England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM INNER LONDON CROWN COURT
(HIS HONOUR JUDGE SALTER QC &
HIS HONOUR JUDGE ROUNTREE)

		Royal Courts of Justice Strand, London, WC2A 2LL
		6 November 2002

Lord Justice Potter:

1. Upon 29 October 2002 we heard two separate appeals against conviction by the same defendant/appellant, Conrad Haye. The first relates to a conviction for theft and the second to conviction upon two counts of possessing a controlled drug of class A with intent to supply. We allowed both appeals, indicating that we would hand down the written reasons for our decision later. Those reasons now follow.

The First Appeal

2. On 10 April 2001 at the Crown Court at Inner London before His Honour Judge Salter QC the appellant pleaded guilty on re-arraignment to theft of a mobile telephone. On 6 July 2001 he was sentenced by the same judge to 9 months imprisonment. He appeals against that conviction with leave of the single judge. The facts can be shortly stated. During the lunch hour on 24 January 2001 Derek Boateng, an eighteen year old schoolboy in the sixth form of a secondary school in Camberwell, was standing outside the school with a group of friends. Two cars pulled up nearby and the appellant and two other youths aged between 18 and 20 got out. They told Mr Boateng and his friends to come with them. Mr Boateng was reluctant to do so and the appellant, who was much taller than he, took him by the arm and asked him whether he had a mobile telephone. He searched Mr Boateng’s pockets and school bag. Mr Boateng was in fact hiding his telephone in the front of his sweater. The appellant appeared angry and pushed Mr Boateng saying “Don’t try to lie to me”. He showed Mr Boateng a knife which he had in his jacket pocket, whereupon Mr Boateng handed over his telephone and the appellant extracted the electronic SIM card which he gave back, before making off. The appellant was traced through the registration number of his car and Mr Boateng picked him out on an identification parade. In interview, the appellant admitted that he had been outside the school but denied that he had taken the telephone.
3. The sole ground of appeal is that the appellant’s guilty plea was a nullity because the statutory mode-of-trial procedure, required by paragraph 7 of of Schedule 3 to the Crime and Disorder Act 1998 (“The 1998 Act”), was not complied with for the ‘either-way’ offence of theft.
4. It is first convenient to set out the order of events which gave rise to the plea before the Crown Court. On 26 January 2002, the appellant was sent for trial at the Inner London Crown Court on a charge of robbery pursuant to s.51 of the Act. S.51 and Schedule 3 to the 1998 Act had come into force on 15 January 2002. S.51 effectively abolished committal proceedings for offences triable on indictment. It provides for offenders charged with such offences (together with related either way and summary offences) to be “sent” to the Crown Court for trial. S.52 supplements section 51 and gives effect to Schedule 3, which contains the detailed procedural provisions.
5. Once the case is at the Crown Court, where the charge relates to an offence triable only on indictment, the case proceeds with arraignment in the usual manner and, upon a plea of not guilty, the case will be adjourned with appropriate directions for the matter to proceed to trial. However, paragraph 7 of Schedule 3 provides as follows:

“7. (1) Subject to paragraph 13 below [which relates to children and young persons], this paragraph applies where –

(a) a person has been sent for trial under section 51 of this Act but has not been arraigned; and

(b) the person is charged on an indictment which (following amendment of the indictment, or as a result of an application under paragraph 2 above [which relates to applications for dismissal], or for any other reason) includes no offence that is triable only on indictment.

(2) ...

(3) The Court shall cause to be read to the accused each count of the indictment that charges an offence triable either way.

(4) The Court shall then explain to the accused in ordinary language that, in relation to each of those offences, he may indicate whether (if it were to proceed to trial) he would plead guilty or not, and that if he indicates that he would plead guilty the Court must proceed as mentioned in sub-paragraph (6) below.

(5) The Court shall then ask the accused whether (if the offence in question were to proceed to trial) he would plead guilty or not guilty.

(6) If the accused indicates that he would plead guilty the Court shall proceed as if he had been arraigned on the count in question and had pleaded guilty.

(7) If the accused indicates that he would plead not guilty, or fails to indicate how he would plead, the Court shall consider whether the offence is more suitable for summary trial or for trial on indictment.

