England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		6th June 2007

1. Lord Justice Toulson: On 29th September 2006, at the Inner London Crown Court before His Honour Judge Wakefield, the appellant was convicted on count 1 of possessing a class A controlled drug with intent to supply and on count 2 of simple possession of a class A controlled drug. On count 2 he had been charged with possession with intent to supply, but the jury convicted him of the alternative lesser offence. On 1st December 2006 he was sentenced to four years' imprisonment on count 1 and no separate penalty was imposed on count 2.
2. He appeals against his conviction on count 1 by leave of the single judge.
3. The prosecution resulted from a police search of premises in Peckham occupied by the appellant, his partner, Jade Dupres, and their children. His partner was also charged with him but she was acquitted of all charges on the direction of the judge.
4. In the course of the search the police found 61 grammes of ecstasy powder divided into three bags, which had a street value of approximately £1,800, and five ecstasy pills in a purse. The ecstasy powder was the subject of count 1 and the ecstasy pills the subject of count 2. Also found in the flat were a number of other items on which the prosecution relied. A sum in excess of £3,000 was found in three separate amounts in different places around the flat: approximately £1,400 was found inside a black tube on the top of the kitchen fridge, £1,200 was found in a blue plastic carrier bag inside a jacket hung on the back of the kitchen door, and another quantity of cash was found under clothing in the bedroom. A set of electronic scales was recovered from the kitchen. Some clear plastic bags were recovered from the bathroom.
5. The police also found a number of mini-video discs with home video footage of the appellant in Barcelona, Amsterdam and Canada. One of the films showed the appellant and a friend in a hotel room in Montreal. The appellant was shown holding a large sum of Canadian dollars which he brandished in front of the camera. Another sequence of footage showed the same people in a hotel room in Amsterdam and there was banter about the amount of money which the appellant had spent in a short time.
6. The prosecution case, in short, was that the appellant was in possession of the ecstasy powder and tablets with intent to supply. They relied in support of this case not merely on the quantity of the drugs but the drugs paraphernalia in the flat and the video evidence suggesting a high lifestyle.
7. The appellant's case was that the drugs were for his own personal use and that his foreign travel was paid for by a friend, Mr St John, who was a musical artist. The appellant used to accompany him on his trips to help him and get the audience warmed up.
8. There are three grounds of appeal. Ground 1 is that the judge erred in failing to direct the jury to ignore the lifestyle evidence of the videos after the Crown conceded that they no longer contended that it was evidence of the proceeds of drug dealing.
9. Unfortunately, the tape recording of the trial has been mislaid and so we do not have a full transcript of the proceedings. However, counsel have prepared an agreed note. We are grateful to them for that and we treat it as accurate.
10. They also agreed on what happened so far as this aspect of the case is concerned. The judge having ruled that the video evidence was admissible, evidence was given by the appellant and also by Mr St John to explain the content of the videos. In short, their evidence was that the trips were not paid for by the appellant, nor was the money shown in the videos his money. The prosecution probed that evidence in cross-examination without putting it to either witness in direct terms that the money in the video was drugs money.
11. Before closing speeches Mr Johnston, on behalf of the appellant, submitted that the judge should in his summing-up direct the jury to disregard the video evidence, because the prosecution had not put it in terms that the money shown in the films had anything to do with drugs.
12. Mr Phelvin, for the prosecution, did not oppose that submission. He took the view that he had far stronger points to make on behalf of the prosecution and did not wish to complicate the case by seeking to persuade the jury that the appellant and Mr St John's evidence about the videos should be disbelieved. That was no doubt sensible advocacy. There is always a great deal to be said for concentrating on the main points in a case.
13. The judge did not give a specific indication at that stage how he intended to deal with the matter, but both counsel understood, because Mr Johnston's submission had been unopposed, that the judge would direct the jury as he had requested. Certainly the judge gave no contrary indication. Accordingly, Mr Johnston addressed the jury in his closing speech on that assumption. He made some reference to the video evidence and to Mr St John's evidence, but not at length.
14. In his summing-up the judge, according to the agreed note of counsel, said as follows:

"The prosecution put before you evidence of lifestyle, home videos in various locations, Barcelona Amsterdam and Montreal. The prosecution say that he's only able to live if he has another other source of income, not on social security. Given that he has drugs you can draw the conclusion that he could not have enjoyed that except with an income from selling drugs. His expenses are paid. It's for you to decide if you accept the evidence that the defendant does get all his expenses paid. Is he able to do this? Or, whether it is only because he does it from his own income -- the sale of drugs."

