Lee Livesey & Others [2019] EWCA Crim 877
Summary
R v Livesey & Others [2019] EWCA Crim 877 concerned appeals against conviction and sentence arising from a large‑scale conspiracy to supply Class A drugs across northern England between April and November 2015. The Court of Appeal (Lady Justice Sharp, Mr Justice Goose and HHJ Sloan QC sitting as a judge of the court) refused permission to appeal in all respects.
Lee Livesey had been convicted after trial of conspiracy to supply Class A drugs and on 26 April 2017 pleaded guilty to a further like offence. He was sentenced to a total of thirteen‑and‑a‑half years’ imprisonment, twelve years of which related to the trial indictment. Shaun Morfitt and Colin McCaffrey were convicted after their joint trial on 23 September 2016 and sentenced respectively to 18 years’ and 22 years’ imprisonment. The single judge had refused permission to appeal against conviction and sentence by Morfitt and McCaffrey and against sentence only by Livesey. All three renewed their applications.
The conspiracy involved over 17 men and operated from stash houses in the Greater Manchester area. During the investigation police recovered 14 kilograms of Class A drugs in four seizures with a potential street value of £4.2 million. The conspirators used elaborate counter‑surveillance techniques including multiple and encrypted mobile phones, frequent handset changes, intermediaries and specially adapted vehicles with concealed compartments. Drugs were distributed in one or two kilogram blocks marked with indicators of purity. High‑purity drugs above 70 per cent were marked “Rolex”, “Prada” or “AMG”; lower‑purity drugs bore markings indicating the cutting agent used. The operation was headed by Colin McCaffrey and his brother Dean McCaffrey. Morfitt led an organised crime group in the northeast of England to whom the McCaffreys supplied substantial quantities for onward distribution. Livesey played a greater role after the arrest of two co‑conspirators on 8 September 2015, managing a stash house at Willow Court from which other distributors and couriers obtained drugs.
On 8 September 2015 a conspirator was stopped travelling to the northeast. His vehicle was searched and two packages of cocaine totalling just under 2 kilograms at purities of 73 per cent and 76 per cent were found, along with £1,000 in cash, multiple mobile telephones and a diary containing a dealer list. A search of another conspirator’s home address recovered eight packages of cocaine totalling almost 6 kilograms at purities between 61 per cent and 78 per cent and seven packages of heroin weighing almost 4 kilograms at purities between 40 per cent and 58 per cent. Further seizures followed on 6 October 2015. On that date Dean McCaffrey’s vehicle was recovered. Inside was an address book containing 134 entries with contact details of individuals including several admitted conspirators and Trevor Hurley, a man said to have assisted the McCaffreys in evading arrest. The final page contained a handwritten note referring to encryption programmes. The book listed 73 individuals, predominantly male. Many entries included addresses, contact numbers, next of kin details and in certain cases prison references and inmate numbers. Forty had convictions for drugs offences including 26 for supply of Class A drugs. Thirty‑eight had convictions for serious offences and 21 for possession of weapons including firearms. Others had convictions for money laundering and witness or jury intimidation. Two overseas contacts were recorded including a Colombian national with a conviction for being concerned in the importation of Class A drugs.
Morfitt and McCaffrey advanced a shared ground of appeal that the trial judge, His Honour Judge Walsh, had wrongly permitted admission under section 100(b) of the Criminal Justice Act 2003 of the previous convictions of non‑defendants identified within the McCaffrey address book. The defence submitted that the application was a disguised attempt to pursue a defendant’s bad character application which should have been made under section 101, that the antecedent history was not relevant and did not have substantial probative value in relation to a matter in issue, that the evidence amounted to guilt by association and that even if admissible it should have been excluded under section 78 of the Police and Criminal Evidence Act 1984 because its prejudicial effect outweighed its probative value. It was argued that the book was no more than a social contact list compiled by Dean McCaffrey during his time in prison and that it also contained details of non‑criminal associates and organisations.
