England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BRADFORD
His Honour Judge McCallum

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/02/2011

MR JUSTICE KING :

1. On the 9 of February 2010 in the Crown Court at Bradford before HHJ McCallum this Applicant was convicted after trial on four counts. On the first count he stood his trial with two co-accused, Joseph Housen and Andrew Bullocks, each of whom was also convicted.
2. Counts 1 and 2 each alleged a conspiracy to possess a Class A controlled drug with intent to supply. Two of the conspirators, two brothers from Bradford, referred to as the Islam brothers, had pleaded guilty to these conspiracies (one brother to both; one brother to one) on an earlier occasion. The Applicant was an associate of the brothers and also from Bradford. The prosecution's overall case was that the Applicant conspired with the brothers to purchase wholesale cocaine and heroin sourced from London. Count 1 concerned an exchange or attempted exchange of drugs in early July 2008 in which vehicles containing some of the Applicant's alleged co–conspirators, including the two co-accused, met up in Bradford. Count 2 concerned an exchange of drugs at a meeting later in July between the Applicant's alleged co-conspirators again in Bradford. The Crown relied upon evidence of telephone traffic between the Applicant and his co–conspirators and evidence of the Applicant's presence at the meeting places to establish his involvement on each count.
3. Counts 3 and 4 each alleged possession of criminal property. They related to bundles of cash found in the Applicant's house in Bradford in September 2008 during a search following his arrest. Count 3 concerned the cash found in the bedroom and under a sink basin. There was expert evidence that this cash was abnormally contaminated with cannabis. Count 4 concerned cash from within a cushion in the living room. The expert evidence was that this was abnormally contaminated with heroin. In total the cash found amounted to approximately £18,000. The Crown relied upon the circumstances in which the cash was found and the expert evidence to show that the cash was the proceeds of drug dealing.
4. This now comes before us as a renewed application for leave to appeal against conviction following refusal by the single judge. The Applicant was represented at his trial by two junior counsel. The application before us was pursued by Miss Nieto, acting pro bono. Miss Nieto was the junior of the two counsel at the trial, she being led by Mr Lally. It was Mr Lally who drafted the application for leave and the eight grounds of appeal attached to the application.

The transcript concerning the alleged behaviour of the jury

5. Following the hearing on the 13^th of December 2010 we reserved judgment in order that a transcript be obtained of the proceedings in the Crown Court when the court dealt with a matter concerning the jury in respect of which it appeared from Mr Lally's lengthy skeleton argument that a ground of appeal was now being sought to be raised. The allegation was there being made that a member of the jury had during the currency of the trial been following or "stalking" the Applicant and his legal team and that he had followed them to a fish and chip restaurant where he had sat behind their table listening into their discussions. This was said to be possible misconduct. Objection was taken in Mr Lally's argument (although not incorporated into any ground of appeal) to the manner in which the Judge had dealt with this matter by, we were told, simply asking the jury in open court whether "anyone heard anything of concern at a particular fish and chip restaurant", and upon receiving a negative response, taking the matter no further.
6. The order we made was that before Judgment was given, counsel should have seven days from receipt of the transcript in which to lodge any further submissions.
7. In the event the transcript was obtained and sent to Counsel on the 10^th of January 2011 but no further submissions have been lodged notwithstanding that, we understand, a further reminder was sent to Counsel on the 24^th of January.
8. We have ourselves now read the material transcript from which it is clear that there is nothing in the point now being sought to be raised.
9. The question put to the jury was in these terms:

"The second matter is this, is that you all, kindly, well six of you sent me notes about concerns about coming and going from the building. It is rather unfortunate that everybody comes in and out of the same door, unfortunately that is the geography of the system. But, most importantly is this, and I just want you to reflect upon this, I do not actually want you to blurt out anything, I just want an answer yes or no to this. Did any of you yesterday hear anything said by anyone outside this Court, or more particularly in a fish and chip restaurant which caused you concern? Nobody? None at all. Well we have spent quite a long time this morning...– nobody has overheard any of the Defendants saying anything outside which they regarded in any way offensive? Good."