8 ...

9 (1) This paragraph applies where the Crown Court is required by paragraph 7(7) ... to consider the question whether an offence is more suitable for summary trial or for trial on indictment.

(2) Before considering the question, the Court shall afford first the prosecutor and then the accused an opportunity to make representations as to which mode of trial will be more suitable.

(3) In considering the question, the Court shall have regard to –

(a) any representations made by the prosecutor or the accused;

(b) the nature of the case;

(c) whether the circumstances make the offence one of a serious character;

(d) whether the punishment which a Magistrates’ Court would have power to impose for it would be adequate; and

(e) any other circumstances which appear to the Court to make it more suitable for the offence to be tried in one way rather than the other.”

Paragraph 10 applies where the Court considers that the case is suitable for summary trial. It makes provision for the Court to explain to the accused in ordinary language his opportunity to consent to being tried summarily or opt for trial by jury. After explaining to him the power of the magistrates to commit him for sentence to the Crown Court under s.3 of the Powers of Criminal Courts (Sentencing) Act 2000, the Court shall ask him whether he wishes to be tried summarily or by a jury and, if he indicates his wish to be tried summarily, shall remit him for trial before the magistrates. If the accused gives no such indication, then the Crown Court retains its functions and proceeds accordingly.

Paragraph 11 provides that if the Crown Court considers that the offence is more suitable for trial on indictment the Court shall tell the accused that it has decided that it is more suitable for him to be tried by a jury and shall retain its functions in relation to the offence and proceed accordingly.

6. Having been sent to the Crown Court, on the first hearing date fixed the appellant remained charged with robbery and the case was adjourned for plea and directions. At the plea and directions hearing on 1 March 2001 before His Honour Judge Rountree, the prosecution preferred a bill of indictment containing a single count of theft and dropped the charge of robbery. The appellant was arraigned and pleaded ‘not guilty’, the case being adjourned for trial. When the matter eventually came on for trial on 10 April 2001, the appellant was re-arraigned on the theft charge in order to plead ‘guilty’. He did so and sentence was adjourned until 6 July 2001, when sentence of nine months imprisonment was passed. His appeal arises as a result of what happened before Judge Rountree on 1 March, as to which we have a transcript of the proceedings.
7. Mr Khan, prosecuting counsel, informed the judge that a plea and directions form had been completed and the judge indicated that the indictment should be put to the appellant. It was so put, the appellant pleading not guilty. The judge then asked:

“Is this an election by the defendant for trial?”

Mr Khan replied that it had come to the Court under section 51 of the 1998 Act. The judge asked:

“Who then decides whether it can come to this Court?”

Mr Khan replied that as an indictable matter it was automatically transferred.

Mr von Santen-Pagava then observed that there had been some confusion as to whether the matter was to be put as a count of theft or a robbery charge. The judge said

“Is there a problem? Do you want me to put it back so that that can be sorted out?”

Mr Khan replied:

“Your Honour, I think we will leave it as a theft charge.”

8. The judge then moved to consider the question of directions. He asked:

“Are we ready for a pleas and directions at this stage or do you want me to put it back for another week or a fortnight?”

Mr von Santen-Pagava replied that he was not asking for the matter to be put back. The making of directions then proceeded.