The judge ruled that the evidence was admissible applying the principles set out in section 100 and applying the safeguards provided by section 78. He noted that the case against each defendant was primarily based on the frequency, timing and nature of communications between them and co‑conspirators. The defence maintained that contact was innocent and social and they were unaware of the conspiracy. The judge considered that there was an abundance of evidence upon which a jury could conclude that the McCaffreys and Morfitt were in contact with admitted conspirators at significant times and on occasions when they were together. The defence case was that such communications were coincidental. The judge concluded that the jury could find that the book fulfilled at least in part the function assigned by the prosecution and that the antecedent details were relevant to whether contact was innocent or conspiratorial. The evidence in principle was relevant, probative and admissible and appropriate direction would be given.
The Court of Appeal agreed with the reasons given by the single judge, Sir John Royce, in refusing permission. The judge had correctly summarised the test under section 100(1)(b) that evidence is admissible if and only if it has substantial probative value in relation to a matter in issue in the proceedings and is of substantial importance in the context of the case as a whole. The judge analysed the prosecution and defence cases with care. The book itself was clearly admissible. The analysis of the background entitled the judge to conclude that the convictions of many of those in the diary gave rise to the obvious inference that they were involved in drug dealing or money laundering. The network of contacts was far‑reaching geographically and significantly included contacts in the northeast and a Colombian with a conviction for importing Class A drugs. The fact that such a large number had convictions for drug dealing and associated offences was a factor in rebutting the suggestion it was simply a social contact book. The judge was entitled to find that a jury could conclude the book was a resource to be utilised in pursuance of the criminal conspiracy. The evidence did have substantial probative value in relation to a matter in issue and was of substantial importance in the context of the case as a whole. The judge carefully considered whether the prejudice was such as to adversely affect the fairness of the trial and was entitled to conclude that it did not. The direction given in the summing‑up properly and fairly directed the jury how they should approach the fact that many in the book had previous convictions and included a proper warning against guilt by association. It was of note that the judge excluded Morfitt’s relatively recent previous conviction for conspiracy to supply Class A drugs on the basis that it would be too prejudicial and the version of the book before the jury was edited to remove his prison number.
Morfitt also submitted that the judge failed adequately to present his defence case during the summing‑up, thereby minimising its significance before the jury. Two points were advanced: first, that the judge pooled the cases of the defendants together and in an inferential case it was particularly important that Morfitt’s case was separately and discretely dealt with; secondly, that in relation to an individual called “Cleaveland 2” there was no evidence of Morfitt’s association with him but his case in this regard was never clearly set out. The Court of Appeal examined the summing‑up very carefully and concluded that none of the criticisms were soundly based whether looked at individually or together. The judge gave a careful, clear and succinct summary of the issues in the case and the evidence that went to those issues. The court did not accept that Morfitt’s case was not fairly put to the jury. During the course of the summing‑up, not once but on three occasions and twice before the part particularly complained of, the judge directed the jury about the importance of reaching separate verdicts on each defendant. The jury could have been in no doubt whatever that they were required to consider the case of each defendant separately or of what the defence of each defendant was.
Livesey sought permission to appeal against sentence only. He was aged 41 with seven previous convictions including in 1998 a sentence of 57 months’ imprisonment for four offences of supply of Class A drugs and in 2005 a sentence of 12 years’ imprisonment for section 18 wounding and firearms offences. At the time of the instant offences he was on licence in relation to that sentence. In sentencing Livesey the judge concluded that his role was significant and in assessing harm he found it to be within category 1. The judge concluded that the drugs involved in the whole conspiracy greatly exceeded the 14 kilograms recovered from seizure by the police. Although he was not able to reach a concluded total, the inference that more than 14 kilograms of Class A drugs had been supplied was unavoidable given the traceable movement of the conspirators over the period of the conspiracy. The judge was satisfied that Livesey had played a part in the execution of the conspiracy from an early date but that his involvement became much more prominent after the arrest of two co‑conspirators on 8 September. The closeness of Livesey to one of the key conspirators with whom he was in regular contact and had frequent meetings, coupled with his management of a stash house, made his role significant. He had a clear financial motivation and an awareness and understanding of the operation. Adopting the starting point of 10 years under the guidelines with a sentence range of 9 to 12 years, the judge identified additional seriously aggravating factors, namely that he was serving a licence after being released from custody and had previous drugs convictions. This caused the sentence to be increased from a starting point of 10 to 12 years. The Court of Appeal held that there was nothing wrong with the judge’s approach nor with the sentence which he arrived at. It could not be said to be arguably manifestly excessive. The judge had heard evidence over the course of some two months and was entitled to reach the conclusions he did both as to Livesey’s role and the issues of culpability and harm which were not confined to the amount of drugs which were found or which could be directly connected with Livesey but had regard to the nature of the conspiracy as a whole and to the level of purity of the drugs concerned.
