England and Wales Court of Appeal (Criminal Division) Decisions

SLADE, R v. [2000] EWCA Crim 82 (20th December, 2000)

Case No: 1999/00567/Z2

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT

MAIDSTONE (HER HONOUR JUDGE HAMILTON)

Royal Courts of Justice

Strand, London, WC2A 2LL

Wednesday 20^th December 2000

Potter LJ:

INTRODUCTION

1. On 18th December 1998 in the Crown Court at Maidstone before Her Honour Judge Hamilton and a jury, the applicant was convicted as follows on the second of two indictments which he faced: Possession of a Class A Drug with Intent to Supply - MDMA (Count 1); Possession of a Class B Drug with Intent to Supply - Cannabis (Counts 2 and 3) and Amphetamine (Count 4); Possession of a Class A Drug - Cocaine (Count 5); Supplying a Class A Drug - Cocaine (Count 6); Supplying a Class B Drug - Cannabis (Counts 7 and 8) and Amphetamine (Count 9). On the same date, he pleaded guilty on the first Indictment before the court, to Using a False Instrument (Count 1) and Having a False Instrument (Count 2). On 29th January 1999 he was sentenced to a term of four years imprisonment on Count 1 on the first indictment and to lesser concurrent sentences on the remainder of the Counts. On the second Indictment he was sentenced to one year imprisonment concurrent upon each of the Counts, but consecutive to the sentences for the drugs offences. Total sentence: 5 years imprisonment.

2. On 5th July 1999 a Drug Trafficking Confiscation Order was made in the sum of £1855, with nine months to pay and 18 month's imprisonment in default of payment.

3. The appellant appeals against conviction by leave of the full court after refusal by the single judge, his application for leave to appeal against sentence being referred to the court hearing the appeal.

THE FACTS

4. On 22nd May 1998 officers executed a warrant to search the applicant's home at 355 Queen's Road, Maidstone and found a quantity of drugs concealed in various parts of the premises. The applicant was present during the search, having that same day returned from holiday. Over 2kg of Cannabis Resin were found in the kitchen concealed in carrier bags in a cupboard (Count 2). Also in the kitchen, 331 gms of herbal Cannabis were found in two carrier bags (Count 3). In the freezer the officers found a bag of white powder which was stated on analysis to contain almost a kilogram of Amphetamine Sulphate at 50% purity. In a holdall in the roof-space of the house 118 grams of Amphetamine at 4% purity was found (Count 4). The attic of the house had been converted to an office in which eleven tablets of Ecstasy were found in a briefcase (Count 1). A small quantity of Cocaine was also found in the same briefcase (Count 5), together with a supply of small plastic bags. Three sets of scales were found in the kitchen, two of which were contaminated variously with Cocaine, Amphetamine, Cannabis and Cannabis Resin (Counts 6-9). £4,200 cash was recovered from the house.

5. The prosecution case was that the appellant was involved in the supply of drugs. The high purity of the larger quantity of Amphetamine was said to be strong evidence that the applicant `cut' it before supplying it. The contamination of the scales formed the basis of the counts concerning the supply of drugs, alleged to have taken place before the applicant went off on holiday. They also relied on the finding of the applicant's fingerprints, on a plastic glove within one of the carrier bags.

6. Following his arrest, the applicant was interviewed. He said that he ran a business called Brooks and that, while he had been away, it had been left in the hands of two employees, Michael Taylor and James Kelly who had keys to the premises. He said that he did not suspect Taylor but suggested that Kelly may have been responsible for the presence of the drugs. However, his defence at trial was that the drugs and the plastic glove had been planted by the officers. He alleged that the motive was previous brushes which he had had in the past with DC Heard, the officer in charge of the search and who supervised it. The appellant stated that Heard disliked him and was determined to secure his conviction for drugs offences. The background of his relationship with DC Heard included a complaint made by him against that officer in 1993 and, as the appellant stated, a refusal by him to become an informant to DC Heard when pressed to do so in 1995.

7. The case against the appellant was a very strong one, and the difficulties in the defence were very considerable, not least because a number of police officers had been involved in the search and the drugs were said to have been found by various different officers in different places over the period of the extended search which was conducted. It is not necessary to go into the details of the evidence for the purposes of this appeal, save to say that it involved examining the events of the search in some detail. It will suffice to refer to the evidence of the protagonists, that is to say the appellant and DC Heard.