9. Thus, it is apparent that the procedure required to be followed under Paragraph 7 of Schedule 3 prior to arraignment on the theft charge, in particular under sub-paragraphs (4), (5), (7) and paragraph 9(1)-(3) and 10(1)-(3) was not followed, nor was active consideration given to the question whether the appellant should be tried summarily or continue to be dealt with in the Crown Court. On the other hand, it is equally apparent that, so far as the defence was concerned, the appellant’s representative, Mr von Santen-Pagava gave no indication that the appellant wished to be tried summarily or that he was other than content for matters to proceed in the Crown Court. It is common ground between the parties to this appeal that all concerned, that is to say prosecution, defence and judge, were unaware of the procedure required under the relevant paragraphs of Schedule 3 at the time.
10. It is contended for the appellant in this appeal that, in the result, the proceedings which followed upon the plea of guilty were a nullity. Mr von Santen-Pagava for the appellant relies by way of analogy upon a series of cases, decided prior to the introduction of the new procedures, where defendants have had their conviction quashed on the basis that they were not informed by the magistrates courts before whom they appeared that they had a right to elect jury trial.
11. In R v Cockshott [1898] 1 QB 582 the Divisional Court was concerned with the right of a person charged before a court of summary jurisdiction under s.17(1) of the Summary Jurisdiction Act 1879 “on appearing before the Court and before the charge is gone into but not afterwards, [to] claim to be tried by a jury ... [whereupon] the Court of Summary Jurisdiction shall deal with the case in all respects as if the accused were charged with an indictable offence ...”. The Court held that the person charged must be told by the Court of his right to trial by jury before pleading to the charge. The appellant, not having been informed of that right, and having pleaded guilty to the charge, the conviction was held to be bad.
12. Wright J observed:

“I think it would be wrong to fritter away the protection which the section intends to give to accused persons. It intends to give them protection in the broadest and most generous way by providing that the option of trial by jury shall be put before any accused person before the charge is gone into. I think the option ought to be put before him before he is asked whether he pleads guilty or not guilty. The protection is possibly even more necessary where he intends to plead guilty. He might plead guilty because, though he had no great confidence in the tribunal before which he appeared, he thought that by pleading guilty he would get a lighter sentence; whilst, if he knew he had a right to be tried by jury, he would prefer to avail himself of that right. I think it is immaterial whether in fact he knows that he has the right or not; he ought to be informed of it by the court. I come to the conclusion that in the present case the defendant did not know of the right. His solicitors says they did not. As to the waiver which has been suggested, there cannot be waive of a right which the defendant does not know that he has. I doubt whether he could waive the right to be informed of his option to be tried by a jury if he knew that he had the option. I am inclined to think that, the duty to inform having been imposed upon the court for the protection of all accused persons, the right to be informed could not be waived.”

13. That decision was followed in R v Kent Justices ex parte Machin (1952) 36 Cr App R 23, where a defendant was told by the clerk to the Magistrates of his right to trial by jury and consented to be dealt with summarily but was not told of the possibility that he might be committed to Quarter Sessions for sentence, under a power newly introduced by s.29 of the Criminal Justice Act 1948. Lord Goddard CJ stated:

“Following the reasoning of the court in Cockshott’s case (supra) we feel we must give effect to it [ie s.29] and we must therefore hold that certiorari must go and these convictions must be quashed. The convictions must be quashed because the magistrates took upon themselves, although with the consent of the applicant, to try cases summarily without a strict compliance of the provisions of the Act, which alone allow an indictable offence to be dealt with summarily. It was a very venial mistake in the magistrates and one can well understand their overlooking this provision hidden away in the Schedule; but the applicant is entitled to take advantage of it and therefore the conviction and the committal were bad.”