10. It is clear from the transcript of the proceedings in chambers when this matter was discussed at some length between counsel and judge, that the issue being dealt with by the Judge in the question he put to the jury was not whether a juror had been stalking the Applicant at all but rather whether a member of the jury might, while in a particular public restaurant, have inadvertently overheard an offensive remark being made by the Applicant about a member of the jury. Far from being raised by counsel on behalf of the Applicant, the matter was in fact raised by counsel on behalf of one of the co-accused who drew the court's attention to that which he understood counsel for the Applicant had passed on to him about events in the restaurant.
11. We can see nothing wrong with the way in which the Judge dealt with this particular matter. At the end of this part of the proceedings the Judge is recorded as saying that this "was all a storm in a teacup" and Mr Lally is recorded as saying "well, it is the way when things are taken out of context." We say no more about this issue.

The remaining grounds of appeal

12. We turn to the eight grounds of appeal which did appear within the Notice of Application. Of those eight, those appearing as grounds 3 to 8, were abandoned by Miss Nieto at the outset of the hearing before us. It is to be deprecated that this was the first notice the court had received of their abandonment. The valuable time wasted by the members of this court in coming to terms with the grounds now abandoned, has been considerable. It is further to be deprecated that within those grounds now abandoned were grounds wholly lacking in particularity, such as the one asserting that the summing up had not been impartial and was unfair.
13. Only two grounds were pursued before us. Like the single judge we can discern no arguable substance in either of them.

Severance

14. The first concerns severance. It is said the Judge was wrong not to have severed the indictment so as to sever Counts 3 and 4, the counts alleging possession of criminal property, from the two conspiracy counts. It is said that the two sets of counts could not fairly be said to be connected, yet the evidence on the second set was highly prejudicial to the defendant's case on the first. We see nothing in this argument which at times appeared to be raising arguments more properly going to the question of joinder as to which no ground of appeal has been formulated. We agree entirely with the observations of the single judge that the Judge properly exercised his discretion not to order severance. There can be no question here of any misjoinder and we can discern no arguable error in the Judge's conclusion that with appropriate directions to the jury, the Applicant would have the benefit of a fair trial on the indictment as it stood. The argument that the evidence on Counts 3 and 4 ought to have been excluded under section 78 of the Police and Criminal Evidence Act 1984 makes no sense once the position is reached that the Judge properly exercised his discretion on severance.

The jury notes

15. The other ground relates to notes sent by six members of the jury to the Judge during the second week of the three week trial, referred to by the judge in the passage which we have already set out. The Judge interpreted these notes as meaning no more than that the jury were concerned that they had to enter and leave the court building by the same route as the defendants, that they felt uncomfortable on the occasions when they had in fact seen the defendants, and that they were merely exhibiting an obvious desire to be kept separate from the defendants at all times. He refused to discharge the jury and dealt with the problem by requiring the defendants to remain in court for a period after the jury had left. His only words to the jury on this matter were the words we have already set out.
16. Again we agree entirely with the single judge that the Judge was right to approach these notes in this way. We have studied the contents of these notes which are fully set out in the Judge's ruling refusing to discharge the jury. It is unnecessary to set them out in their entirety. One for example said "At the end of the day as I was leaving court I had Mr Romani outside the building and Mr Housen was behind me. Nothing has been said by either men, but I felt slightly worried. Perhaps the Defendants or the Jurors could be held back for 20 minutes". Another said: "When the verdict is reached and if there is a guilty verdict for any of the defendants, is it possible for the jury to leave the building by a separate entrance". The Judge in his ruling indicated that the word "if" in this latter note had been added later. We for ourselves see nothing in the suggestion which was also rejected by the Judge, that these notes meant that the jurors were likely to reach decisions based upon matters not aired in court by way of evidence or that they were exhibiting a bias or hostile animus against the defendants.
17. We agree with the single judge that the Judge's decision to require the defendants to remain in court for a period when the jury left, was in the circumstances entirely sensible but that there was no need to discharge the jury.
18. For all these reasons this application is dismissed.