England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		13th May 2008

1. LORD JUSTICE KEENE: This appeal raises, once again, issues about the admission of bad character evidence under the Criminal Justice Act 2003. It arises out of the conviction of the appellant on 13th March 2007 at Southampton Crown Court, before His Honour Judge Leigh QC, of three offences, namely, two counts of possession of a Class A drug with intent to supply and one count of dangerous driving. One of the drugs offences concerned cocaine, the other heroin. The appellant had previously pleaded guilty to driving while disqualified. He was sentenced to 6 years' imprisonment on each of the drugs offences to run concurrently with each other, to 12 months' imprisonment consecutive to the 6 years in respect of the dangerous driving and to 2 months' imprisonment concurrent for the driving while disqualified. That made a total of 7 years' imprisonment. He now appeals against conviction by leave of the Full Court, which adjourned to this court a renewed application in respect of sentence, that application having been initially refused by the Single Judge.
2. A co-accused, Paul Joseph Riley, pleaded guilty to both the drugs charges on the first day of trial and gave evidence for the Crown at the trial of the appellant. Riley was sentenced to four-and-a-half years' imprisonment by the same judge.
3. The charges arose out of events on the evening of 3rd October 2006. The police were keeping observation on an address in Lake Road, Southampton. The appellant was seen to arrive in his Metro car. He parked and was then seen to join Riley near a public house. After speaking briefly both of them went to Riley's car and got in, the appellant as the driver.
4. That car was then followed for some distance by several undercover police officers, in four or five unmarked cars. When Riley's car stopped at a red traffic light, one of the cars drove past and in front of it so as to block the road. There were other police cars to the rear and the offside but when police officers got out of their vehicles and approached Riley's car, the appellant drove towards one of the officers, who had to move rapidly out of the way. The appellant also knocked the front nearside of the police car, pushing it aside, so that Riley's car could get away. Those last circumstances gave rise to the charge of dangerous driving.
5. The police gave chase but after a while the car stopped and the appellant and Riley attempted to escape. They ran up an alleyway and Riley jumped over a wall, crossed a grass area and then leapt another wall at which point he was arrested. The appellant was arrested in the alleyway itself.
6. A search the next morning found drugs in the grassed area, not far from the wall to the alleyway. The drugs were found to be crack cocaine, with a total weight of just under 3.4 grams at 77 per cent purity and heroin to a total weight of just under 2.1 grams at 52 per cent purity. The appellant was found to have £395 in cash on him and Riley had some £460 in cash.
7. It was the prosecution case that the appellant and Riley had been involved in a joint enterprise to supply the drugs and that upon seeing the police the appellant had driven away in an attempt to escape. In interview the appellant said that he had driven at the police because he had not known they were police officers and he feared that he was about to be robbed. When he was questioned about the drugs, the appellant gave no comment responses. In his interview Riley denied any knowledge of the drugs.
8. In his evidence at trial Riley said that the drugs had belonged to the appellant and that the appellant had asked him to deal drugs with him.
9. The appellant's case at trial was that he had known nothing about the drugs and that he had driven as he had through fear of being robbed.
10. The issues for the jury consequently were whether the appellant had been in possession of the drugs, jointly with Riley, and if so, whether he had had the necessary intent, that is to say the intent to supply. It is to be noted that the first of those issues required the Crown to prove that the appellant knew of the presence of the drugs and knew that he was in possession of them. That was a necessity for a successful prosecution of the appellant (see the decision in R v Lambert [2002] 2 AC 545).
11. On the first day of the trial the prosecution sought leave from the judge to adduce in evidence a previous conviction of the appellant's, namely one on 20th September 2002, for importing Class A drugs, for which he had been sentenced to five-and-a-half years' imprisonment. The application was made under section 101(1)(d) of the 2003 Act, that is to say that the conviction was relevant to an important matter in issue between the defendant and the prosecution. This was put on two bases by the Crown: first, that it was relevant to the issue of whether the applicant had knowledge of the drugs, so as to be in possession of them, and secondly, that the conviction showed a propensity on his part to commit offences of this kind involving the supply of Class A drugs to others. That brought section 103(1)(a) of the 2003 Act into play.
12. At the time of the application by the prosecution the prosecution was in possession of somewhat limited details of the 2002 offence. At that stage it was known that it had involved the importation of Class A drugs at Heathrow airport on 23rd July 2002, and that the conviction was dated 20th September 2002, with the sentence to which I have referred being imposed. The prosecution indicated that it was prepared to assume, given the brief time span between the offence and conviction, that it was a guilty plea and counsel for the appellant confirmed that those were his instructions. So, as the judge recorded, that was not in dispute.