8. The latter said in evidence that as a member of the tactical search team watching the appellant's premises at about 7.30a.m. in the morning, he was there when the appellant returned from holiday at about that time. After two other officers approached the appellant, they were invited in and proceeded to carry out the search. DC Heard said he was with D.S. Henshaw throughout the period. He went into the living room and spoke to the applicant who said he had been away on holiday. DC Heard asked if anyone else had access to the property and the appellant told him that Taylor and Kelly had. The appellant provided addresses for them [which he admitted at trial were false addresses]. DC Heard said he was called into the kitchen after five or ten minutes and shown drugs found by the dog which was with the other officer. He asked the applicant about cash found on the work-top and the applicant showed him some more, namely some £3,500 in a bedroom drawer.

9. DC Heard said he had been involved with a surveillance operation relating to the applicant since July 1997 until it was suspended in February 1998. He accepted he had previously encountered the applicant in 1993 and that a complaint had been made by the applicant and his father against him and other officers, which was found to be unsubstantiated. He said he had had no other dealings with the applicant until the search. He agreed that he had seen the appellant in a country club in about 1995, but denied that he had asked him to become an informer. He said he certainly bore no grudge against the applicant. He said the search had been triggered by continuous information from police sources. He said there was no question of the drugs being planted and it would be funny if it were not so serious. He stated that the street value of the drugs found was some £133,000. When asked in cross-examination whether anyone in the force had been upset when surveillance of the applicant's property was stopped, he said a couple of people might have been upset.

10. So far as the allegation that the glove with the fingerprint was planted was concerned, it is pertinent to note that the forensic scientist Mr Cain, who took charge of the exhibits taken from the scene, said that he found the glove when he opened a sealed exhibit bag in June, some weeks after the search. It was a curious feature that it had not been listed and that none of the search team who gave evidence admitted to finding it or seeing it at any time before Mr Cain had found it in the sealed exhibit bag. Apart from that no significant admissions were made by any other member of the team who gave evidence, each giving an account of his part in the operation and of any drugs which he said he had found.

11. When the appellant gave evidence, he gave details of his original contact with DC Heard and the complaint against him which the appellant and his father had made. He spoke of the officer approaching him in 1995 to become an informer, but that he had refused. He said that he had returned from holiday and had not even entered the house when the police arrived. He had the search warrant explained to him, and soon afterwards, he was asked to go to the kitchen and shown the bag of drugs said to have been discovered by the dog. He said he was amazed because they were not there when he went away. His concern for his father had caused him to lie about Taylor and Kelly having been in his property. He said he was suspicious about the involvement of DC Heard and he did not want his father to be arrested because of the incident in 1993 when his father's house had been searched in connection with an allegation of theft. He accepted that he had not made his allegation of `plant' at the time, but only later in his defence statement. He was not a drug dealer and all the drugs had been planted. The glove was from a kit to die his hair and that too must have been removed by the police without his knowledge and in that sense also planted. He says he would never have kept drugs where they were found as, if he were dealing in them, he would have made a better job of hiding them.

THE GROUNDS OF APPEAL

12. The appeal against conviction is based upon three grounds. For convenience, we shall deal with them in reverse order.

13. Ground 3 relates to Counts 6-9 which alleged supply of Cocaine, Cannabis and Amphetamine. There was no direct evidence of supply. The case was simply put upon the basis that traces of those drugs had been found upon the scales which were in turn tools of a drug-dealer's trade. There were three sets of scales found. One was contaminated with traces of Cocaine and the other two bore traces of Cannabis Resin, Herbal Cannabis and Amphetamine. The Crown's case was that they were traces of the same drugs as had been found in greater quantities in the house and were thus evidence of previous supply by the applicant of those drugs. The jury should infer that the applicant had used the scales in order to weigh the drugs before supplying them. That seems to us to have been a proper basis on which to put the matter before the jury, bearing in mind the nature of the defendant's defence. If the jury rejected his evidence that the house had been occupied or visited while he was away by two men for whom he gave false addresses, and if they rejected the evidence of `plant', that left the defendant as the person in charge of the premises over the preceding months and no reason in logic or common sense why the jury should not return the verdict which they did.