15. The judge was unable to conclude his summing-up on the day that he started it, so after the jury had been sent home Mr Johnston raised the point and asked the judge to indicate to the jury that it was indeed now accepted, and conceded by the prosecution, that no reliance was to be put on the video evidence. The judge indicated that he saw the point and would come back to it the following day.
16. In the event, the judge on the following day did come back to the subject, but did not direct the jury to disregard the evidence. It appears from a further exchange between the judge and counsel that the judge took the view on further consideration that the evidence was before the jury and that it must ultimately be for the jury to determine what they made of it. He should not direct that they ignore such evidence merely because of a concession on the part of the prosecution.
17. We accept that in these circumstances there was a material irregularity. If the judge intended to take that approach, then he ought to have given that indication when the issue was raised by Mr Johnston before closing speeches. Mr Johnston's address to the jury would then have taken a rather different course. It is unnecessary to decide whether the judge could properly have adopted the position which he ultimately did, although we see the force of the judge's position that when a jury has heard relevant and admissible evidence it is for the jury to assess it. Indeed, a standard part of every direction is to tell the jury that it is for them to assess the evidence and decide what witnesses they believe and which witnesses they disbelieve. But we have no doubt that there is validity in the point taken that if the judge was going to take that position counsel needed to know when the point was first raised with him, rather than learn of it during the summing-up, having proceeded until then on a mistaken understanding about how the matter was going to be left to the jury.
18. The second ground of appeal is that the judge failed properly to direct the jury on the use that they could make of cash found at the appellant's flat, in that he said that they had to find that the money was evidence of drug dealing, whereas he should have directed them that it must be evidence not just of past dealing but of continuing dealing.
19. Reliance is placed on the case of Grant [1996] 1 Cr App R 73. In that case the defendant was charged with possession of a class A drug with intent to supply. He was arrested in the street. He had on him a quantity of crack cocaine and over £900 in cash. His explanation for the possession of the money was that he had been intending to buy a secondhand car, which he had seen advertised. Some of the money came from his mother and some came from savings. He had started out that day with a larger sum of money on him but after test driving the car he decided against buying it. However he then, opportunistically, used part of the money to stock himself up with cocaine for his own use. That was how it came about that he had a quantity of cocaine and a substantial sum of cash on him at the time when he had the misfortune to be arrested. The judge in his summing-up said nothing to the jury about how to approach the evidence of possession of the money.
20. Lord Taylor CJ, giving the judgment of the court, said at page 78:

"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 were any possibility of the money being in the accused's 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 ongoing 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."

