tarry

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Neutral Citation Number: [2017] EWCA Crim 97
No: 201601672/B5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Friday, 10 February 2017
B e f o r e:
LORD JUSTICE HAMBLEN
MR JUSTICE WILLIAM DAVIS
SIR DAVID MADDISON
R E G I N A
v
LEE TARRY
Computer Aided Transcript of the Stenograph Notes of

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Mr F Hertzog appeared on behalf of the Appellant
Mr D Potter appeared on behalf of the Crown
J U D G M E N T
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1. MR JUSTICE WILLIAM DAVIS: On 9th March 2016, in the Crown Court at Liverpool, Lee Tarry pleaded
guilty to a single count of conspiracy to supply a controlled drug of Class A. The following day he was
sentenced to 5 years' imprisonment. Notwithstanding his plea of guilty he applied for leave to appeal against
his conviction. That application was referred to the Full Court by the Registrar and we grant leave.
2. The facts of the case may be dealt with in very short order. In February 2014 the appellant left Skelmersdale,
in West Lancashire, driving a private hire car. In the back of the car there was a flat‐ packed bed.
Concealed within the bed were just under 3 kilos of high purity cocaine. The appellant was delivering the
drugs on behalf of a group of criminals in Liverpool, the intended destination being Scotland. There was evidence
linking the appellant with individuals within the organised crime group and with an address in Scotland.
3. The appellant was only arrested after he had entered Scotland. In the view of the intended location of
the supply of drugs he was charged with a conspiracy to supply the drugs outside England and Wales, that is
contrary to section 1A of the Criminal Law Act 1977. Because of the extra territorial nature of the conspiracy
the consent of the Attorney General at that time was required to institute the proceedings, by reference to
section 72(1)(a) of the Coroner and Justice Act 2009.
4. The appellant was sent, along with 17 other defendants, for trial to the Crown Court at Liverpool. Given
the nature of the charge that sending was without any consideration of allocation, pursuant to section 51 of
the Crime and Disorder Act 1988. The appellant was sent on 28th May 2015. Some of the other defendants
were sent on the same day, others on different days. Critically the appellant was sent for trial before the
consent of the Attorney General was obtained, that only occurring on 2nd June 2015.
5. The appellant appeared at the Crown Court on 16th October 2015. On arraignment he pleaded guilty,
unsurprisingly given the evidence against him. At that stage the consequence of the Attorney General's consent
not having been given until four days after the appellant had been sent for trial was not appreciated.

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6. In the following months the cases of various defendants were listed for trial. The appellant was not present
because he was due to be sentenced at the conclusion of any trial. By this point the prosecution had
recognised the chronology thus far created a problem in relation to the count to which the appellant had
pleaded guilty. At a hearing in November 2015 prosecuting counsel told the judge then sitting that the Attorney's
consent had been given after a stage when it ought to have been given. The judge asked the prosecution
what they were going to do about it. The prosecution asked the Crown Court judge to sit as a District
Judge and send the relevant charge, pursuant to section 51, by that time of course the consent having been
given. It was said that there be no prejudice to any defendant. Those defendants who were present agreed
with that proposition. One of the defendants who was present at court did indeed plead guilty. The other
defendants who were not present of course were not arraigned.
7. The prosecution on that occasion offered the suggestion that on the day of sentence or some other day
when the defendant was present, at that point the relevant defendant could be arraigned.
8. The trial that was due to begin in the middle of November continued and concluded in the middle of December.
Come the 9th March 2016 various defendants were listed for sentence, including those defendants
who pleaded guilty at one point or another of the proceedings. That included Lee Tarry.
9. Mr Tarry was arraigned at some point relatively early at the sentence hearing, the hearing itself lasting
two days. The transcript does not indicate how that came to be done. But Mr Tarry pleaded guilty, as we
have already indicated. Counsel who appeared for him on 9th March had not been present at any earlier
hearing. The re‐ arraignment, as it appeared to counsel, was due to some technical issue that required him
to be arraigned on a new indictment. Counsel plainly was not aware of the true position. Nothing more was
done or said on 9th March in relation to any resending of the appellant.
10. The conviction of Lee Tarry initially was challenged on two bases. First, it was said that the process
that was engaged in, namely resending of the case, could not cure the lack of the Attorney General's consent.
Secondly, it was said that the resending, if that were a viable option, could not be done in the absence
of Lee Tarry. We need say nothing more about the first basis upon which the appeal was mounted. It does
not have any traction and does not require our further consideration.
11. What does require our consideration is what happened in November and whether it cured the failure to
obtain the Attorney's consent prior to the original sending. The judge undoubtedly was entitled to use his
power under section 66 of the Courts Act 2003 to sit as a District Judge but he was not entitled to send a
defendant for trial without the defendant being present. Had the defendant been present any failures by the
judge to engage in specific procedures required by the Criminal Procedures Rules or the Criminal Practice
Direction would not have nullified the process but the absence of the defendant was critical. The Magistrates'
Court has no power to send a defendant for trial if he is not present. That was the conclusion of the
Divisional Court in Janner v CPS [2015] EWHC 2578 (Admin) and that conclusion is undoubtedly right, when
considering the terms of both section 51 read in conjunction with Part 9(2) of the Criminal Procedure Rules.
12. It follows therefore that the sending of Mr Tarry in November 2015 was a nullity. There was no power
to send him for trial in his absence. Since there was no power to send him for trial in his absence the indictment
to which he then pleaded guilty was a nullity and it follows therefore that his conviction must be
quashed.
13. However, that is not the end of it because we must reconstitute ourselves (Hamblen LJ and myself) as
judges of the Administrative Court to quash the original decision of the magistrates to send the appellant for
trial and we do so.