Morfitt also applied for permission to appeal against sentence. In sentencing him after his conviction the judge concluded that he was in charge of the operation in the northeast of England. He received repeated supplies of Class A drugs which he distributed to others for onward supply onto the streets. It was clear that others were used by Morfitt to facilitate the collection of drugs and their delivery. He was involved in meetings with the McCaffreys from the beginning of the conspiracy and arranging supplies of drugs. His role was assessed as a leading one. The quantity of drugs was on a commercial scale with ten completed trips from Manchester to the northeast of England. The judge concluded that Morfitt had a controlling role over others unidentified to facilitate his drugs trade. He had a clear expectation of very substantial gain and had used his significant business interests to provide cover for his criminal activity. The harm category was at the highest level. On the basis of a leading role and category 1 harm the starting point for sentence was 14 years with a range from 12 to 16 years. Given that the quantity of Class A drugs involved in the conspiracy was substantially higher than the starting point assumption of 5 kilograms, the judge concluded he was required to impose a sentence above the top of the sentencing range. Morfitt also committed the offence whilst on licence after his release from custody for a sentence of 75 months for an offence of section 18 wounding in 2010. This significantly aggravated the seriousness of the offence further. The judge concluded that the appropriate sentence after a trial was 18 years’ imprisonment. The Court of Appeal held that there was nothing wrong with the judge’s analysis or the conclusions that he reached. It was unable to accept the submission on behalf of Morfitt that his role should not have been determined as a leading one. Morfitt’s counsel referred to earlier case summaries before the trial began where Morfitt was described as a “customer distributor” and to some documents produced in relation to confiscation proceedings. The court held that such matters were neither here nor there. What mattered was the evidence called at trial and the judge’s analysis of it. The judge gave cogent reasons for concluding that Morfitt’s role was a leading one.
Colin McCaffrey also applied for permission to appeal against sentence. In sentencing him to 22 years’ imprisonment the judge concluded that he, together with his brother, was the organiser and orchestrator of the Manchester connection. Although there may have been others who played a leading role their identities remained unknown. The judge reached the sure conclusion that the McCaffreys played a leading part in the formulation and execution of the conspiracy. In view of the quantity and purity of the drugs seized, the judge stated that McCaffrey was close to the original source of supply of drugs and was responsible, together with his brother, for directing and organising the activities of a significant number of others in the chain of supply. Having regard to the quantity of the drugs involved and their valuation, there was a clear expectation of very substantial financial gain. The harm under the drugs guidelines was in category 1. The starting point being based on 5 kilograms of Class A drugs was substantially exceeded. In referring to the guideline at step 1, the judge concluded that this conspiracy to supply Class A drugs was on the most serious and commercial scale which required sentences of 20 years and above. Given the leading role played by McCaffrey, the judge moved outside the guideline range of up to 16 years and imposed a sentence of 22 years’ imprisonment. McCaffrey’s counsel submitted that there was evidence that he was the right‑hand man of his brother but he was not at his level. The Court of Appeal did not accept those submissions. The judge’s reasons for arriving at his conclusions were cogent and the court did not accept that he ascribed or even arguably ascribed McCaffrey with the incorrect role, whether by reference to his brother or otherwise.
In short, the Court of Appeal refused permission to appeal against conviction by Morfitt and McCaffrey and against sentence by Livesey, Morfitt and McCaffrey, finding no arguable merit in any of the renewed applications.
Lee Livesey had been convicted after trial of conspiracy to supply Class A drugs and on 26 April 2017 pleaded guilty to a further like offence. He was sentenced to a total of thirteen‑and‑a‑half years’ imprisonment, twelve years of which related to the trial indictment. Shaun Morfitt and Colin McCaffrey were convicted after their joint trial on 23 September 2016 and sentenced respectively to 18 years’ and 22 years’ imprisonment. The single judge had refused permission to appeal against conviction and sentence by Morfitt and McCaffrey and against sentence only by Livesey. All three renewed their applications.
