England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2 Tuesday, 24 April 2007

1. MR JUSTICE GROSS: On 15th March 2006 in the Crown Court at Winchester before His Honour Judge Barnett, the appellant, Patrick Franklin Denton, now aged 31, was convicted of three counts of possession with intent to supply class A drugs, count 1 (cocaine), count 2 (heroin) and count 3 (heroin). On 13th April 2006 he was sentenced to five years' imprisonment on each count concurrent and the court made various ancillary orders. He was, for completeness, acquitted of a further count concerning the possession of cannabis. The appellant appeals against conviction by leave of the full court.
2. The facts of the matter so far as relevant for this appeal may be shortly summarised. On 9th November 2005 the appellant purchased a red Fiat Brava motorcar for some £450 in cash. On 11th November 2005, two days later, PS Heath and PC Gardiner saw the appellant driving the car. As his appearance was thought to match police intelligence of a drug dealer in the area, the police officers decided to stop and search the appellant and his car. After a cursory search they found nothing of interest.
3. Two plain clothes police officers, Holiday and Thomas, arrived at the scene while the appellant was still present but they left. At 12.10 hours, a little later, the appellant was handcuffed and taken to the police station for a strip search arriving at 12.20. Later, two other police officers returned to the Fiat Brava where PCs Holiday and Thomas were once again present and the car was searched for a second time from 12.30 onwards in the absence of the appellant.
4. At 12.50 the officers who conducted the second search of the car informed those at the police station that 51 wraps of crack cocaine and heroin had been found inside one of two newspapers located on the driver's seat. Another wrap of heroin had been found behind the driver's seat. The appellant was arrested and strip searched. He was in possession of £280 in cash, keys to a property and to a red Vauxhall Astra and two mobile telephones, but no drugs. A search of a property produced some more mobile telephones and a small amount of cannabis relating to the count on which he was acquitted.
5. At the time of his arrest, when replying to the caution, the appellant said the drugs had been planted. The appellant's fingerprints were only found on the newspaper inside which no wraps had been located.
6. The prosecution case was in a nutshell that the appellant was in possession of the drugs found in his car with intent to supply. The defence case was that PS Heath had retained the car keys and planted the drugs in the car after the appellant had been taken to the police station and before the other officers had arrived to conduct the second search of the vehicle at about 12.30 hours. Various breaches of the Code, Code A of the Police and Criminal Evidence Act, were also relied upon but they do not matter further for the purposes of this appeal.
7. At the end of the cross-examination of PS Heath on the Friday morning, that is Friday 10th March 2006, the judge asked a number of questions relating to the defence case that PS Heath had the opportunity to and did plant the drugs. The issue for the jury of course was whether the prosecution had made them sure that the appellant was in possession of the drugs with intent to supply or whether they had been or might have been planted in the car by PS Heath. In the event the jury accepted the prosecution case and convicted the appellant.
8. Mr Long, counsel for the appellant at trial and today before this court, advanced as a ground of appeal the proposition that the judge had erred in law and undermined his independence by asking the questions to which reference has already been made of PS Heath, including whether the officer would jeopardise his career by planting drugs in the car. Mr Long said the questions and their timing supported the prosecution case and undermined the defence case, coming as they did at the end of Friday morning's cross-examination and prior to the adjournment of two days - the court was not sitting that afternoon.
9. In the event, the matter came before the full court where the appellant's application for leave was renewed and granted on this ground and this ground alone.
10. It is at once appropriate to turn to the transcript of the part of the hearing during which the judge put the questions of which complaint is made. In fairness to all concerned, we must read it in full:

"MR LONG: It is Mr Denton's case that he does not know anything about the drugs found in the car or indeed in the house subsequently, and that they may have been there before - although that would seem unlikely - and otherwise, Sergeant, I am suggesting that you placed those drugs in the car and that is why they were found subsequently by Police Constable Holiday. Sergeant, did you place those drugs into the car?