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14. This court then (at least one member of it) must sit as a District Judge, pursuant to section 66 of the
Courts Act in order to send Mr Tarry, who is now present by video link, for trial.
15. Mr Potter, do you have the charge on which you wish me to send him?
16. MR POTTER: I do. I have sent it electronically, I am afraid I have not printed off a copy. It is a charge
of conspiracy to supply a controlled drug of Class A outside of England and Wales, and contrary to section
1A of the Criminal Law Act 1977. The particulars are that:
"Lee Tarry between the first day of February 2014 and 20th May 2015 conspired with Paul Douglas Berry
and Stephen Sidney Reeves and/or with another or others to supply cocaine, a controlled drug of Class A, to
other persons unknown outside of England and Wales".
That is the charge I invite you to send pursuant to section 51 of the Crime and Disorder Act 1988.
17. MR JUSTICE WILLIAM DAVIS: Mr Tarry, can you hear us?
18. THE APPELLANT: Yes.
19. MR JUSTICE WILLIAM DAVIS: Did you hear what counsel has just read out?
20. THE APPELLANT: Yes.
21. MR JUSTICE WILLIAM DAVIS: Do you understand the allegation?
22. THE APPELLANT: I understand it, yeah.
23. MR JUSTICE WILLIAM DAVIS: You understand that I now, sitting as a District Judge, must send that
case to the Crown Court.
24. THE APPELLANT: Right. Okay.
25. MR JUSTICE WILLIAM DAVIS: I must ask you, on the assumption it is sent to the Crown Court, are
you able to indicate whether you would plead guilty or not guilty?
26. THE APPELLANT: The guilty plea will still stand.
27. MR JUSTICE WILLIAM DAVIS: Thank you very much. Therefore I shall sit as a District Judge and
send that charge to the Crown Court. I then sit as a judge of the Crown Court. I suspect you do not have
therefore the Bill of Indictment.
28. MR POTTER: I have just read out an electronic version of an indictment which I have drafted and, if I
may be permitted to show the screen to the learned Associate.
29. MR JUSTICE WILLIAM DAVIS: It does not seem to me it is necessary for me to require the Associate
to engage in that exercise.

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30. Mr Tarry, you heard the indictment that was read out.
31. THE APPELLANT: Yes.
32. MR JUSTICE WILLIAM DAVIS: Do you want me or anybody else to read it out again?
33. THE APPELLANT: I don't think so, it's okay.
34. MR JUSTICE WILLIAM DAVIS: Very well. In short form, conspiracy to supply cocaine in Scotland.
Do you plead guilty or not guilty to that count?
35. THE APPELLANT: Guilty.
36. MR JUSTICE WILLIAM DAVIS: All right. Thank you very much.
37. The prosecution must very briefly tell me, as a judge of the Crown Court what the case is about, although
obviously I know, but it is necessary to do that for formalities sake ‐ yes?
38. MR POTTER: My Lord, on 14th February 2014 police officers from Scotland, conducting a routine
patrol along the A74M, saw a Ford Galaxy motor vehicle bearing a private hire plate travelling north towards
Glasgow. The officers stopped the vehicle for a routine check. The officers spoke to the driver, who identified
himself as this defendant. Mr Tarry appeared extremely nervous and explained that he was delivering a
bed from Skelmersdale to Glasgow to an individual whom he did not know. A search of the boot revealed a
number of boxes marked "Tetras Bed". Mr Tarry was then detained for a drugs search. A more thorough
search of the vehicle was conducted which resulted in recovery of three packages, wrapped in brown tape
from within one of the bed boxes.
39. He was arrested and taken to a police station and two mobile telephones were recovered from Mr Tarry,
one which had recently been activated.
40. The drugs were discovered to be consisting of three packages, containing a total each of just under 1
kilo, making a total of just under 3 kilograms of high purity cocaine. In the opinion of drugs expert officer
from Scotland that if sold at street level purity would amount to about £700,000 worth of cocaine.
41. Examination of the telephones revealed that this defendant had been in contact with two members of
an organised crime group, one based in Preston called Berry, the other based in Skelmersdale who was a
closer associate of this defendant called Stephen Reeves.
42. The defendant initially denied knowing that the boxes contained cocaine but subsequently, as your
Lordship knows, has now pleaded guilty to being a part of the conspiracy to supply those drugs into Scotland.
43. He is therefore to be sentenced on the basis that he was a trusted courier of Class A drugs, using his
private hire vehicle as a cover, with the drugs concealed in a packaging of a bed. Therefore, although he
has a lesser role it is still within the furtherance of a conspiracy as a whole. For illustrative purposes only, for
of course the guidelines do not apply to conspiracy offences, for a substantive offence of supply, it is submit-