The conspiracy involved over 17 men and operated from stash houses in the Greater Manchester area. During the investigation police recovered 14 kilograms of Class A drugs in four seizures with a potential street value of £4.2 million. The conspirators used elaborate counter‑surveillance techniques including multiple and encrypted mobile phones, frequent handset changes, intermediaries and specially adapted vehicles with concealed compartments. Drugs were distributed in one or two kilogram blocks marked with indicators of purity. High‑purity drugs above 70 per cent were marked “Rolex”, “Prada” or “AMG”; lower‑purity drugs bore markings indicating the cutting agent used. The operation was headed by Colin McCaffrey and his brother Dean McCaffrey. Morfitt led an organised crime group in the northeast of England to whom the McCaffreys supplied substantial quantities for onward distribution. Livesey played a greater role after the arrest of two co‑conspirators on 8 September 2015, managing a stash house at Willow Court from which other distributors and couriers obtained drugs.
On 8 September 2015 a conspirator was stopped travelling to the northeast. His vehicle was searched and two packages of cocaine totalling just under 2 kilograms at purities of 73 per cent and 76 per cent were found, along with £1,000 in cash, multiple mobile telephones and a diary containing a dealer list. A search of another conspirator’s home address recovered eight packages of cocaine totalling almost 6 kilograms at purities between 61 per cent and 78 per cent and seven packages of heroin weighing almost 4 kilograms at purities between 40 per cent and 58 per cent. Further seizures followed on 6 October 2015. On that date Dean McCaffrey’s vehicle was recovered. Inside was an address book containing 134 entries with contact details of individuals including several admitted conspirators and Trevor Hurley, a man said to have assisted the McCaffreys in evading arrest. The final page contained a handwritten note referring to encryption programmes. The book listed 73 individuals, predominantly male. Many entries included addresses, contact numbers, next of kin details and in certain cases prison references and inmate numbers. Forty had convictions for drugs offences including 26 for supply of Class A drugs. Thirty‑eight had convictions for serious offences and 21 for possession of weapons including firearms. Others had convictions for money laundering and witness or jury intimidation. Two overseas contacts were recorded including a Colombian national with a conviction for being concerned in the importation of Class A drugs.
Morfitt and McCaffrey advanced a shared ground of appeal that the trial judge, His Honour Judge Walsh, had wrongly permitted admission under section 100(b) of the Criminal Justice Act 2003 of the previous convictions of non‑defendants identified within the McCaffrey address book. The defence submitted that the application was a disguised attempt to pursue a defendant’s bad character application which should have been made under section 101, that the antecedent history was not relevant and did not have substantial probative value in relation to a matter in issue, that the evidence amounted to guilt by association and that even if admissible it should have been excluded under section 78 of the Police and Criminal Evidence Act 1984 because its prejudicial effect outweighed its probative value. It was argued that the book was no more than a social contact list compiled by Dean McCaffrey during his time in prison and that it also contained details of non‑criminal associates and organisations.
The judge ruled that the evidence was admissible applying the principles set out in section 100 and applying the safeguards provided by section 78. He noted that the case against each defendant was primarily based on the frequency, timing and nature of communications between them and co‑conspirators. The defence maintained that contact was innocent and social and they were unaware of the conspiracy. The judge considered that there was an abundance of evidence upon which a jury could conclude that the McCaffreys and Morfitt were in contact with admitted conspirators at significant times and on occasions when they were together. The defence case was that such communications were coincidental. The judge concluded that the jury could find that the book fulfilled at least in part the function assigned by the prosecution and that the antecedent details were relevant to whether contact was innocent or conspiratorial. The evidence in principle was relevant, probative and admissible and appropriate direction would be given.
The Court of Appeal agreed with the reasons given by the single judge, Sir John Royce, in refusing permission. The judge had correctly summarised the test under section 100(1)(b) that evidence is admissible if and only if it has substantial probative value in relation to a matter in issue in the proceedings and is of substantial importance in the context of the case as a whole. The judge analysed the prosecution and defence cases with care. The book itself was clearly admissible. The analysis of the background entitled the judge to conclude that the convictions of many of those in the diary gave rise to the obvious inference that they were involved in drug dealing or money laundering. The network of contacts was far‑reaching geographically and significantly included contacts in the northeast and a Colombian with a conviction for importing Class A drugs. The fact that such a large number had convictions for drug dealing and associated offences was a factor in rebutting the suggestion it was simply a social contact book. The judge was entitled to find that a jury could conclude the book was a resource to be utilised in pursuance of the criminal conspiracy. The evidence did have substantial probative value in relation to a matter in issue and was of substantial importance in the context of the case as a whole. The judge carefully considered whether the prejudice was such as to adversely affect the fairness of the trial and was entitled to conclude that it did not. The direction given in the summing‑up properly and fairly directed the jury how they should approach the fact that many in the book had previous convictions and included a proper warning against guilt by association. It was of note that the judge excluded Morfitt’s relatively recent previous conviction for conspiracy to supply Class A drugs on the basis that it would be too prejudicial and the version of the book before the jury was edited to remove his prison number.