13. The prosecution had not given notice of this application before trial, as it should have done under the Criminal Procedure Rules, and it was not at the stage of this application in possession of any more detail about the circumstances of the 2002 offence. The defence opposed the application on a number of grounds, including both those matters to which I have just referred. It also challenged the justifications put forward by the Crown. As to the first, a connection between the appellant and drugs, it was said that the Crown had other evidence to show this. As to the second, propensity, it was argued before the judge that a single conviction of this kind was insufficient without some special characteristic to establish propensity. It was also submitted that without Riley's evidence the case against the appellant was not strong and so the application should fail on that basis. Riley had previous convictions including one for a drugs offence and the defence sought to know what pleas had been entered for previous offences apart from that one.
14. The judge, at this stage, indicated that he would not rule on the Crown's application until further information was forthcoming about Riley's convictions. Later that day the Crown were able to produce some more detail of Riley's previous convictions. In particular there was information that the drugs conviction was a plea of guilty to possession of heroin and cannabis, having originally been charged as an offence of possession with intent to supply.
15. The judge ruled in favour of the Crown, but made it clear that he wanted the Crown to try to obtain more details about the appellant's previous conviction and that in the meantime the conviction should not be put before the jury. In his ruling the judge referred to section 101(1)(d). He rejected the objection based on lack of notice by the Crown, found that the previous conviction was relevant to an issue in the case and found also that the Crown's case was sufficiently strong, without evidence of that conviction, for it to be just to admit it. On the issue of propensity, the judge referred to the leading case of R v Hanson [2005] 2 Cr App 21, [2005] EWCA Crim 824 and the need for particular caution where there is only one previous conviction. He then set out the three questions suggested in the decision in Hanson, and answered them in favour of the Crown. Finally, he applied his mind to section 78 of the Police and Criminal Evidence 1984, and concluded that he should not exclude the evidence under that provision because its admission would not have such and effect upon the fairness of the trial as to require its exclusion.
16. Subsequently during the prosecution case, a police officer gave some more evidence about the appellant's 2002 conviction. Detective Constable Bowen's evidence was in short that cocaine had been found in the appellant's luggage when he arrived at Heathrow. The appellant had admitted, in interview, that he had gone to Trinidad to smuggle drugs and had said in effect that he would not reveal the name of the person financing this because he had been threatened. Consequently the conviction from 2002 went before the jury.
17. The judge's ruling on that is now challenged by the appellant. On his behalf, Mr Baur takes a number of points. First, it is said that the Crown's application was not only out of time, but more to the point suffered from a fatal lack of detail. Serious unfairness was therefore caused to the appellant. Mr Baur acknowledges that the judge had a discretion to allow such an application, even though notice as required by the rules had not been given, and of course that is a proposition well established (see the decision in R v Musone [2007] EWCA Crim 1237).
18. But it is submitted on behalf of the appellant that that meant that insufficient detail was available about the previous conviction and that that lack of detail caused prejudice to the appellant. Mr Baur reminds us that investigations by the prosecution revealed that the relevant file held by Customs and Excise had been burnt in a fire, accidentally, and that the file that had once upon a time been possessed by Isleworth Crown Court had also been disposed of. He submits that it was important that full details were available of that previous offence and that the jury might have taken a different view of the significance of a conviction, if they had known that the appellant had been threatened and that had caused him to drop the defence of duress which he had been contemplating running. It is also said that that defence had been available to him because he imported the drugs from Trinidad because of a threat.
19. Some references has also been made to a comment made by the judge during argument that the appellant would be able to provide the information himself in more detail, and it is said that that was an error of law because it effectively removed the appellant's right of silence at trial. We can say straightaway that we do not propose to rule on that last aspect because that was not a point which formed any part of the judge's ruling as it turned out.
20. The thrust of the appellant's argument is that on propensity more information was required to establish that the previous offence was sufficiently similar. Mr Baur emphasises that this was only one conviction and it possessed no obvious similarities to the present offences with which the appellant was charged. Consequently it did not meet the requirements for admission on the basis of propensity.