14. Ground 2 relates to the failure of the Judge to give the jury an appropriate direction as to how they should approach evidence given by DC Heard that a number of police sources were saying that the defendant was involved in drug dealing. The particular passage in the summing up reads as follows:-

"The Search Warrant was obtained on 13th May and DC Heard told you he obtained it. He said he would have discussed the matter with DI Gladstone, the superior, the man over the wall, before that time and DI Gladstone agreed that the Warrant would not have been obtained unless he had given the go-ahead. He told you as well that the search was triggered by continuous information from a number of police sources saying the defendant was involved in drug dealing."

15. That passage was contained in the section of the summing-up dealing with the evidence of DC Heard. It was not elaborated or qualified; nor were the jury given any direction in respect of it. The point is taken for the appellant that there is a real risk that the jury may have thought that the evidence of DC Heard constituted evidence from a number of police sources that the defendant was a drug dealer. It is conceded for the Crown that, in those circumstances, the Judge should specifically have instructed the jury that the evidence of DC Heard in that respect could not be evidence that the defendant was or had been dealing in drugs. However, the Crown argues that such failure should be considered in the full circumstances of the case. First, the evidence of DC Heard was given in response to a question from defence Counsel, suggesting that the reason why the search warrant had been obtained was for reasons of the grudge held by DC Heard against the defendant. Not surprisingly, therefore, DC Heard defended himself with the answer complained of. Further, contends the Crown, the defence case was based on an all-out attack on DC Heard and his credibility in a situation where either DC Heard was guilty of wholesale lies, including that particular lie as to the reason for the raid, or the defendant was lying, in which event the evidence against him was of the clearest possible kind from a number of sources. That point has an attractive simplicity about it, and were Ground 2 the sole ground of substance in the appeal, we would be disinclined to regard the conviction as unsafe. However, it has to be viewed in the context of the major cause for complaint in this case, namely that advanced under Ground 1.

16. Under Ground 1 it is complained that, in summing up the case to the jury, the Judge frequently made remarks which could not be described as reminding the jury of the evidence or regarded as any kind of even-handed comment for their assistance. It is said that a substantial number of passages in an otherwise commendably short summing up, read more like arguments advanced for the prosecution (though without such attribution) in a manner inconsistent with the duty of the Judge to give the appellant's case, however unattractive, the balanced treatment and consideration which is the due of every criminal defence: see R -v- Marr (1990) 90 Cr App R 154.

17. Mr Codner complains that, rather than adopting a detached and comment-free approach to her recitation of the evidence on each side, the Judge lost no opportunity when reciting evidence relevant to the possibility that the drugs and paraphernalia had been planted, to belittle and criticise the case for the appellant in this respect, rather than leaving the jury to form their own view.

18. Thus, having referred briefly to the fact that:

"The defence case throughout is that he knows nothing about them, they are planted, he is not a drugs dealer."

and having thereafter directed the jury on the significance of any lies the defendant told the police, the Judge proceeded at regular intervals to remind the jury of the defendant's initial lie identifying Taylor as someone who had had access to the property while the appellant was away. Thus, within a few pages of the transcript that matter was repeated on three separate occasions, as relevant to points raised "for the reasons I gave you when I gave you the direction on lies."

Equally, on each occasion the judge mentioned the defendant's explanation that he was suspicious of DC Heard and wished to protect his father, that too was linked with a reference to the judge's earlier direction on lies.

19. On the other hand, when reciting DC Heard's evidence, beginning with his contacts with the defendant in the past, the Judge said:-

"That, on DC Heard's evidence, was the sum total of his involvement in sightings of this defendant and he told you he certainly did not bear a grudge because of the 1993 matter. You may think, having heard all the witnesses, that if anyone is bearing this in mind and carrying it on, it is the defendant and his father. DC Heard certainly said he bore no grudge..."

She then went on to inform the jury that, according to DC Heard the search was triggered by continuous information from police sources to say that the defendant was involved in drug dealing. Mr Griffith for the Crown, rightly in our view, makes the comment that, such a reference would have been better omitted altogether, rather than commented on. However, given that the comment was made, it should have received an appropriate direction (see above under Ground 2).