A. Never heard anything so ridiculous in my life.

JUDGE BARNETT: Yes, well had you done so that certainly would give rise to a disciplinary offence, would it not?

A. I think there would be a disciplinary offence there, sir.

Q. There is no joking matter about it.

A. Well, no, sorry, your Honour.

Q. If you had done that you would be putting 17 years of your service on the line, would you not?

A. I've had seven commendations for excellent work, sir.

Q. Just answer my question if you would?

A. No drugs were placed in that vehicle by me, sir, no.

Q. And if you had done so you would be exposing yourself to a very serious allegation of----

A. I would be going to prison, your Honour.

Q. Yes, quite. Now what I want to get clear from you, if I may, is this. Initially it is you and Police Constable Gardiner who arrive in your vehicle, Police Constable Gardiner getting out first and then matters proceed as you describe?

A. That's correct.

Q. Next on the scene are Police Constables Thomas and Holiday, who come in a police car or a police van?

A. They come in, they're plain clothes officers, I think they probably came in an unmarked vehicle.

Q. So a police car?

A. Where I was standing I don't know what car they came in.

Q. We then heard about a van.

A. Yes, a van then turned up.

Q. And who was driving that? Somebody else?

A. I don't think I actually saw who the driver was, to be honest.

Q. But it is in that van that you tell us the defendant and Police Constable Gardiner, in other words, your partner?

A. Yes.

Q. Go back to the station, correct?

A. Yes, and then I take my vehicle...

Q. Leaving you with your own vehicle?

A. Yes.

Q. And you were not left alone with the car?

A. No, I would then reverse my vehicle out and my recollection is I drove back to the police station leaving PC Holiday and Thomas stood in the alleyway.

Q. With the car?

A. With the vehicle.

Q. So if anybody was left with the car it was Police Constables Thomas and Holiday, right?

A. Yes. I don't have 1,000 in a jug in my pocket.

Q. You may not know the answer to this, was there a time when the car was left unattended before it was recovered to the police station?

A. Not to my knowledge, no.

Q. Would it have been?

A. I don't know, your Honour, I hope not.

Q. So you do not know whether the car was left unattended?

A. When I locked it, I think by habit, just by locking a vehicle, my intention was for them to do the search of the vehicle, so I'm presuming that that was the case, but then of course I've driven back to the police station, which is literally two minutes away, with the car keys in my pocket.

Q. Well you do not know what happened obviously after you left?

A. No. No. But I certainly wasn't left at the vehicle on my own.

Q. Can I just ask you so that the jury have it clear in their mind, it is not a question of you being the last to leave, driving off leaving the car unattended?

A. No, not my recollection at all.

Q. When you left, on your evidence, at least we have Police Constables Thomas and Holiday, plain clothes men, there?

A. That was my recollection, yes, and I certainly didn't put drugs into the car.

JUDGE BARNETT: I am sorry, Mr Long, I wanted to make sure that we had that crystal clear.

MR LONG: I am very much obliged."

11. It is right, as has been emphasised today, that the judge put in that sequence some 22 questions, but it is also right to observe that those 22 questions included at least one rebuke to the witness to take the matter seriously and a fair number of questions which were on any view innocuous. We underline that the questioning took place on the Friday immediately before the adjournment for the weekend. The trial resumed on the Monday. Mr Long told us that he then continued his cross-examination of the Sergeant on the Monday. The trial continued from the Monday to the Wednesday. In the course of the Wednesday the judge delivered his summing-up and the jury subsequently retired.
12. We turn at once to the summing-up. It was a relatively full summing-up of which no complaint is made. In the course of it the learned judge dealt with Police Sergeant Heath's evidence leaving the central issues of opportunity and planting squarely with the jury - see especially pages 13 to 15. As is plain from the summing-up, there was of course the evidence of a number of witnesses for the jury to consider. Moreover, at pages 20 and following the judge gave a careful summary of the appellant's evidence. Finally, at page 24 he summarised, succinctly, the gist of the dispute in this case.
13. For the appellant, Mr Long, in a careful advice and written skeleton, together with his oral submissions today, put the matter this way. He emphasised that the point about planting was tenable. It was also central to the appellant's defence. He complained in particular of the timing and nature of the judge's intervention. It came at a key moment just before the break for the weekend adjournment. He had carefully constructed his cross-examination to leave it for sound tactical reasons upon, as he put it, a high note. The effect of that cross-examination, he submitted, was undermined by the judge's intervention at that point in time. The intervention served to weaken the defence in the sense that it told against both the opportunity for the officer to plant the drugs and the fact of the planting. In so doing the judge had undermined the fairness of the trial and the safety of the conviction.
14. Mr Long drew our attention to the authority of R v Sharp [1994] QB 261 and in particular to a passage in the judgment delivered by Stuart-Smith LJ at page 273. That passage reads as follows:

