substantially lower than Leading and Significant roles do.
The second aspect of a case which the prosecution will say is of real importance is the category of the case. Category 1 cases may involve many kilos of drugs. The leading and significant role defendants on a case for cocaine or heroin could be looking at sentences into double figures if convicted. A category 4 case however, where low level and local cottage industry type activity is alleged, may result in much lower sentences, with the low level ‘Lesser role’ defendants looking at possibly even only getting community sentences, although prison may still be a possibility.
Of course, the type of substance will affect the total sentence length if the client is convicted. Class A substances will always be treated more seriously by courts than cannabis or ketamine.
The Newton Hearing – Guilty but not in the way the prosecution says
Of course, all of the above relating to roles and categories is only really relevant if the client has been convicted and is being sentenced. Where that is happening, the prosecution and defence lawyers will often be in a negotiation battle over what category the case is and what role the defence lawyer’s client is. It goes without saying that nobody wants to be in a Leading role for sentence. It is also a battle sometimes to get a prosecutor to accept that a defendant was a lesser role, and therefore not in any way a main player. These conversations can sometimes be won, but if the prosecutor is being unreasonable, the only remaining option may be to bring the fight out into the open and have the judge decide. This happens in a sort of mini trial without the jury called a Newton hearing. The judge hears the evidence, and the defendant’s evidence is heard in the same way it would be in a trial. The process is quicker than a trial in front of a jury but takes a similar format. The judge will make a decision at the end, but instead of saying Guilty or Not Guilty as a jury would, the judge will explain his or her opinion of the extent of the defendant’s guilt. This can mean that the judge either accepts or doesn’t accept the defence basis of plea (a written document from the defendant saying ‘I’m guilty, but not in the same way you say I am’), and it could affect the opinion the judge gives on the role of the defendant in the case.
If the prosecution are being stubborn and unrealistic, calling its bluff and going to a Newton hearing may seem like a good idea. It gives the client a possibility of being sentenced more leniently because the judge can see that there really was less involvement than alleged. However, if the Newton hearing goes wrong, then the whole case can backfire. All credit can be lost as if the client had run a full trial in front of jury and lost. This means that the lowest risk option may be to take what the prosecution are offering without risking a Newton hearing, even if it is through gritted teeth. But this is a decision the client must make, and the defence solicitor and barrister must not be afraid of a fight if the client feels strongly about it. There are risks to running Newton hearings, but the Newton hearing wouldn’t exist if they were never a good idea.
The Trial – should the client take the stand?
One fundamental question that can sometimes arise in drugs conspiracy cases is whether the client should even given evidence by answering the questions of the barristers in front of the jury. It may seem obvious that somebody who wants to be believed should always want to publicly set the record straight, but it is important to remember that it is up to the prosecution to prove the case against the defendant. The defendant doesn’t have to prove his or her innocence. Where the prosecution case is weak, sometimes the major damage that can be done to the defence can be when the defendant is cross examined by a clever prosecuting barrister, and performs badly under the pressure. Members of the jury may be open minded about the defence and even suspicious of the prosecution, but once they hear the defendant in the box actually come down against him or her, the impression may be lost. If the evidence is weak, a major strategic decision the client and the defence team will have to make is whether to take the stand at all. Not giving evidence may seem like running a dangerous gauntlet, but it is sometimes a better path than the safety of actively putting forward an unattractive defence case in the witness box, especially if the defendant has already given an account in interview or in document form in a pre-trial defence case statement.
Where a person or his or her family is worried about a major drugs conspiracy case, of course finding an experienced specialist solicitor is a good first step. But the solicitor’s role is one of strategy and preparation, not of performance in court. The performance is speaking for the client to the judge and also of course the jury. This is advocacy, and the wigged and gowned lawyer who speaks for the client is an advocate. Historically this was always done by barristers who were self employed and independent of the solicitors they did work for, but times have changed somewhat. Solicitors have now been able to qualify to act as advocate in Crown Court cases. These advocates are called Higher Court Advocates or Solicitor Advocates, and while four or five years ago their standard was regarded as generally second rate, at the more junior end some expertise and skill is beginning to be seen. The preference for very serious cases must still be a barrister, but the Solicitor Advocate in more straightforward cases, or as the junior advocate supporting the more experienced barrister is not the joke it once was.
When choosing any type of advocate for a drugs conspiracy case, the main consideration for the client must be what experience the advocate has in this type of case. Have advocate and solicitor got a clear and intelligent plan for the case? Are they not only experienced but also well regarded. It can be hard to tell if a lawyer’s reputation in the industry is justified. Like any successful professional, a lawyer can fall into the trap of having such a great reputation that it becomes more important than doing a good job on the only case that matters – the present one. Doing research and getting opinions from people in prison and on the outside is the best way of trying to find out whether someone is as good as he or she claims. Assuming that an advocate is good simply because they have the wig and the qualification can be as dangerous as picking the first plumber you see in the Yellow Pages and assuming you will get a professional and reasonably priced service.
No Short Cuts
Ultimately, no matter how talented the team, there is no substitiute in a serious criminal case for getting down to it and working with the client. This means visits, usually in person but also occasionally on videolink as reduced fees mean that lawyers must be creative to get as many hours in as possible. Not visiting clients is both unethical and foolish. They will simply find new lawyers as they would be entitled to do. To know the case, the best source of information is the client. It doesn’t pay to wing it where the stakes are high, and in conspiracy cases they are indeed high. Going through statements properly, and especially focusing on the weak points in the case in proper detail can prevent the defence case falling to pieces at trial.
These two articles have been a summary of one lawyer’s perspective on good case preparation and strategy, but every case is different. If a legal team is properly committed to its client and has enough experience to make that commitment work, the end result will often be better for it.