20. Proceeding to the question of the alleged planting of the glove, which was perhaps one of the few matters upon which the defence had made some inroads into the prosecution case, the Judge said:

"So you have the evidence about it and you have the defendant's suggestion that it must have been planted. Well, there are a considerable number of assumptions that have to be made if that is true and it was planted. Firstly, an officer, who has never been to these premises before, has to know there is going to be a glove in the bathroom in a vanity unit or he has to fish around and find it and he has to know, or hope, there is going to be a fingerprint of the defendant on the plastic glove. He has then, within the limit of the time he has, somehow got to smuggle it in the bag in the kitchen under the nose of certainly PC Coomber and get in the plastic bags, hide them round the corner in the kitchen unit. Also on the defendant's case, he has got to smuggle the drugs in the cupboard in the unit with the glove in as well. He has got to do all this, having arrived at 7.30, had discussions with the defendant and done all that between that and the find at 7.45 when the dog comes.

Also, of course, that is assuming that the bulky bags that you will be able to see of Resin and Cannabis were able to be concealed on DC Heard, if it is DC Heard who the finger is being pointed at, it has to be concealed on him. He has been with Henshaw all morning and is walking up to the flat with him. It is a matter for you to consider whether these matters were concealed on an officer ready to plant at 7.45 with a planted transparent glove inside....

So, you have to ask yourselves, in addition to the glove, there was a policeman, or more than one policeman, going to get that amount of value and bulk of drugs? It could not just be one officer, as the defendant himself has said. It had to be more than one. So what reason would any other officers have here of risking their careers by being involved in drug planting for someone, who in the past, that is DC Heard, has had only the most minor contact with this defendant? That is even if you accept all the defendant's evidence about meetings in the club and the allegation that DC Heard had asked him to be an informer."

21. The Judge then turned to the role of DS Henshaw:

"He told you he had never had anything to do with this defendant before and would not have recognised him. Also he said he had only worked with DC Heard for one day. Do you think that it is credible that this officer, given what you know about him giving his evidence, would be involved in this serious drug plant, given his lack of involvement with the defendant and his very minor contact with DC Heard? It is a matter for you, but he was the officer sitting with Heard in the car, came in with him, closest to him on what we are told are the important timings of that morning....."

Then a little later:

"He was also asked about drug plants and he denied that he was anything to do with it or that that had been done. Again, members of the jury, you heard him, you saw him, you will make of him and his veracity or otherwise what you will, but again this little amount tucked away in a filing cabinet, again, is that a suggestion - because it must have been planted if the defendant is right about all these things - were they going to bother to plant so far tucked away in a filing cabinet."

22. Following that passage, remarks of a similar flavour were made about another officer, DC Biggadike.

23. When the Judge turned to the question of the glove, all she said was this:

"So, when all the matters were seized, they went off with the scales that were in the property, they went off for analysis by Mr Cain, who, as you know, examined the various plastic bags found as well and he was the man who found the plastic glove in the same sealed bag as the blue carrier bag, but separate from it. That blue bag was the bag containing the first two carrier bags of Cannabis found on the premises.

I am not going to suggest to you how that glove got there, to disappoint defence counsel. You have all the evidence. That is what I give you, it is a matter for you to decide."

It is not apparent precisely what was meant by the Judge's last remark. However, it has an unfortunate ring.

24. When the Judge came to deal with the defendant's interview and his reason for naming Taylor and Kelly as having had access to the property, she said of the defendant:

"His main reason, he said, was to make sure that they did not arrest his father. Well, you have seen his father and he has given evidence. You may think that he is more than able to deal with the police on the one occasion he had dealings with them before 22nd May, back in 1993. There has never been any suggestion that the father had been involved in drugs or the police had any reason to suspect the father".

25. When it came to dealing with the evidence of the defendant, again, the Judge did not simply recite his evidence, but at each stage when it involved any suggestion against the police, proceeded to repeat in somewhat different form, points that she had already made in their favour when reciting their evidence. By way of example:

"He also told you that DC Heard said to him: "I am going to get you for importation and dealing abroad. I am going to get you". Well, we know from DC Heard that in the lounge he was in the company of at least one other of the PC's and in the kitchen he was also in the company of other officers. Again, there is no evidence from any of the other officers that that was said and I do not recall any of them being asked if they heard that, but the defendant said that that was what was said to him".