Morfitt also submitted that the judge failed adequately to present his defence case during the summing‑up, thereby minimising its significance before the jury. Two points were advanced: first, that the judge pooled the cases of the defendants together and in an inferential case it was particularly important that Morfitt’s case was separately and discretely dealt with; secondly, that in relation to an individual called “Cleaveland 2” there was no evidence of Morfitt’s association with him but his case in this regard was never clearly set out. The Court of Appeal examined the summing‑up very carefully and concluded that none of the criticisms were soundly based whether looked at individually or together. The judge gave a careful, clear and succinct summary of the issues in the case and the evidence that went to those issues. The court did not accept that Morfitt’s case was not fairly put to the jury. During the course of the summing‑up, not once but on three occasions and twice before the part particularly complained of, the judge directed the jury about the importance of reaching separate verdicts on each defendant. The jury could have been in no doubt whatever that they were required to consider the case of each defendant separately or of what the defence of each defendant was.
Livesey sought permission to appeal against sentence only. He was aged 41 with seven previous convictions including in 1998 a sentence of 57 months’ imprisonment for four offences of supply of Class A drugs and in 2005 a sentence of 12 years’ imprisonment for section 18 wounding and firearms offences. At the time of the instant offences he was on licence in relation to that sentence. In sentencing Livesey the judge concluded that his role was significant and in assessing harm he found it to be within category 1. The judge concluded that the drugs involved in the whole conspiracy greatly exceeded the 14 kilograms recovered from seizure by the police. Although he was not able to reach a concluded total, the inference that more than 14 kilograms of Class A drugs had been supplied was unavoidable given the traceable movement of the conspirators over the period of the conspiracy. The judge was satisfied that Livesey had played a part in the execution of the conspiracy from an early date but that his involvement became much more prominent after the arrest of two co‑conspirators on 8 September. The closeness of Livesey to one of the key conspirators with whom he was in regular contact and had frequent meetings, coupled with his management of a stash house, made his role significant. He had a clear financial motivation and an awareness and understanding of the operation. Adopting the starting point of 10 years under the guidelines with a sentence range of 9 to 12 years, the judge identified additional seriously aggravating factors, namely that he was serving a licence after being released from custody and had previous drugs convictions. This caused the sentence to be increased from a starting point of 10 to 12 years. The Court of Appeal held that there was nothing wrong with the judge’s approach nor with the sentence which he arrived at. It could not be said to be arguably manifestly excessive. The judge had heard evidence over the course of some two months and was entitled to reach the conclusions he did both as to Livesey’s role and the issues of culpability and harm which were not confined to the amount of drugs which were found or which could be directly connected with Livesey but had regard to the nature of the conspiracy as a whole and to the level of purity of the drugs concerned.
