England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		4th August 2010

1. LORD JUSTICE LAWS: On 25th September 2009 before His Honour Judge Goodin at the Ipswich Crown Court these appellants were convicted by the jury on an indictment containing a single count of conspiracy to supply a controlled drug of Class A, heroin. On 9th October 2009 they were both sentenced to six years' imprisonment less 323 days on remand (Evans) and 35 days (Sabbagh-Parry). This was a re-trial. Co-defendants, Ahmed and Yarney, had been acquitted at the first trial. The appellants now appeal against their conviction with the leave of the learned single judge.
2. In the late afternoon of 21st October 2008 the appellants were travelling in a hired Vauxhall Astra along Wherstead Road towards Ipswich town centre. Evans was driving. Sabbagh-Parry was in the front passenger seat. The co-defendants who were to be acquitted were in the back. All four of them were from Liverpool. They had driven that day from Liverpool to Ipswich.
3. PC Fletcher was on duty in a patrol car. He saw the Astra and noticed that the two rear seat passengers were not wearing seat belts. He stopped the Astra and pulled up behind it. PC Fletcher was to tell the jury that before getting out of the police car he had to activate certain lights and collect his equipment and hat from the footwell, giving ample opportunity for one of the occupants of the Astra to throw something out of the car without the police officer seeing him do so. PC Fletcher spoke to the driver, the appellant Evans and leaned into the car to speak to the other occupants. As he did so he noticed the smell of cannabis. He radioed for assistance. The three passengers gave him their details. It took about 15 minutes for other officers to arrive. At length, Acting Sergeant Horne and PC Ormes were at the scene. The occupants of the car were searched. Then, because the Astra was blocking the driveway of a residential property, the police car was moved forward by Sergeant Horne and the Astra likewise by PC Ormes. They were moved about two car lengths or five metres. Sergeant Horne then made a phone call to the car hire company to enquire about the Astra. He did so standing by the rear nearside of the police car. The occupants of the Astra were standing some little distance back on the pavement behind the Astra. Sergeant Horne finished his call and walked back towards the Astra. On the pavement, level with the front passenger door, he saw a clear plastic package about the size of a golf ball. It was clear, clean and dry and, given its position in the middle of the pavement, did not seem to have been there for any length of time. It contained 26 grams of a brown powder, 22 per cent of which turned out to be diamorphine or heroin. It was estimated to have a street value of some £2,500 or a wholesale value of some £500.
4. The Crown case at the re-trial was that the appellants had brought the drugs from Liverpool and proposed to sell them to drug dealers in Ipswich. The Astra was associated through a satellite navigation device which was in the car with two addresses at which, according to an officer who gave evidence to this effect, drug dealing was carried on. The officer accepted however that there might be many other areas in Ipswich which could also be regarded as drugs hot spots.
5. In interview Evans said they had gone to Ipswich to meet girls, and one young woman, Abigail Flahant, gave evidence for the defence that the appellants visited her in Ipswich. Sabbagh-Parry, in interview, told the police that he had hired the Astra and Evans was driving it.
6. Both appellants gave evidence putting forward innocent accounts of their trip to Ipswich and setting out what on any view was considerably more detail than they had given in interview.
7. Both appellants have convictions for supplying Class A drugs or possession with intent to supply. On 21st September 2009 the Crown applied to the judge to admit against Sabbagh-Parry evidence of convictions for possessing heroin and crack cocaine with intent to supply following his pleas of guilty at the Mold Crown Court on 24th January 2004 and also for possession of cannabis with intent to supply, to which he had pleaded guilty at the Liverpool Crown Court in 2009. The Crown applied also to admit as against Evans convictions in all for some six offences of possessing Class A drugs with intent to supply following his pleas of guilty at the Preston Crown Court on 26th March 2006.
8. The applications were made pursuant to section 111(1)(d) of the Criminal Justice Act 2003, in effect as showing a propensity on the part of the appellants to commit offences of the kind charged. The judge accepted (transcript Volume 1 23E-F) that the convictions indeed demonstrated such a propensity, noting that a common feature of the previous offences and the offence in hand was that the supply was effected away from the appellants' home town. He proceeded to direct himself (23H-24B) that the real question was that arising under section 111(3), namely whether the admission of the evidence would have such an effect on the fairness of the trial that the court ought not to admit it. He concluded that the offences should be admitted.
9. It is a principal ground of appeal raised by both appellants that the judge should have excluded the evidence of previous convictions. At the end of the Crown evidence both appellants submitted that there was no case to answer. The judge did not accede to the submission. Evans, but not Sabbagh-Parry, submits that he should have done. Lastly, both appellants complain of the adverse inference directions given by the judge pursuant to section 34 of the Criminal Justice and Public Order Act 1994.
10. The principal argument advanced by both appellants to assault the judge's admission of their previous convictions is relevant also to Evans's case relating to the no case submission. It is that the evidence of convictions merely bolstered what was in fact a weak case and where that is the position the evidence of bad character should not be adduced: see the leading case of Hanson [2005] 2 Cr App R 21. In those circumstances it seems to us the most logical course is to consider first the argument that the no case submission should have been accepted, even though that is a submission made by Evans only.
11. We turn then to that ground of appeal. Evans submits (see the grounds paragraph 56) that all the Crown have got, apart from the previous convictions, is the discovery of the drugs near the car and the fact that the car was being driven towards a drugs hot spot, and indeed there may have been other such hot spots in Ipswich. That is essentially the position taken this morning by Mr Baki for Evans in his oral address to us.
12. In our judgment, however, the argument understates the Crown's case. There was evidence to prove the following facts. First, when the car was stopped the police officers in attendance were unable to keep the car and its occupants under constant observation. Shortly afterwards just under an ounce of heroin was found a short distance from where the car was originally stopped. The package was clean and dry. It did not appear to have been trodden on, kicked about or to have been in its place for any length of time. The appellants had driven from Liverpool in a hired car. Between 10th and 21st October 2008 the car had made a number of trips from Liverpool to Ipswich and back. The car contained, as we have said, a Sat Nav device. That was not provided by the car hire company. The destination that was programmed into that device was at any rate one of Ipswich's drugs hot spots. It seems to us that these elements, together with the appellants' previous convictions, plainly made a case fit to go to the jury. We do not consider that the case was a weak one. Circumstantial certainly, but it is a commonplace that circumstantial evidence may be compelling. The judge was right to reject the no case submission.
13. Was the case however nevertheless weak, at least to the extent that it only depended on the admission of the previous convictions?
14. In Renda & Others [2006] 2 All ER 553, this court emphasised the primacy of the trial judge's role in making decisions of this kind under the Criminal Justice Act 2003. Essentially the trial judge's feel for the case is likely to be of the first importance. In this case we find it impossible to say that his decision to admit the convictions falls to be set aside here. Indeed, we consider it was fully justified.
15. We turn then to the section 34 directions. The part of the summing-up to the jury of which complaint is made is in the transcript of the summing at page 21G onwards. We read 21G-22E, though some reference was made by Mr Baki to a later passage:

"They were asked to give an account. Each of them before he was interviewed was cautioned. He was told that he did not have to say anything. It is his right, of course, to remain silent, but he was also told, each of them, that it might harm his defence if he did not mention, when he was questioned something that he later relied on in court, and of course, that anything he did say might be given in evidence.

Now, on 22nd October, of course, as now, each of these two defendants knew why he had come to Ipswich and whether or not the suspicions of the police were correct. Indeed, each of them has given you an account of what he was doing in Ipswich and why he was here, but when they were interviewed, apart from Mr Sabbagh-Parry confirming that he had hired the car, but that Mr Evans was driving it, and Mr Evans saying that their purpose in driving from Liverpool to Ipswich was girls, that apart, each of them made no comment to the questions put to him, so that with those two exceptions apart, the hiring of the car on the one hand and the girls on the other, neither of them said anything else about what he has told you from the witness box in this case."

16. The appellants submit that no such direction should have been given, first because the Crown case did not really call for an answer from either of them. Mr Price, for Sabbagh-Parry, referred this morning to the decision of the House of Lords Northern Irish case of Murray 97 Cr App R 151 and 160.
17. We do not agree with this submission. We have already ruled that there was more than a weak case here. We consider that the appellants might reasonably have been expected to explain such matters as the following when they were interviewed by the police. First, their knowledge of the other occupants in the car and their purpose in travelling from Ipswich. It is true that Evans had said that his own purpose in coming to Ipswich was to see girls. However he refused to name the girls in question or to tell the police where they lived. Next, their destination in Ipswich, with whom they were staying and for how long. Thirdly, the fact that the car was hired, the purpose for which the car was hired and the reason for adding Evans as a second named driver. It would have been reasonable for the appellants to mention all these matters when they were being questioned by the police officers. It is true, as the Crown accepts, and this engages the second point made by Mr Baki, that the trial judge did not or did not fully identify matters now relied on by the appellants with the precision commended in the standard direction as approved in Condron [1997] 1 Cr App R 185. Indeed, Mr Baki submits that section 34 was not engaged because in fact there were not really any matters which the appellants should reasonably have referred to in interview which were relied on by them later.
18. For the reasons given, we disagree. The summing-up could have been better done. The passage we have read is very sparse. The judge ought to have identified with some degree of particularisation the precise factual points relied on at trial by the defendants upon which they should have given some account to the police officers. However, the defect, if defect it be, is very far away from anything that might touch the safety of these convictions.
19. For all those reasons these appeals are dismissed.