14. In R v Horseferry Rd Magistrate’s Court ex parte Constable [1981] Crim LR 504, the decision of magistrates to proceed summarily was quashed even thought the defendant had consented to summary trial, because he had not been given the opportunity to make representations as to mode of trial or told that he had the right to make them as provided for by s.20 and s.21(2) of the Criminal Law Act 1977. Thus it appears that the Divisional Court has consistently taken the view that, since the jurisdiction of Magistrates’ Courts to try offences triable either way derives solely from statute, any failure to comply with the statutory procedure laid down for determining mode of trial will have the consequence that if the magistrates proceed to trial, the hearing will be regarded as ultra vires and liable to be quashed, even where the magistrates have purported to attain the consent of the accused and even if he is legally represented: see the Kent Justices case supra.
15. Mr von Santen-Pagava submits that failure to comply with statutory provisions applying to the Crown Court in relation to the right of a defendant to make representation and/or exercise choice as to mode of trial should lead to the same result. He points out that, in this case, there appears to have been not merely a departure from the prescribed procedure for determining the mode of trial but an absence of any determination, in the sense of a conscious decision, as to the appropriate method of trial. He submits that the appellant was thus deprived of the opportunity of seeking to persuade the judge that summary trial would be more suitable when he had a statutory right to make representations and he also lost the opportunity of consenting to summary trial if the court, on a full consideration, considered it more suitable.
16. Mr Hopkins for the respondent (who did not appear below) has acknowledged that the appropriate procedure was not followed, in circumstances where it appears that all the parties involved were unfamiliar with, and failed to refer to, the procedure provided for in Schedule 3. In his written skeleton argument he submitted that the judge was entitled to assume from the acquiescence of defence counsel that the appellant was content for the matter to proceed in the Crown Court and had no wish for it to be dealt with by the magistrates. He also pointed out that the appellant was almost certainly not prejudiced, because if he had been tried in the Magistrates’ Court, he would probably have been committed back to the Crown Court for sentence, particularly as he was in breach of an earlier conditional discharge imposed by the Camberwell Green Magistrates’ Court, for which he subsequently received a consecutive term of three months imprisonment.
17. Nonetheless, before us, Mr Hopkins conceded that the argument of Mr von Santen-Pagava appeared to be correct and he did not oppose the appeal. In our view he was right so to concede. Paragraphs 7-13 of Schedule 3 reflect the provisions regulating the procedures required in the Magistrates’ Court in respect of an offence triable either way under s.17A-s.20 of the Magistrates’ Court Act 1980 (c.f. paras 7(2)-(7) of the Schedule and s.17A(2)-(8) and s.18(1) and (2) of the Act; para 9 and s.19; para 10 and s.20). S.17A of the 1980 Act (together with s.17B and s.17C) were inserted into the Act by s.49(1) and (2) of the Criminal Procedure and Investigations Act 1996 and s.18(1) was amended accordingly by s.49(3) of the 1996 Act. However, the essential structure and provisions of the 1980 Act in relation to the decision as to suitability for summary trial or trial on indictment, and the necessity to inform the defendant of his rights and to receive representations as provided for in s.18-s.20 are of much older statutory provenance and form the basis of the series of decisions of the Divisional Court to which we have referred.
18. In the result, therefore, we consider that the proceedings subsequent to the hearing before H.H. Judge Rountree in relation to the indictment alleging theft must be considered a nullity and the sentence of 9 months imprisonment will be quashed together with the consecutive sentence of 3 months imprisonment for the offence for which the appellant had been conditionally discharged.

The Second Appeal

19. On 6 July 2001, at the Inner London Crown Court before His Honour Judge Campbell and a jury, the appellant was convicted by a majority of 11:1 on two counts of possessing a controlled drug of Class A with intent to supply, count 1 relating to crack cocaine and count 2 to heroin. On the same day he was sentenced to 2 years 9 months imprisonment on each count concurrently. He received consecutive sentences of 9 months imprisonment for the offence of theft with which we have dealt above and 3 months imprisonment for breach of an earlier conditional discharge, making a total of 3 years 9 months imprisonment. He appeals against conviction with leave of the single judge.
20. The short facts were that the appellant was found by police officers with crack cocaine and heroin in his possession. The issue was whether he intended to consume the drugs himself or to supply them to another. Formal admissions were made to the effect that the appellant was stopped by police officers while driving his car on 26 February 2001. In his possession was an “M&M” sweet packet containing 13 small packages wrapped in cling-film. Upon search of the appellant’s home a role of cling-film, a plastic carrier bag and cut or torn pieces of plastic bag material were found in the bedroom. The pieces of plastic were in suitcases which also contained women’s clothing. The packaging of the items found in the appellant’s possession did not originate from the roll of cling-film or plastic of the type found in his home. There was evidence of scientific analysis of the contents of the 13 packages which established that 4 contained crack cocaine and 9 contained heroin. In interview the appellant said that the drugs were for his own use.
21. In giving evidence in his own defence, the appellant said that he usually bought two or three rocks of crack cocaine for £10 each. He earned £180 per month but he had some savings. He borrowed £50 from Andrine Allan. He asked his dealer for crack cocaine to the value of £100 and was given the 13 wraps, receiving a discount for buying in bulk. He did not know that some of the wraps contained heroin. He thought they were all crack cocaine. He put them all into an M&M packet. While running an errand for his aunt, he was stopped because his tax disc was out of date. He did not intend to sell the drugs. The cling-film in his bedroom was used to wrap up left-over pieces of crack cocaine which he used himself, his practice being to smoke half a rock at a time. The cling-film was kept in the carrier bag, and the other pieces of plastic were in his mother’s suitcases and were nothing to do with him. Andrine Allan was also called as a witness. She confirmed that she lent the appellant £50. She asked him what it was for but he would not tell her.
22. It is accepted for the appellant that the summing-up of the judge was full and fair, save for one matter which is the subject of the sole ground of appeal. It is said that the judge failed to direct the jury correctly on their approach to the evidence of cling-film and pieces of plastic found in the appellant’s home. It is said that the judge should have directed, but failed to direct, the jury that:

i) they should regard the evidence as relevant only if they rejected the innocent explanations for it put forward by the defendant;

ii) that, if there was a possibility of these items being in the defendant’s room for reasons other than drug dealing, the evidence would not be probative of intent to supply; and

iii) that only if they concluded that the items indicated not merely past dealing but an on-going dealing in drugs, could they take into account this evidence in considering whether the necessary intention had been proved in respect of the drugs the subject of the charge.

It is complained that, instead, the judge directed the jury on this issue in general terms that the value of the evidence was a matter for them.

23. The technique which the judge employed in the main section of his summing-up in relation to proof of intent to supply was to enumerate the particular aspects of the evidence upon which the prosecution relied which, put together, they said was sufficient to prove such intent. First he dealt with the number of wraps found in the possession of the defendant when his car was stopped which suggested 13 separately wrapped ‘deals’ rather than personal supply; then he dealt with the fact that, of the 13 wraps, 4 were of crack cocaine and 9 of heroin whereas the defendant stated that he was a user of crack cocaine and believed that all the wraps were of that substance. Then the judge came to the question of what was discovered at the defendant’s home. The passage complained of ran as follows:

“Following his arrest his premises were searched. In the premises there was cling-film, a plastic bag and some cut or ripped bits of plastic in a suitcase. Well, you will remember – and this is a point for the defence rather than the prosecution – that none of those items that were found forensically are linked with the items that were found and the wrappings that were found in Mr Haye’s possession. In fact, it goes further; definitely the cling-film was not from that roll of cling-film, the outer wrapping was not from the bag or the bits of plastic. So they have no direct linkage with the matters in this case. The prosecution say, however, that some or all of these items might be consistent with the sort of things a drug dealer had in his room and they are therefore probative, help to prove the prosecution’s case that the items he had on 26 February were for supply to others.

What do you think of that? Cling-film? Well, we all have cling-film, have we not, in our houses these days? I venture to think that not many of you have it in the bedroom because one cannot really think why one has it in the bedroom. Mr Haye tells us why he had it in the bedroom and he says frankly he had it in connection with drugs – not his supply of drugs but he buys deals (he told you when we come to his evidence) £10 deals, half of that is enough to make a spliff, to sprinkle on a bit of cannabis, and he wraps the other half in the cling-film. That is what he says. ... It is not criminal to have cling-film. It is for you to decide whether or not it has any evidential value in this particular case. If you think it does not or may not have any evidential value, then you put that out of the equation as far at the prosecution are concerned.

The carrier bag does not seem, you may think, to have really any relevance at all. I did not look at it. Tesco’s used to use these sort of blue bags but I think they have ‘Tesco’s’ written on the side; but there we are. There was a bag there. Mr Haye says, “That was the bag that the cling-film was in the kitchen when I took it in”. As for the cut pieces, well again they look a bit odd, but they were not linked to these drugs, certainly. It seems accepted that they were in suitcases, the suitcases had women’s items in them. Mr Haye’s says that they were his mother’s suitcases and that was not really challenged. So you might think that those items that were found in the room add little to the prosecution case, or you might think they add something to throw into the melting pot to help prove the prosecution’s case. It is for you to sift out.” (emphasis added)

