Conspiracy to Supply Drugs Cases: A "Catch-All" Approach
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 or agreement 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 a person 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.
An agreement does not need to be set out in writing in advance or even expressed verbally between different individuals - the prosecution will often rely on evidence of a person's actions and invite a jury to conclude that their actions mean they must have agreed to participate in a conspiracy. In other words, they will invite a jury to draw an "inference" from a person's behaviour.
Conspiracy in drugs cases
A conspiracy case concerning drugs usually focuses initially on the main organisers in the alleged criminal operation, and is then expanded 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 the manufacture of drugs, whether of organic substances such as Cannabis, or of synthetic substances such as MDMA.
Conspiracy to import
If the agreement between different people is to bring drugs into the country from abroad, then it may well be that the prosecution decide to proceed with a charge of conspiracy to import drugs, even if the end goal of the conspiracy is to then supply the drugs.
Being concerned in supply
This charge may be considered by the prosecution where it appears that an individual's involvement has been on the lower end of the scale or minor compared to others. It is less serious than the others, but can still attract a prison sentence on conviction.
Generally speaking, the closer the conspiracy is to the source of the drugs, the more serious it is. So, for example, 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 to 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 typically only seen in very large-scale cases or those cases which involve and issues 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.
Phones will very often be seized upon arrest and then sent away for analysis so that the police can look at evidence of communications between individuals and, via cell site evidence, the movements of those involved. This is a process which can take many months and, sometimes, years.
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. Conspiracy to supply drugs solicitors should carefully study what may have been concealed or not fully explained by the prosecution. If conspiracy to supply drugs solicitors 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 can lead to the collapse of the whole case.
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 require particular attention from conspiracy to supply drugs solicitors. 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. This can include unregistered pay as you go "burner" mobiles if the police are able to attribute them to a particular user. All of this evidence must be scrutinised by conspiracy to supply drugs solicitors, whether to assess the strength of the attribution of the device, or to look to put the frequency of contact into context. Conspiracy to supply solicitors must consider instructing a forensic telephone expert and analyst to test and put the relevant evidence in context.
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 conspiracy to supply drugs solicitor 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, conspiracy to supply drugs solicitors 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.
Absolutely fundamental to any strategy in these cases is for conspiracy to supply solicitors to work closely with their client in scrutinising the evidence relied upon against them. It can often be the case that the evidence itself is accepted, but that the interpretation attached it by the prosecution is incorrect. As such, conspiracy to supply solicitors must work hard with their client to make sure that the correct interpretation is woven into a compelling narrative for the jury.
Roles and Categories
The roles that defendants are placed in as part of the pecking order of a drugs conspiracy case are of significance. This is particularly so when it comes to sentencing. 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. Conspiracy to supply drugs solicitors must take great care to scrutinise how the prosecution have arrived at the category of a case. It can be the case that the overall size of an operation, and therefore the relevanty category within which it sits, is little more than an informed guess. This may be based on the value of drugs seized or estimates as to how many previous shipments there may have been. It might also be heavily reliant upon the estimates of a police officer. This may all be open to challenge.
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 conspiracy to supply drugs solicitors may engage in a negotiation as to the category of case and the defendant's role. 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 their 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 conspiracy to supply drugs 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 give 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, up until that point, have been open-minded about the defence and even suspicious of the prosecution, but a poor performance from a defendant in the box can mean that the jury is lost. If the evidence is weak, a major strategic decision the client and conspiracy to supply drugs solicitors acting for them 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 their family is worried about a major drugs conspiracy case, of course finding an experienced specialist conspiracy to supply drugs solicitors 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, perhaps a decade 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 second-rate choice it might previously have been.
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 conspiracy to supply drugs solicitors 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 substitute in a serious criminal case for getting down to it and working with the client. This means meetings, usually in person or on videocall. 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.
This article is a summary of good case preparation and strategy, but every case is different. Free legal advice should be sought at an early stage. If the conspiracy to supply drugs solicitors are fully committed to their client and have enough experience to make that commitment work, the end result will often be better for it.
Senior judges and the Law Commission have already expressed concern about the way that this part of the law is being used in modern times.
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