"When a judge intervenes in the course of examination, or particularly cross-examination, a number of problems can arise depending on the frequency and manner of the interruptions. First the judge may be in danger of seeming to enter the arena in the sense that he may appear partial to one side or the other. This may arise from the hostile tone of questioning or implied criticism of counsel who is conducting the examination or cross-examination, or if the judge is impressed by a witness, perhaps suggesting excuses or explanations for a witness's conduct which is open to attack by counsel for the opposite party. Quite apart from this, frequent interruptions may so disrupt the thread of cross-examination that counsel's task may be seriously hampered. In a case of any complexity cross-examination of the principal witnesses is something that calls for careful preparation and planning. It is the most important part of the advocate's art, because a competent cross-examination is designed to weaken or destroy the opponent's case and to gain support for the client's case. But it is easier said than done. If the judge intervenes at a crucial point where the witness is being constrained to make an important admission, it can have an adverse effect on the trial.

In general, when a cross-examination is being conducted by competent counsel a judge should not intervene save to clarify matters he does not understand or thinks the jury may not understand. If he wishes to ask questions about matters that have not been touched upon it is generally better to wait until the end of the examination or cross-examination. This is no doubt a counsel of perfection and a judge should not be criticised for occasional transgressions; still less can it be said in such cases that there is any irregularity in the conduct of the trial or that the verdict is unsafe or unsatisfactory. But there may come a time, depending on the nature and frequency of the interruptions that a reviewing court is of the opinion that defence counsel was so hampered in the way he properly wished to conduct the cross-examination that the judge's conduct amounts to a material irregularity."

As already remarked, Mr Long relied on the passage in particular as to the timing of the intervention. It is, however, also fair to underline at once that, so far as can be seen from the report in Sharp, the frequency of interventions by the judge in that case was considerable.

15. Finally, Mr Long drew our attention to the picturesque passage in R v Roncoli [1998] Crim.L.R 584 where in the commentary a reference is made to the analogy drawn by Cumming-Bruce LJ in an earlier unreported case:

"The judge is not an advocate. Under the English and Welsh system of criminal trials he is more like the umpire at a cricket match, he is certainly not the bowler, whose business it is to get the batsman out."

As the commentary went on to observe in that particular case, the judge appears not only to have "bowled an over of her own, but to have thrown in a couple of bouncers". The analogy may not be entirely exact, but picturesque it certainly is and we are grateful for it.

16. In the event having anxiously considered Mr Long's submissions we did not need to trouble Mr Phillips, the advocate for the Crown. In his skeleton argument, however, Mr Phillips had helpfully drawn our attention to a passage in the current edition of Archbold at paragraph 7-67 at page 1063. The passage refers to comment in a summing-up but it is perhaps worth citing here. The editors, having already observed that the question as to comment is whether it fundamentally unbalances a summing-up, continued by saying this:

"In certain restricted areas the Court of Appeal and the Court of Criminal Appeal have developed particular principles as to the extent to which a judge may properly comment. A summing-up should not contain any words indicating that the acquittal of the defendant will or may ruin a police witness who has given evidence against him; nor should any comment be made to place police witnesses in any special category."

