England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2 Thursday 10th May 2001

1. MR JUSTICE SACHS: On 12th December 1995 the appellant was convicted at Wood Green Crown Court before His Honour Judge Maher and a jury on count 3 of an indictment, that for possession of a class B controlled drug with intent to supply. The drug was herbal cannabis. He was also convicted on count 4, an offence of simple possession of a class B controlled drug, namely cannabis resin. He was sentenced on that day to a total term of 30 months' imprisonment. On 5th January 1996 he submitted an application for leave to appeal against that conviction. He was refused leave on 20th April 1996 by the single judge and the application was not renewed and consequently lapsed. This matter comes before this court on a reference from the Criminal Cases Review Commission under the provisions of section 9 of the Criminal Appeal Act 1995.
2. The facts can be shortly stated. On 11th December 1994 at about 11.25 am the police stopped a red Jetta motorcar in Globe Road, Bow. A man, William Queen, was the driver. The appellant was in the front passenger seat and Frederick Hindmarsh was sitting in the rear. The appellant was seen by the police pushing a carrier bag under his seat with his feet. On examination by the police it turned out to contain 10 bags of herbal cannabis and one clingfilm wrap of cannabis resin. When he was searched a lock knife was found in the appellant's pocket which had a smudge of cannabis on the blade. A mobile phone and charger were found in his pocket and on the rear parcel shelf of the car a black and white holdall was found which contained 13 blocks of cannabis resin and 20 bags of herbal cannabis. The carrier bag in the front footwell contained 277.62 grammes of herbal cannabis and a total of 33.18 grammes of cannabis resin. The holdall from the parcel shelf contained 641.17 grammes of herbal cannabis and 344.95 grammes of cannabis resin. The cannabis was split into 43 separate deals. There was also found a small amount of cannabis, 12.49 grammes, on the dashboard near the driver. This was not referred to at trial.
3. Originally the police charged the appellant, Queen and Hindmarsh with possession with intent to supply in relation to the total amount of cannabis in the car. The Crown Prosecution Service then reviewed the file and preferred new charges against each man which related to the cannabis found closest to that person in the car. The appellant and Hindmarsh were charged with possession with intent to supply. The appellant's charge related to the cannabis in the carrier bag in the footwell and Hindmarsh's charge related to that found in the holdall. They were both committed for trial to the Crown Court.
4. At trial Hindmarsh was acquitted. He had however pleaded guilty to possession of a small amount of cannabis found at his home, that founded count 5 and he was conditionally discharged for 12 months.
5. Queen had been recharged with simple possession of the 12.48 grammes of resin found on the dashboard and had pleaded not guilty at the Magistrates Court. A day was set aside for the trial but the Crown Prosecution Service offered no evidence against him on what they described as "public interest" grounds, as he had no previous convictions. There is in this case no suggestion of bad faith by the prosecution as to this decision, or as to the preferring of the new charges.
6. After the retirement of the jury and in their absence the trial judge made criticisms that Queen did not appear with the appellant and Hindmarsh at the Crown Court for trial. The judge's objections were principally founded on the fact that Queen was the driver and that amounted to prima facie evidence of possession of the contents of the drugs in the vehicle. The judge's criticisms, which we have all read, are set out at 28G to 30G of the transcript, and at 29D the judge said this:

"Three of them were in a car stuffed with drugs. Why should not the three of them answer for it? They may all have had a perfect answer. But if each one had said to the jury, 'driver: I didn't know'; passenger number 1 says: 'I didn't know', and passenger number 3 says: 'I didn't know', that proposition becomes absurd."