21. As for the other ground for the admission of this evidence, the showing of connection between the appellant and Class A drugs, so as to rebut any suggestion of ignorance of their presence, it is submitted that it was unnecessary to allow in the previous conviction on that basis and to achieve that purpose. It is said that it was quite clear that the appellant was a Class A drugs user, and that there was also some other evidence to this effect in terms of contamination of certain articles associated with the appellant.
22. We consider, first of all, whether there was adequate detail of the previous conviction in 2002. We can see that it might have been preferable for the judge to have postponed making his ruling until the further evidence from Detective Constable Bowen had become available. Nonetheless he stayed any implementation of his ruling until then, thus giving himself and others the opportunity, if necessary, of revisiting this particular topic.
23. It seems to us that there was in fact very considerable detail available by the time Detective Constable Bowen had given evidence. For example, Detective Constable Bowen was in possession of a summary of the answers which the appellant had given at that time, in interview, about the importation of the drugs. We quote from part of the evidence given by Detective Constable Bowen on this aspect:

"During interview Colliard admitted that he had been given money for the drugs and also given the bags and his ticket purchased for him to travel to Trinidad for the specific purpose of smuggling drugs into the United Kingdom. Colliard did not reveal the name of the financier as he had been threatened. The reason given for doing this was that he had debts of £5,000."

24. That summary gives quite a substantial amount of detail about what the appellant was saying at that time about that offence of the importation of drugs. We note that it does not suggest that he brought the drugs into this country because of a threat, but rather to pay off a debt which he owed, though no doubt someone was putting pressure on him to repay that money. The threat that he was particularly concerned about seems to have been one that took place after the offence had been committed and was made principally to stop him identifying others who had been involved in that particular importation. We take the view that there was sufficient detail by the time that the evidence actually went before the jury for that 2002 conviction to be admitted on the bases which the judge accepted.
25. We deal with those bases, taking the drug connection aspect of it first. It seems this court that the arguments now raised really have no significant substance. The appellant had given a "no comment" interview. There was no defence case statement that had been served. At the stage when this application was made, it was unknown whether or not the appellant would give evidence. There were some formal admissions put in writing at trial but none of those showed any connection between the appellant and drugs.
26. It was critically important to the prosecution case, as we have indicated, that they should establish knowledge on the part of the appellant and consequently possession on his part of these drugs. His plea put that in issue. The prosecution had to rebut therefore a potential defence that the appellant was an innocent passenger in the car, who knew nothing of the drugs at that stage or thereafter. There is ample authority that a previous conviction is relevant to such an issue, not on the basis of propensity but on the footing that it is not credible that it was sheer coincidence that the defendant was in a car in which drugs were being carried (see the case of R v Willis, unreported, but a judgment of this court of 29th January 1979), and a number of cases cited in Archbold 2008 edition, at paragraphs 25 - 471 to 25 - 475. It, in our view, simply an illustration of the principle that evidence is admissible, if it is relevant to rebutting a defence or potential defence of innocent association, subject always of course to the question of fairness. On that basis, such evidence can come in under section 101(1)(d), without getting to the stage of the issue of propensity under section 103. The judge therefore was entitled to rule that this evidence was admissible on this basis. There was, as we have indicated, sufficient detail to show the appellant's connection with Class A drugs.
27. We turn to the question of propensity. At the time of the judge's ruling it was known that the previous offence concerned importation of Class A drugs, and that it was in effect accepted that he had pleaded guilty to that offence. It was also known that it was relatively recent, that is to say September 2002, approximately 4 years before the offence charged on the present indictment. It was said by the defence in argument that the appellant had been threatened and the subsequent evidence of Detective Constable Bowen confirmed, to a certain degree, that that had been the appellant's account of events, although not in connection with the commission of the offence itself. The sentence of five-and-a-half years passed on a plea, indicated that this was not the importation of a small amount of Class A drugs for personal use but was clearly intended to be passed onto others.
28. In the case of Hanson this Court specifically emphasised that there is no minimum number of convictions required to demonstrate propensity. In appropriate circumstances a single conviction will suffice. But it will depend upon all those circumstances, and on such factors as to how recent the previous conviction is. The court in Hanson at paragraph 9 deliberately stated that there do not have to be, in the previous common law language, "striking similarities" for a single conviction to have probative force.
29. We agree, as we do with the comments of the court in that case about the role of the Court of Appeal. At paragraph 15 in Hanson, [2005] EWCA Crim 2826, there appears this passage:

"If a judge has directed himself or herself correctly, this Court will be very slow to interfere with a ruling either as to admissibility or as to the consequences of noncompliance with the regulations for the giving of notice of intention to rely on bad character evidence. It will not interfere unless the judge's judgment as to the capacity of prior events to establish propensity is plainly wrong, or discretion has been exercised unreasonably in the Wednesbury sense."

