B e f o r e :
(LORD JUSTICE ROSE)
MR JUSTICE GOLDRING
MR JUSTICE WILKIE
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MR J AUSTIN appeared on behalf of the CROWN
Crown Copyright ©
"And does the impression arise in the defendant's interview that he is in fact a heroin user?
Your Honour, yes.
And is the evidence that the prosecution have already obtained quite clearly to the effect that this is perfectly untrue?
Your Honour, no. It is not such much that, as the fact that of course the prosecution say he was selling the drug. At first blush, the papers would seem to suggest that he was selling rather than simply buying and sharing with friends.
Yes, but not to fund any habit that he himself has, because the hair evidence, as I understand it, demonstrates quite clearly that he is not a heroin user. He is a commercial supplier, isn't he?"
The reference to "the hair evidence" was the absence of any indication of heroin in the appellant's hair on analysis. The judge asked whether any check had been made on the appellant's mobile telephone. He said it ought to be. Finally, in response to the request for a seven day adjournment, the judge said this:
"There will be seven days for the prosecution to consider in this case the basis of the plea."
"Do you agree that the ultimate decision as to whether or not a basis of plea is accepted, is for me?
I reject that basis of plea. I propose to sentence the defendant upon the basis that he is retailing heroin on the streets of Cardiff."
"On that basis, your Honour, in my respectful submission, there will be need to be a Newton hearing."
The judge agreed. There was discussion as to the witnesses who should be called. The judge later said this:
"I would have thought upon the basis of the police evidence alone, it is pretty clear what the defendant was doing. Her evidence [he was referring there to Miss Flemwell] I would have thought, makes it abundantly clear. She sought him out because she knew that he was supplying heroin." (Page 3B).
"Can I respectfully draw your Honour's attention to the fact that you have reserved the matter to yourself? This is in the context of one judge, taking one view and your Honour taking a different view."
"No, no. No other judge has taken any different view. When the matter was before His Honour Judge Richards, all that he was faced with was the prosecution saying 'The basis of plea is accepted.' I don't think he expressed a view at all, did he?
He accepted that the matter would be sentenced on that basis.
Yes. And I am the sentencing judge and I refuse to sentence on what I consider to be a fatuous basis. Ultimately it is the view of the sentencing judge. That is me."
"Having read the committal papers and the notice of further evidence, dated 21st December, I was surprised that the prosecution were even entertaining such consultation."
That is a reference to the prosecution seeking an adjournment for consultation. We resume:
"The case against the Defendant, of being a commercial street dealer, was, on the face of papers, a compelling one in my judgment."
He referred then to the hearing on 11th January 2005 before His Honour Judge Richards. It is unnecessary to go into that.
"I had re-read the papers... prior to that hearing and had seen, to my astonishment, what had happened on the 11th January... What occurred on 25th January is fully recorded in the transcript to which I have just referred. In a nutshell, as the sentencing Judge and as I was entitled to, I rejected the basis of plea which I described as, I quote 'fatuous' and indicated that I propose to sentence the Defendant as a street dealer."
"That is the background leading to the Newton hearing which began mid afternoon on February 10th, a hearing of importance both for the public and the Defendant, bearing in mind the gulf between the case as I saw it on paper and the basis of plea and the substantial difference in approach to sentencing, dependent upon my findings. In assessing the evidence I have, for the purposes of the Newton hearing, of course, confined myself to considering only that which was actually called by the Prosecution, the forensic evidence read with the consent of the Defence and the evidence given by the Defendant himself. I have also reminded myself of the burden and standard of proof. I have also carefully considered the comprehensive and, if I may say so, well presented submissions of Mr Render."
Having dealt with the prosecution witnesses in turn, the judge analysed the scientific evidence which did not support, as he claimed, that the appellant was a drug addict. He analysed the appellant's interviews. He came, in broad terms, to the following conclusions. Miss Flemwell was totally credible. He believed the police evidence. He considered the scientific evidence to be of great significance. He found the appellant's account incredible. He finally said this, page 17D:
"I reject the defendant's account. I am convinced that he has been a regular visitor to, if not permanently resident in Cardiff, for some time and has, for I again believe Miss Flemwell on this point, been a street level supplier of heroin for a long time. This is, in my judgment, a clear a case of street level commercial supply as one could possibly imagine, with the Defendant being caught, effectively, red-handed."
"The question is whether the fair-minded and informed observer, having considered the facts would conclude that there was a real possibility that the Tribunal was biased."
(See paragraph 103in the speech of Lord Hope of Craighead) He also relies, upon the decision of Hauschildt v Denmark 1989 EHRR 266. That decision, it seems to us, adds nothing to Porter & McGill.