26. The Jury were sent out at the end of the day before they retired with only a few remarks remaining. When they had retired, defence counsel complained at the manner and tone of the summing up. Upon the return of the jury the following day, the Judge made a brief summary of the nub of the case on either side in short and neutral terms. The jury then retired.

27. Mr Griffiths for the Crown has sought to defend the tone and terms of the Judge's summing up on the basis that a Judge is entitled to comment on the evidence, and in some cases strongly, provided he or she does no usurp the jury's function by making the summing up unbalanced. He is of course correct. However, it is in respect of that proviso that our concerns arise in this case. Mr Griffiths referred us to the dicta of Lord Lane C.J. in R v Malcherek & Steel (1981) (73) Cr App R 173 at 188 in which the Judge referred to an allegation made by the defendant, if true, as amounting to `a most shocking and cynical conspiracy against [the defendant], a dreadful thing' the allegation being one of extracting a false confession from the defendant. Lord Lane observed:-

"....it seems to us that the judge was at the very least entitled to point out to the jury, in clear terms without fudging the issue, the suggestion which was being made against the police; namely that it was a cold, cynical conspiracy to convict an innocent man of murder.....he certainly cannot be criticised for telling the jury in plain terms, without blurring the edges, what it was precisely that the defence was suggesting the police had done."

28. Mr Griffiths suggests that in this case the judge was doing no more than point out the ramifications in evidential terms of the appellant's assertions of `plant' in this case. That is no doubt true. However, two points arise in relation to the observations of Lord Lane C.J. relied on. First, there is no doubt that, in recent years, the deployment of `robust' comment by judges has been tempered by the teachings of the Judicial Studies Board; as a result the `norms' of judicial comment have undergone a degree of restraint. Similarly, it is recognised that the deployment of phrases such as `you may think' or `it is a matter for you' may not save a summing up from criticism if its overall effect is one-sided. Second, in Malcherek, the comment of the judge appears to have been one which was realistic, short and to the point, in a case where the judge thought it right to spell out the implications of the defence when he was highlighting the rival cases. Malcherek does not appear to have been a case where, as seems to have happened here, the appellant did not at any stage have his case dispassionately set out free from adverse comment. The Crown case was, as we have said, a strong one. The defence scarcely needed the detailed critical comment it received. However, at the end of the day, we feel forced to the conclusion that a fair balance was not maintained between prosecution and defence and that, in all the circumstances, the appellant did not receive a fair trial as a result.

29. With some reluctance, having regard to the strength of the case against the appellant, we allow the appeal. However, in the light of the period for which the appellant has already been in custody, we wish to hear the further submissions of counsel on whether or not a retrial should be ordered.

LORD JUSTICE POTTER: This appeal is allowed for the reasons set out in the judgment now handed down and available in the body of the court for any member of the press or public who wishes to read it.

We thought that we ought to hear further submissions of counsel on the question of whether or not a retrial should be ordered. If I can explain the thinking. While we appreciate that much of his period has been served, for reasons indicated we think, subject only to question of whether the jury believed it or not, the case against him was extremely strong. It is, of course, a case where, if he were convicted, he would stand convicted as a substantial drug dealer and be subject to confiscation provisions and the like. In the light of those considerations it may be that the prosecution would, as it were, wish there to be a retrial, while one can well understand that the appellant would not.

MR COY: Your Lordship has set out the issues very succinctly and very accurately. On the one hand, I concede, on the appellant's behalf, that there must be a public interest in those, against whom there is strong evidence, having convictions where a court has convicted them. I know that my learned friend, Mr Prosser, will be urging that upon your Lordships. However, I say this man has now been in custody since 22nd May 1998. He has served a substantial prison sentence. One cannot realistically see this trial, if it is ordered to proceed, coming on before the summer.

LORD JUSTICE POTTER: Before the summer, why is that?

MR COY: My Lord, I gather from counsel who represented Mr John Slade in the original trial that this will be argued ab initio, that new defences will be raised and so the whole thing will be, as it were, starting from scratch. That will take some time to prepare. In the light of that --

LORD JUSTICE POTTER: Are you able to be more specific? Is there an abuse of process point or something of that sort?

MR COY: I am afraid, my Lord, I am not privy to the arguments --

LORD JUSTICE POTTER: The defence of plant was raised at an extremely late day in the proceedings. If it is one which goes to merits that mere fact is not one which would encourage one to say that there should not be a retrial.

