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Cite as: [2001] EWCA Crim 2185

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EDWARDS, R v. [2001] EWCA Crim 2185 (19th October, 2001)

		Neutral Citation Number: [2001] EWCA Crim 2185
		Case No: 2000/05742/Z3

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SOUTHWARK
(Mr Recorder Hooper QC)

Royal Courts of Justice
Strand, London, WC2A 2LL

19th October 2001

B e f o r e :

LORD JUSTICE HENRY
MR JUSTICE DOUGLAS BROWN
and
MRS JUSTICE HALLETT
____________________

REGINA

- and -

CHRISTOPHER AUGUSTUS EDWARDS

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

C J Cleverly Esq (instructed for the Appellant)
J J Robertson Esq (instructed for the Respondent)
____________________

Judgment
As Approved by the Court

Crown Copyright ©
____________________

Lord Justice Henry:

This is the judgment of the Court. On 24th May 2000 at the Crown Court at Southwark the appellant pleaded guilty to one offence of supplying a Class A controlled drug (ecstasy - Count 1), and to one offence of possessing a Class A controlled drug (cocaine - Count 3). On 8th September 2000 at the same court, before Mr Recorder Hooper QC, the appellant was convicted of one offence of possessing a Class A controlled drug with intent to supply (ecstasy - Count 2) and was sentenced as follows:

Count 1: supplying a Class A controlled drug (ecstasy), 18 months’ concurrent to Count 2;

Count 2: possessing a Class A controlled drug (ecstasy) with intent to supply, 3 years’ imprisonment;

Count 3: possessing a Class A controlled drug (cocaine), six months’, concurrent.

He now appeals against conviction with the leave of the Single Judge who referred his application for leave to appeal against sentence to the Full Court.

The facts were these. At 1.00am on Monday 25th October 1999 the appellant was arrested in Fabrics night-club in Charterhouse Street EC1. He had 29.5 ecstasy tablets in his possession (Count 2), 0.314 grammes of cocaine (Count 3) and had supplied two ecstasy tablets to a friend in the club as a birthday present (Count 1). He pleaded guilty to Counts 1 and 3, the issue for the jury on Count 2 was whether the appellant intended to supply the ecstasy tablets or whether, as the appellant contended, they were for his own personal consumption.

On the night in question, the appellant went to a night-club. There he saw a female friend. She said it was her birthday, he then gave her two ecstasy tablets. A bouncer saw this and reported it to PC Victoria Lees who went to the appellant, who on request produced a clear money bag which contained over 20 white tablets. He was searched and three further tablets were found together, as well as £210.99p in cash. The appellant was forthright and relaxed. PC Lees arrested him for possession of the tablets with intent to supply; she cautioned him and he made no reply. Later at the police station, one single tablet was found in the pocket of his trousers. He was interviewed and his account in interview broadly foreshadowed his defence. When searched, he had just under 30 ecstasy tablets on him. In his statement to the police he admitted that he had bought 50 at lunchtime, since when he must have taken 18 or 20. He added:

“That that must sound ridiculous, but some guys can drink and drink with no effect.”

The prosecution’s case in relation to the pills remaining in his possession was that he possessed them with intent to supply. They relied on the number of pills he had purchased, the number he had disposed of since purchase, and the number he had taken to the club as all pointing to possession with intent to supply rather than possession for his own consumption.

In his evidence, he accepted that he had taken between 18 and 20 tablets between lunchtime on the Saturday and 1.00am the following Monday. He called his brother-in-law as to his drug-taking habits. He had seen him take five or six, perhaps eight, ecstasy tablets over a five to six hour period. He also called a helper at the Drugs Project he attended, to say that his drug dependency was “chaotic”.

In an attempt to bolster his defence that all the tablets were for his own consumption, he sought to call as an expert witness a Mr Poulter, who had worked for eight years at Release, the drug advise charity, before going off to establish the Drug Education and Training Unit (DETRO). His witness statement stated that users can become tolerant to the drug which can encourage some to take more. He stated:

“Many users of this drug will start by taking one half or one tablet. It would be common for users to continue in their use, taking between one and two tablets during a session. However, some users take significantly more than this, and I have regularly had contact with individuals who take in excess of 12 during a session and periodically have been in contact with users who state [they] take substantially more than this in a 24 hour period.”