21. It is not clear from the judgment whether there was anything in the evidence in that case which might have suggested that the possession of the money was of no more than historic relevance.
22. In this case the jury was told by the judge that possession of the money in the flat could only be probative of intent to supply if they could see no other explanation than that he was a drug dealer, and that before reaching such a conclusion they must consider the explanation given by him. That direction went to the heart of the matter. The judge went on to remind the jury of the explanation which this appellant gave for his possession of the money. His explanation was that the greater part of it came from his mother, and she gave evidence in support of that account.
23. The criticism made is that the judge should have gone on to say that, even if they were satisfied that the money was the result of dealing in drugs, they could not treat it as evidence of a current intent to supply unless satisfied that the presence of the money indicated not merely past dealing but that the appellant was an ongoing drugs dealer. The reason why a drugs dealer will often have significant quantities of cash is two-fold. He will have obtained the money from sales and intend to use it for purchases. That is the nature of being a drug dealer, as would be obvious to any jury. Logically, the more recent the sales, the stronger will be the case that he is a drug dealer and not merely an ex-drug dealer. In this case there was no positive evidence as to the date of any prior sales. There was no suggestion from the appellant that this money was of historic origin. Quite the reverse. His case was that he had come by it recently, albeit from a source which the jury must have rejected.
24. In these particular circumstances, we do not think that it was incumbent on the judge to complicate or lengthen his direction by giving them a specific direction that they needed to consider, if they were satisfied that the money simply came from the sale of drugs, whether it was more than merely past behaviour of an ex-drug dealer.
25. There is a further relevant factor raised by the court in argument but on which we have not heard detailed submissions. Grant was decided long before the Criminal Justice Act 2003. Under the bad character provisions of that Act, conduct showing that a defendant had supplied drugs in the past would be admissible as going to show propensity. If the jury is satisfied that the true explanation for the presence of money on a defendant at the time of his arrest is that it represents the proceeds of drug dealing, the distinction between treating it (a) as evidence that he is a drug dealer, or (b) as evidence that he has dealt in drugs and has a propensity to do so, is fine. In many cases it would be a distinction without a practical difference. As at present advised, we think, generally speaking, that it would be needlessly complicating for a judge to have to explore such a distinction in giving directions to a jury. There would also be something highly artificial in the prosecution having to make an application under the Criminal Justice Act for the admission of such evidence as going to show propensity when the evidence is already admissible.
26. In this particular case, given that the appellant's own case was that he had received the money recently, and that there was no suggestion that it came from some purely historic transaction, the real issue for the jury in relation to the money at the flat was whether they accepted that his explanation might be true, or could think of any other plausible explanation apart from his being a drug dealer. That issue was put to the jury squarely by the judge.
27. Assuming that they were satisfied that the prosecution was right on that issue, the mere fact that he was a drug dealer, or had a propensity to deal in drugs, would not necessarily lead to the conclusion that the particular drugs in his possession were for supply rather than for his personal use, but the jury were plainly aware of that, as was demonstrated by the fact that they convicted the appellant on count 1 of possession with intent to supply and on count 2 of simple possession. Accordingly, although Mr Phelvin for the prosecution initially conceded that there had been a misdirection and that the second ground of appeal was well founded, we are not so persuaded.
28. The third ground of appeal is that the judge failed to refer adequately to the appellant's case in the summing-up in a number of respects. In particular, he failed to remind them in detail of the evidence given by the appellant's mother about the money at the flat, or by Mr St John about the funding of foreign trips, or by the appellant himself about some of his musical earnings.
29. As to the evidence of Mr St John, the judge did refer to that, although quite shortly according to the note of the summing-up prepared by counsel. As to the money in the flat, the judge reminded the jury what the appellant's case was and referred to his and his mother's evidence, but again without going into detail according to the summary which we have. As to the appellant's musical earnings, the judge referred to the appellant's evidence that he had some income from the music industry without, again, going into details of the matter.
30. What was required of the judge was that he should indicate to the jury what the issues were, to outline the case presented by both sides in its essentials and to do so in an even-handed manner. It was not incumbent on him to go into every point of detail. We are unpersuaded that there is any substance in this ground of appeal.
31. We come then to the question of the safety of the conviction in the light of the fact that we have accepted the criticism made under the first ground of appeal. In giving leave to appeal the single judge warned the appellant:

"... you should be prepared to hear that the case against you was so strong that the conviction is not unsafe even if the summing-up were defective."

32. The case was indeed a very strong one. The quantity of ecstasy powder, its division into bags, the electronic scales, the other clear plastic bags and the quantity of cash, when taken together pointed very powerfully towards an intent to supply, regardless of the video evidence. We share the view tentatively expressed by the single judge. We add that we would be of the same view even if there was technically a misdirection in relation to the second ground of appeal, by the judge failing to direct the jury in explicit terms that they must be satisfied that the money in the flat pointed towards the appellant being a current drug dealer before they could attach any significance to it.
33. We are not persuaded that this conviction is unsafe. Accordingly the appeal is dismissed.