MR COY: I am in the difficult position of not being privy to the thinking of trial counsel, so I am afraid I cannot help your Lordship on that point. But I do understand from telephone conversations that matters will be argued ab initio. It is not simply a rehearing of the police officers planting material argument. There will be other arguments.

It will take some time to get this matter ready for trial, if indeed a retrial is ordered. I say it is not in the interests of justice for this man to spend any more time in custody.

I understand from counsel who conducted the trial that the appellant will be available for parole some time early in the new year. In the light of that, he has served the bulk of his sentence. I ask your Lordships to bear that very much in mind, as I am confident that your Lordships will.

LORD JUSTICE POTTER: I think it was early March which was the time when he would have been eligible, assuming good conduct.

MR COY: It may well be. I am not sure that I can assist your Lordships any further on that point. Simply I urge upon you the time that this man has served already.

MR PROSSER: My Lords, the Crown would seek a retrial in this matter. May I put forward three grounds in which we say it is in the public interest that there should be a retrial.

The first clearly goes to the concerns of the court, the question of length of sentence in this matter, much of it already having been served. It is right to say that the single judge when reviewing this matter prior to the appeal expressed in writing that the total sentence of five years was very far from excessive. There are four years on these matters, but your Lordship will have seen, indeed it is set out in the judgment, that these are serious supply allegations in relation to class A drugs. It is our submission that it is not inevitable that if there were to be a further conviction in the matter that any further sentence would necessarily be less or even just the same in this matter. It is a matter which the trial judge would have to have in mind.

The second ground for urging this is linked. It is the serious nature of the offence and the ramifications that follow from it. Your Lordship has already mentioned about DTA. The position is this. Having faced charges on strong evidence, say the Crown, of supplying two different types of class A drug, seen in compliance with two different types of class B drug in the course of the search, it follows that this is substantial drugs dealing, substantial involvement with drugs.

LORD JUSTICE POTTER: Was £133,000 said to be value of the drugs found?

MR PROSSER: Yes. And the benefit figure on the DTA hearing was found to be £353,974. There were available assets for confiscation of £1,855. It is axiomatic, the appeal having been allowed, that if there is no retrial then what are presumed by the rules to be the proceeds of drug trafficking would remain in the appellant's hands. The Crown say there is a public interest in that not happening. So for that second reason we would seek a retrial on the matter.

My third ground is this. It really falls under what is now section 110 of the Powers of Criminal Courts (Sentencing) Act. It refers to three convictions for class A supply. This would be the first on the record, but of course the appeal having been allowed and if there is no retrial and non further conviction, if there were to be any further involvement in the supply of class A drugs by the appellant then, of course, the mounting tally, if I can call it that, in relation to further sentencing would be one less than it might otherwise need to be, the Crown say, in the face of strong evidence.

So for those three grounds we ask this court to say that it is the public interest that there should be a retrial.

LORD JUSTICE POTTER: Yes. Anything to say in reply?

MR COY: My Lord, simply to say this. Mr Prosser argues the point attractively but to posit that there may be future convictions of a similar nature and to argue that is a basis on which a retrial should be ordered is, in my submission --

LORD JUSTICE POTTER: It would be stronger if it were the third time rather than the first.

MR COY: Quite.

LORD JUSTICE POTTER: We will rise for a minute.

(Short adjournment)

LORD JUSTICE POTTER: Well, having considered the matter, we do think it appropriate to order a retrial. So the order of the court is that we allow the appeal and quash the conviction. We direct that a fresh indictment be preferred and that the appellant be rearraigned on the fresh indictment within two months. Are there any other directions which are sought?

MR COY: My Lord, I am instructed in this eventuality that I should apply for bail on behalf of the appellant. However, he has not been produced today to the court. There is no one in the public gallery. I understand that a family member would have stood surety. In the absence of that family member, I am in some difficulties. Your Lordship has ordered that he be rearraigned in two months perhaps that would be the more appropriate forum for the application.

LORD JUSTICE POTTER: I think so and it will still be within the period he has to serve. Very well, so there will be no bail grant. Any application in relation to legal aid?

MR COY: I have no instructions to apply, my Lord, so I make no application.