24. It is of course often the case that evidence is adduced by the Crown to prove that a defendant has an intention to supply drugs which were found in his possession, which evidence is only probative in so far as it indicates that he is an active dealer in drugs. Frequently the evidence cannot be shown to have any direct link with the drugs which have been found in the defendant’s possession but may nonetheless be indicative of current activity as a drug dealer.
25. The position in relation to sums of cash has been considered in a number of authorities and is best set out in the case of R - v - Steven v Grant [1996] 1 Cr App R 73 at 78 per Lord Taylor CJ:

“The finding of money, whether in the home of the appellant or perhaps, more cogently, in the possession of the appellant when away from his home, and in conjunction with a substantial quantity of drugs, is capable of being relevant to the issue of whether there was proved and intent to supply. It is a matter for the jury to decide whether the presence of money, in all the circumstances, is indicative of an on-going trading in the drugs, so that the presence of the drugs at the time of arrest is capable of being construed as possession with intent to supply ...

... in Morris, as already indicated, the courts said that where such evidence was admitted it was incumbent upon the judge to give a direction to the jury as to the way in which they should approach the question of whether the finding of the money is probative of the necessary intent. In the present case it is clear, and it is conceded on behalf of the Crown that the learned judge gave no such direction. In our judgment it is necessary in the circumstances, for the judge to indicate that any explanation for the money which has been put forward by way of an innocent explanation by the accused would have to be rejected by the jury before they could regard the finding of the money as relevant to the offence. Again the jury should be directed that if there was any possibility of the money in the accused possession for reasons other than drug dealing, then the evidence would not be probative. If, on the other hand, the jury were to come to the conclusion that the presence of the money indicated not merely past dealing, but an on-going dealing in drugs, then finding the money, together with the drugs in question, would be a matter which the jury could take into account in considering whether the necessary intent had been proved.“

26. By logic, and upon authority, the same principles apply where the prosecution relies on a list of names, or upon items properly to be regarded as drugs paraphernalia generally: see R v Lovelock [1997] Crim LR 821. In the case of R v Malik [2000] 2 Cr App R 8 at 16, a case concerning the proper direction to be given in respect of a large sum of money found on the defendant at the time of his arrest in relation to a charge of conspiracy to supply, the court observed (per Lord Bingham CJ) that it is not necessary for the judge as a matter of law to tell the jury that, if they rejected the explanation of the appellant, they must also rule out the possibility of any explanation other than that of the prosecution before treating the possession of the money as evidence of conspiracy.
27. In resisting this appeal, Mr Hopkins for the Crown accepts the principles stated in Grant and Lovelock. However he points out that, in the passage complained of, the judge, when dealing with the items which were all recovered from the appellant’s bedroom, effectively reminded the jury of why the defendant said it was there. In particular the cling-film (which in any event was not the same as that used in the wraps found upon the appellant when he was stopped) was used to wrap portions of his own surplus crack cocaine when he had some left over after personal use and wished to keep it for later. He also submits that, in the remainder of his direction, the judge all but destroyed the other items as being of any substantial evidential value so far as the prosecution were concerned.
28. The points which Mr Hopkins makes are plainly correct. Nonetheless, despite the judge’s indication given as to the weight which the jury might attach to the evidence in respect of the items found, he did simply leave the matter to them on the basis that it was for them to decide the evidential value to be attached to such items, and he did not give the jury guidance along the lines indicated in paragraph 22 above, which is in our view an accurate summary of the effect of the authorities: c.f. the guidance given in model direction 36 in the Crown Court Bench Book produced by the Judicial Studies Board. Whether or not it is necessary as a matter of law, a direction which makes clear the principles set out in paragraphs (i)-(iii) of paragraph 22 above is generally necessary in cases of this kind and should be given as a matter of practice.
29. So far as the instant appeal is concerned, the case against the appellant was a strong one but, in the light of his explanations, not obviously overwhelming. Despite the practical guidance given by the judge as to the weight of the evidence, it may well be that the jury were impressed by the nature of the items found and, in our view, they should have received a direction along the lines indicated.
30. The appeal is therefore allowed and the convictions quashed.
31. In the light of the period of imprisonment which the appellant has already served, we do not order a retrial.