Morfitt also applied for permission to appeal against sentence. In sentencing him after his conviction the judge concluded that he was in charge of the operation in the northeast of England. He received repeated supplies of Class A drugs which he distributed to others for onward supply onto the streets. It was clear that others were used by Morfitt to facilitate the collection of drugs and their delivery. He was involved in meetings with the McCaffreys from the beginning of the conspiracy and arranging supplies of drugs. His role was assessed as a leading one. The quantity of drugs was on a commercial scale with ten completed trips from Manchester to the northeast of England. The judge concluded that Morfitt had a controlling role over others unidentified to facilitate his drugs trade. He had a clear expectation of very substantial gain and had used his significant business interests to provide cover for his criminal activity. The harm category was at the highest level. On the basis of a leading role and category 1 harm the starting point for sentence was 14 years with a range from 12 to 16 years. Given that the quantity of Class A drugs involved in the conspiracy was substantially higher than the starting point assumption of 5 kilograms, the judge concluded he was required to impose a sentence above the top of the sentencing range. Morfitt also committed the offence whilst on licence after his release from custody for a sentence of 75 months for an offence of section 18 wounding in 2010. This significantly aggravated the seriousness of the offence further. The judge concluded that the appropriate sentence after a trial was 18 years’ imprisonment. The Court of Appeal held that there was nothing wrong with the judge’s analysis or the conclusions that he reached. It was unable to accept the submission on behalf of Morfitt that his role should not have been determined as a leading one. Morfitt’s counsel referred to earlier case summaries before the trial began where Morfitt was described as a “customer distributor” and to some documents produced in relation to confiscation proceedings. The court held that such matters were neither here nor there. What mattered was the evidence called at trial and the judge’s analysis of it. The judge gave cogent reasons for concluding that Morfitt’s role was a leading one.
Colin McCaffrey also applied for permission to appeal against sentence. In sentencing him to 22 years’ imprisonment the judge concluded that he, together with his brother, was the organiser and orchestrator of the Manchester connection. Although there may have been others who played a leading role their identities remained unknown. The judge reached the sure conclusion that the McCaffreys played a leading part in the formulation and execution of the conspiracy. In view of the quantity and purity of the drugs seized, the judge stated that McCaffrey was close to the original source of supply of drugs and was responsible, together with his brother, for directing and organising the activities of a significant number of others in the chain of supply. Having regard to the quantity of the drugs involved and their valuation, there was a clear expectation of very substantial financial gain. The harm under the drugs guidelines was in category 1. The starting point being based on 5 kilograms of Class A drugs was substantially exceeded. In referring to the guideline at step 1, the judge concluded that this conspiracy to supply Class A drugs was on the most serious and commercial scale which required sentences of 20 years and above. Given the leading role played by McCaffrey, the judge moved outside the guideline range of up to 16 years and imposed a sentence of 22 years’ imprisonment. McCaffrey’s counsel submitted that there was evidence that he was the right‑hand man of his brother but he was not at his level. The Court of Appeal did not accept those submissions. The judge’s reasons for arriving at his conclusions were cogent and the court did not accept that he ascribed or even arguably ascribed McCaffrey with the incorrect role, whether by reference to his brother or otherwise.
In short, the Court of Appeal refused permission to appeal against conviction by Morfitt and McCaffrey and against sentence by Livesey, Morfitt and McCaffrey, finding no arguable merit in any of the renewed applications.
Livesey, Morfitt & McCaffrey were convicted after trial and the latter two sentenced to 18 years’ imprisonment and 22 years’ imprisonment respectively. Livesey was convicted after a separate trial, and also pleaded guilty to a further similar offence, he was sentenced to a total of 13 years and 6 months’ imprisonment.
Morfitt and McCaffrey sought leave to appeal their convictions. The first ground was that evidence of previous convictions of non-defendants was wrongly admitted. These were names of people within an address book belonging to a co-accused who pleaded guilty. Morfitt also submitted that the judge failed to adequately present his defence during the summing-up.
The prosecution asserted that the address book was, in essence, a business directory. The list of 73 people was predominantly male and included next of kin details and inmate reference numbers, 40 on the list had drug related convictions including supply, 26 had convictions relating to supply of class A drugs, 38 had convictions for serious offences and 21 had convictions for possession of weapons. The prosecution argued that the convictions were highly relevant having regard to the nature of the conspiracy, that is the organised drug distribution at a very high level.
McCaffrey argued it was a disguised attempt to pursue a defendant’s bad character application, that should have been made under s101 and it would not have succeeded. It was also submitted the book was not relevant as it was simply the social contacts of a co-accused.
The application for leave to appeal conviction was refused. The judge analysed the prosecution case and set out the competing arguments with care, the fact that such a large number of the contacts had convictions for drug dealing and associated offences was a factor in rebutting the suggestion it was simply a social contact book. The Judge was entitled to find a jury could conclude the book was a resource to be utilised in pursuance of the criminal conspiracy. The summing-up was also considered, “a summing-up is a summary. It is not supposed to deal with every piece of evidence”.
No arguable merit was found in the renewed applications for permission to appeal against the sentences and permission was refused.