In conclusion he said:

“I would view a consumption rate of 1.25 tablets an hour over 16 hours ... as very high but still credible.”

To meet this evidence, the Crown gave notice of additional evidence from Detective Sergeant Webb. He too put himself forward as an expert. He there said that it was normal for users to take one tablet a night, though he knew those who took three or four, but with regard to the 28&frac12 seized from the appellant:

“I would say from my experience that these could not be consumed within a 24 hour period by one person without serious harm having been inflicted.”

Neither proposed expert had any formal qualification, whether medical or toxicological. Both relied solely on their experience rather than any academic materials such as surveys or reports. It was clear that Mr Poulter’s evidence relied on the accuracy of what drug users said to him as to how many pills they had taken over the period in question. In other words, it was classic hearsay, as was revealed when counsel for the appellant, Mr Cleverly, prayed in aid Mr Poulter’s answer that, as a result of his experience on the street, he could tell which drug users were reliable witnesses and which were not. He suggested that Mr Poulter would only have relied on the information as to the number of tablets taken over a defined period given by witnesses who he judged to be reliable, and would not have relied on answers he felt were unreliable. We were not impressed by that submission.

The judge refused to admit that evidence:

“[Mr Poulter] addresses, in the course of his report, what I regard as an unreliable population - and I use that term in the sense that it is used in statistics or statistical methodology. The population he addresses is the population of those who he has encountered taking ecstasy. I do not find that a safe basis on any footing whatsoever to accredit him with the expertise fit to exempt his opinion from the rule against hearsay. Therefore, the basis which he puts forward I find to be an unreasonable basis on which any reliable statistical or forensic opinion fit to exempt his opinion from offending against the hearsay rule can possibly stand.”

Accordingly, he declined to hear either Mr Poulter or DS Webb on the issue as to whether it was credible that the appellant could have taken that number of tablets in that time without significant harm.

Leave to appeal conviction was granted only on Ground 4 of the Perfected Grounds of Appeal:

“The trial judge erred by excluding the expert evidence on patterns of drug use and consumption,

(a) on the grounds that the evidence was not scientific and lacked a statistical basis, and/or

(b) without an oral examination, and/or

(c) setting a time limit for submissions, thereby rendering the conviction unsafe.”

In submission to us, grounds (b) and (c) were not pursued, leaving us with ground (a). We are satisfied there is nothing in that ground.

What on analysis both Mr Poulter and DS Webb were trying to do was to give opinion evidence (taking X ecstasy tablets in Y hours is/is not credible) founded on hearsay. The hearsay rule is here infringed where the court is asked to accept the truth of the ecstasy takers statements as to how many tablets they have taken. This is classic hearsay. Now considerable inroads have been made by statute where the effect of the exclusionary rule has been to disregard what is clearly generally reliable evidence, see for example the exception made for business documents in section 24 of the Criminal Justice Act, 1988.

The judge’s objection to the hearsay evidence is to its unreliability - Ruling 3C “... it seems to me to have no forensic basis whatever ...”, and his comments (Ruling 4C-E) that there was no reliable “... statistical or forensic opinion ...” fit to exempt this opinion from exclusion under the hearsay rule.

The judge was then unimpressed by the hearsay volunteered by both would-be expert witnesses. The source of the hearsay was not identified, and so not available for cross-examination; the anecdotal evidence was not supported by any forensic evidence (which could have been given by a doctor or toxicologist); and the judge was right to exclude it. It was value-less, and the judge was right to so treat it. Accordingly, this appeal against conviction is dismissed.

On dismissal of the appeal against conviction, we gave leave for and considered the sentence appeal. We have commented on the judge’s generous finding that the appellant was a social supplier and not a dealer. But at the same time, the judge had a better opportunity of evaluating the witness. He saw him, we did not. In these circumstances we feel bound to sentence consistently with that finding. Accordingly, we quash the sentence of three years and replace it with one of two years. To that extent the appeal against sentence succeeds.

England and Wales Court of Appeal (Criminal Division) Decisions

EDWARDS, R v. [2001] EWCA Crim 2185 (19th October, 2001)

JudgmentAs Approved by the Court

Judgment
As Approved by the Court