That approach has been subsequently followed: see for example the case of R v Murphy [2006] EWCA Crim 3408, paragraph 14, where it was emphasised that the trial judge is to be allowed a certain latitude in making the judgment on propensity and the case also of Renda [2006] 1 Cr App R 24. Given the information available to him about the previous conviction, we take the view that the judge's ruling that it showed a propensity within the terms of section 103(1)(a) was one open to him on the facts of this case. It involved Class A drugs; they were intended for others; and it was relatively recent. The ruling was not clearly wrong.

30. There was ample evidence apart from that conviction to show guilt on the appellant's part: he drove off when the police arrived, albeit in unmarked cars, and then he ran off. The drugs were found in a place where he could have thrown them, and he was clearly implicated by the evidence of Riley: it was not unjust to admit this evidence. We conclude that the judge's ruling on the evidence of this previous conviction was not wrong in law.
31. Finally, we turn to a secondary string to Mr Baur's bow, namely arguments about the admission of the evidence of Riley. It is submitted that this was unfair because insufficient detail of his previous convictions, particularly the drugs conviction, were not available. Mr Baur argues that it was not known how the charge in that particular instance came to be reduced to one of simple possession of heroin. Riley's suspected involvement with the supply of Class A drugs might have led the jury to take a different view of his evidence if they had known that he had been suspected of more than mere possession.
32. This Court does not accept that the state of evidence about Riley's convictions made the admission of his evidence unfair or indeed the admission of the appellant's conviction unfair. Riley's convictions were known to the defence and to the jury. It was known that he had originally been charged with possession with intent to supply, but had pleaded guilty to simple possession. It would have been better, no doubt if more information could have been made available but it was open to the defence to explore the circumstances of Riley's offences when it came to cross-examination. Clearly he had a previous Class A drugs conviction and that gave the defence a certain amount of scope to weaken his testimony.
33. The judge had to make a judgment about fairness. We cannot see that his decision fell outside the scope of permissible decisions available to him. It follows that the appeal against conviction, as we indicated earlier, is dismissed.
34. We turn, therefore, to consider the renewed application in respect of sentence. We have already recounted the facts of these offences. The renewed application in respect of sentence challenges, first of all, the 6 years' imprisonment for the two drugs offences. It is argued that relatively small quantities were involved. In addition, Riley's plea of guilty was only entered at the trial on the first day thereof, yet he received a sentence of only four-and-a-half years for the drugs offences. Mr Baur submits that 6 years for the applicant (as he is on this) shows an unjustifiable disparity. It is also submitted that the 12 months' imprisonment consecutive for the dangerous driving was too long, and should in any event have been made concurrent. The applicant said that he thought he was being robbed and the judge proceeded to sentence on that basis. Moreover, the total of 7 years' imprisonment is also said to be manifestly excessive, and grounds of totality are therefore also advanced.
35. The applicant is aged 30. He has 13 previous offences, including one for a non-residential burglary in 1997, but there is no doubt that the most relevant conviction is the one to which we have already referred for the importation of Class A drugs. We note that the applicant was released from that sentence only some 15 months before committing the offences with which we are now dealing.
36. The amounts involved here were equivalent to about 3.7 grams of Class A drugs at 100 percent purity. The form in which they were found showed clearly that the appellant was involved in their distribution to others. There was of course no plea of guilty.
37. The guidelines in Aramah, which are well known, and also in Singh (1988) 10 Cr App R(S) 402, indicate that a minimum of 5 years in such a case will normally be appropriate where there is no plea of guilty. Given the applicant's record, 6 years in total for the drugs offences was, in our judgment, in no sense manifestly excessive. There is no unjustifiable disparity with his co-defendant. Riley had not merely pleaded guilty, albeit late, but gave evidence for the Crown. That, in our view, merited a substantial discount. The 12 months for dangerous driving, again in the absence of a plea, was a sentence open to the judge, and given its very different character from the drugs offences could properly be made consecutive. In any event, we are quite sure that the judge here would have been focussing on the total sentence to be passed for the total criminality on the part of this man, as we do also. We can see nothing manifestly excessive about the total of 7 years' imprisonment for all these offences when put together. In those circumstances, the renewed application in respect of sentence will be dismissed.