7. Those were his views. They are however not in any way determinative of the matter before us.
8. At trial the prosecution evidence came from police officers. P.C. Cooper was in the police car which overtook the vehicle the appellant was travelling in. P.C. Cooper looked at the rear of the car, he noticed that there was nothing on the rear parcel shelf. They stopped the car. It was described as being a scruffy and untidy with all sorts of items inside. The car was behaving oddly and the back was low. When it was searched there were a quantity of tools in the boot. We have indicated already where the various persons were sitting.
9. The police evidence was that when they arrived Hindmarsh glanced in the direction of the bag behind him. P.C. Cooper took the holdall from the car, looked inside, saw the drugs and plastic bags and showed them to Hindmarsh who was still in the car. Hindmarsh said: "I don't know anything about that cannabis". He was taken to the police station and as he was entitled made no statement.
10. P.C. Claxton and P.C. Kershaw said the appellant seemed very nervous. He was sitting in the front passenger seat and when they opened the passenger door he had a carrier bag between his feet and he was pushing it under the seat with his feet as if to hide it. He got out from the car very slowly. He was unsteady on his feet. His eyes were glazed and his reactions slow. They could not smell any alcohol on him. He was asked "Why were you pushing the bag under the seat?" and he replied "It's my bag". The bag was searched, the drugs were found and the appellant simply said "Yeah, so?" A mobile phone, charger and a knife were recovered from him. At interview the appellant answered some questions but refused to answer others. But he said nothing that was inconsistent with his defence at trial.
11. At trial the appellant gave evidence. He said that when he was stopped he was very drunk. He had been on a two day bender. He said Queen had asked him to help out with some emergency plumbing. The appellant said he had done plumbing work for Queen before for two or three weeks. Hindmarsh had last worked with the appellant five or six years earlier and he had last seen him about a year before. It was an off-chance that the appellant and Queen had gone to Hindmarsh's address to see if he wanted to help out with the plumbing. Whilst in the car Queen did speak about plumbing, or he assumed there was a conversation about plumbing. The appellant said that when the police arrived Queen shoved the bag into his lap and said "Run with this". The appellant said he did not see where Queen got the bag from. But he said, following the instruction to run, "No way" and tried to get it away from him. The appellant moved it on to the floor. He did not even have time to think what was in it. In the past Queen had given the appellant cannabis with some money as part payment for work he had done. The appellant said that when the police asked why the appellant was pushing his bag under the seat he said "Well it's my bag" and he said it in a sarcastic manner. He also maintained that he said sarcastically "The rest of the car is mine and everything else in the car". That latter statement was not accepted by the police. He said that the mobile phone was Queen's and Queen had given it to him to answer any calls which might occur during the journey.
12. Hindmarsh gave evidence and said that he had no knowledge of these drugs. The various items of property in the car he had purchased at a car boot sale. He said he had never moved the bag with which he was alleged to be associated, did not know what was in it and did not even know it was there.
13. The Criminal Cases Review Commission reference of this matter is on the single ground set out at 11.35 of the Commission's statement of reasons dated 3rd August 2000 which states:

"...the Commission considers that the decision in relation to the re-charging and the decision to offer no evidence against Mr Queen combined to render the appellant's trial unfair in that the decisions deprived the appellant of the opportunity to present his complete defence."

14. The Commission reviewed various other complaints but did not adopt them in support of this appeal.
15. At 11.26 and 11.27 of their Statement of Reasons they further dilated on the matter referred to this court and made reference to the decision in this court R v Beckford (1996) 1 Cr App R 94.
16. In his skeleton argument Mr Clare for the appellant submitted that in consequence of the decision of the Crown Prosecution Service not to proceed against Queen, a man who the appellant sought to blame, it thereby deprived the appellant of the opportunity to blame him in a joint trial and thereby reduced the credibility of the appellant's explanation. We ask ourselves what he would have said if Queen had been indicted and had pleaded guilty? Mr Clare accepts that there is no authority directly on the point but he submitted as a result of the actions of the Crown Prosecution Service they had a significant effect and left the appellant in a very difficult position. He does not submit there was an abuse of process but rather, looking at the matter overall, the fairness of the trial could be called into question under Article 6 of the Convention for the Protection of Human Rights which confers on everyone the right to a fair trial.
17. It is the submission of the respondent in their skeleton argument that the fairness of the trial was not affected by Queen's absence. The appellant had the opportunity to blame Queen and did so without fear of contradiction. That appears to us to be a very powerful submission.
18. It is the clear view of this Court that Queen's absence from the trial in these circumstances in no way affected the fairness of the trial - indeed quite the contrary. As we have indicated, he not being there, Queen had no chance of refuting the appellant's evidence about him and thus the appellant's position was assisted and no possible question of unfairness begins to apply and the safety of the conviction is, in our view, not in doubt. This appeal is dismissed.
19. We observe before leaving this matter that this appeal was and is devoid of merit and not in our view an effective use of the Commission's no doubt limited resources and the resources of the Court of Appeal.