Pausing there, a number of authorities are cited finishing with the case of Keane [1992] Crim.L.R 306 in which it was "held to be reasonable to point out that anyone, police officer or otherwise, who gives deliberately false evidence runs the risk of severe punishment for perjury and perverting the course of justice, and to tell the jury that they may weigh that against any suggested motive on the part of the witness." The authorities are then considered a little further and the learned editors of Archbold conclude the discussion in this way:

"The sort of comment which was actually condemned...was one which suggested that the mere fact of acquittal would bring ruin to a police witness whose veracity had been attacked by the defence. It is obvious that this is not so and it is obviously correct that the courts should not tolerate any such misleading suggestions being made. It is equally obvious, however, that any witness who lies, let alone participates in a conspiracy to pervert the course of justice, runs a risk, and any witness who is found to have lied (an acquittal is not such a finding) will be in serious trouble; so long as any comment recognises this distinction, it is submitted that it is perfectly proper to make it."

17. As it seems to us, viewed narrowly, the questions as to the consequences if PS Heath planted the drugs appear to be on the right side of that line, though we do not rest our conclusions on a literal or narrow approach to the interventions in this case.
18. Instead, in our view the matter is to be considered more broadly. Judges must not be placed in a straightjacket. Judges must be free to establish the true context in which evidence is given and to clarify the true state of the evidence. Judges should not be inhibited from doing so by fear that an observation or question will be taken out of context and may be related to an allegation of unfairness. Moreover, there can be no fixed rules as to when it is appropriate for a judge to intervene. All must depend on the facts of the individual case. So far as concerns Sharp, as Stuart Smith LJ put it, it was no doubt a counsel of perfection to advise judges to wait until the end of the question. Indeed on some occasions there may be advantage in a judicial question or intervention at an earlier stage so that counsel can deal with it without the need for further questions after the conclusion of re-examination. Conversely, as is apparent from the concerns to which this case gave rise before the full court on the application for leave, sustained questioning by the judge should be embarked on only with caution, having regard to the need for judicial restraint and the preservation both of impartiality and the appearance of impartiality. It does not however follow, as underlined by Sharp, that even judicial interventions which of themselves might raise an eyebrow necessarily result in an unfair trial or an unsafe conviction. Such interventions or questions must be considered in the context of the evidence as a whole, of the conduct of the trial as a whole and also with regard to the summing-up. For completeness, so far as concerns Sharp, the frequency of interruption was such that the view of the court in that case can readily be understood.
19. That was not the case here where it is only this series of questions of which complaint is made. Once the judge's questions in the present case are seen in the light of the context as a whole then in our judgment it becomes clear that there was here no unfairness.
20. In summary:
21. The judge's questions need to be considered as a whole. It should not be forgotten that as already remarked they include at least one rebuke of the witness and a variety of only innocuous questions.
22. The questions as to the consequences flowing from planting the drugs serve to put the matter in context. They do not fall on the wrong side of the line as summarised in Archbold. They do not in any way remove the issue from the jury. It remained for the jury to consider both the questions and the answers and the evidence as a whole to which the judge returned entirely fairly in his summing-up.
23. The questions as to the sequence of events and whether PS Heath was left alone with the car were proper; that the answers to those questions did not assist the defendant is of course neither here nor there. It remained, as outlined by counsel for the Crown in his written submissions, for the jury to consider the evidence of this issue as a whole and with the benefit of a fair and full summing-up.
24. Granted that the timing of the intervention was at a sensitive stage in the case, nonetheless this was a four or five day case. Counsel, Mr Long, was not deterred from continuing with his cross-examination on the Monday and the case continued until its conclusion on the Wednesday. The matter must be seen in perspective.
25. We emphasise the need for caution in this area and before judges embark on sustained questioning in the course of counsel's cross-examination. That said, we are satisfied that there was here no unfairness and that the intervention by the judge did not affect the safety of the conviction. In the event, and for the reasons given, this appeal must be dismissed.