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ted that this is a category 2 offence, with a starting point of 5 years' custody with a sentence range of
three‐ and‐ a‐ half to 7 years in custody. The defendant has no relevant previous convictions.
44. MR JUSTICE WILLIAM DAVIS: Thank you very much.
45. MR HERTZOG: I can be extremely brief, and pray in aid those same things that were prayed in respect
of Mr Tarry at the initial sentencing hearing that are now quashed proceedings: his guilty plea; his lack
of antecedents and the role in which the Crown placed him and the assistance that he undoubtedly provided
to the police in his second interview which your Lordships will be aware has had an effect on the period of
time he spent in custody and effect on Mr Tarry and his safety and concerns about his safety whilst he has
been in custody.
46. The simple question that I ask your Lordship to turn your Lordship's mind to is whether in the circumstances
the court could reflect the difficulties that Mr Tarry had had in custody, the effect that these proceedings
having had on him. It has been an unsettling time these last months for him, through no fault of his own.
These are not proceedings brought about as a result of Mr Tarry at all, and whether in some small way the
court might mark that in the sentence that the court imposes today. That is the only submission in addition to
the submissions made in the lower court on the last occasion that I can make to your Lordship.
47. MR JUSTICE WILLIAM DAVIS: The judge who sentenced him in March 2016 gave him 25% credit for
his plea. What was his first opportunity to plead in the recognised sense?
48. MR HERTZOG: When he did. I am assisted by my learned friend who said as your Lordship heard;
"When he did".
49. MR JUSTICE WILLIAM DAVIS: On the face of it it was the first appearance, certainly of any consequence.
50. MR HERTZOG: Yes. It would seem so certainly on the papers I have seen. I have to add the caveat I
was not instructed counsel at that point. It seems certainly to me that it was the first opportunity in those
proceedings and of course whether the point has any attraction he has pleaded guilty at the first opportunity
at the new proceedings. Really your Lordship will want to reflect on his conduct prior to this. I can assist by
praying in aid that he entered the plea at an early stage and appeared to do so in the previous proceedings
as well.
51. MR JUSTICE WILLIAM DAVIS: All right. Thank you very much.
S E N T E N C E
52. MR JUSTICE WILLIAM DAVIS: Mr Tarry, I now have to re‐ sentence you. Re‐ sentence you for
your involvement in a conspiracy which involved, in your case, transporting 3 kilograms of high purity cocaine
to Scotland.
53. The judge who previously sentenced you and those who appear before me today say that yours was a
lesser role. I am not sure I necessarily agree with. People who for money engage in the transportation of
significant quantities of controlled drugs seem to me at least to have elements of a significant role.

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54. Whilst it is true that the guideline does not apply directly to offences of conspiracy, this court in R v
Khan & Ors made clear that it is perfectly permissible and indeed right for any sentencing judge to have regard
to those guidelines when sentencing for a conspiracy such as this.
55. The consequence of that is that I am quite satisfied that the judge who first sentenced you was quite
right to identify a starting point somewhere around 7 years. What I do not follow, and nobody has been able
to explain to me today, is why your credit was limited to one‐ quarter. It seems to me it is appropriate you
should have had full credit for your plea.
56. Taking that into account, and the problems that there have been with this case, none of which is of
your making, it seems to me that today, as the matter faces me, the proper sentence is one of
four‐ and‐ a‐ half years' imprisonment. That is the sentence I impose. That sentence will run from today,
because I am sitting today in the Crown Court. You have obviously spent about 11 months or thereabouts in
custody. It has been made perfectly clear by the Prison Service that such time will count towards your sentence.
Then you will be released at the halfway point of whatever the balance is. You will then be on licence
as you know, liable to recall if you offend again or breach the terms of your licence.
57. I pass the sentence in those terms, namely the proper sentence for this offence on the clear understanding
you will be given proper credit for that time spent in custody. If any issues arise, I regret to say you
have to come back to this court, but I am confident that will not arise. All right. Do you understand all of that?
58. MR POTTER: Yes. Thank you.
59. MR JUSTICE WILLIAM DAVIS: You will in due course, I hope sooner rather than later, be returned to
your cell in Haverigg.
60. THE APPELLANT: Thank you.
61. MR JUSTICE WILLIAM DAVIS: Thank you very much.