England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Friday 23 September 2011

1. LORD JUSTICE RICHARDS: On 13th January 2011 in the Crown Court at Snaresbrook, after a trial before His Honour Judge Lamb QC and a jury, this appellant was convicted by a majority of 11 to 1 of possessing a class B drug, namely cannabis, with intent and possessing criminal property. He was sentenced on the first count to six months' imprisonment and on the second to three months' imprisonment concurrent. He appeals with leave of the full court against his conviction.
2. The charges arose out of the execution of a search warrant at the appellant's home in the early hours of the morning of 4th July 2009. On an initial search carried out with the assistance of a trained police dog no drugs were found but a total of £3,500 cash was found in the bedroom. The appellant told the officers that he sold "stuff, watches, chains, air purifiers" and that he had received loans of money over a period of two to three years.
3. The police then conducted a second search during which they found some 76 grams of cannabis together with electronic scales and self-sealing bags in a black plastic bag in a waste bin in the kitchen. The appellant told the officers that he did not know about the cannabis and upon arrest and caution he said: "You've planted the drugs. The money is mine." He maintained this line in interview. Subsequent police enquiries confirmed that he had received a total of £2,600 cash in loans prior to the time of the search.
4. The prosecution case at trial was that the cannabis belonged to the appellant and he intended to supply it. The drugs and related items were not planted by the police. The cash was the proceeds of drug dealing.
5. The defence case was that the appellant knew nothing about the drugs or related items and never saw them in the flat and that the police had planted them. The money was from a number of cash loans. The appellant himself gave evidence in support of that defence case.
6. The issues in the appeal relate to the admission into evidence of certain of the appellant's previous convictions. He had been convicted in May 1993 of three offences of possessing a controlled drug with intent to supply. He had also been convicted in 1996, 1999, 2004 and 2009 of offences of simple possession of cannabis. At the start of the trial the prosecution applied to adduce all those convictions in evidence pursuant to section 101(1)(g) of the Criminal Justice Act 2003 on the basis that the appellant had made an attack on the officers' character by alleging that they had planted these drugs.
7. The defence took objection to the application only in so far as it related to the 1993 convictions for possession with intent. The other convictions were going to be admitted by consent in any event since it was anticipated that, for reasons we need not go into, the appellant would wish to refer to them in the course of his own evidence.
8. The judge was invited to exclude the 1993 convictions pursuant to section 101(3) on the ground that the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. It was submitted that there was a clear danger that the jury would use the convictions as evidence of a propensity to deal in drugs, whereas the rationale relied on for their admission was to permit the jury to gauge the appellant's credibility having regard to his attack on the character of the police.
9. In his ruling the judge allowed the prosecution to adduce the 1993 convictions. He indicated that any potential that the jury might use them as evidence of propensity could be dealt with by an appropriate direction to the jury.
10. The first ground of appeal on which the full court granted leave is that the judge erred in allowing those convictions into evidence in the first place. The argument is developed as follows. It is said that where a defendant has made an attack on another person's character the purpose of admitting the defendant's own bad character is that the jury have before them material on which they can form a judgment on whether the defendant is any more worthy of belief than the person or persons he has attacked - see the authorities considered in R v Trevor C [2011] EWCA Crim 939 at paragraphs 27 to 33, which we think it unnecessary to set out. It is submitted that in this case there was no need for the 1993 convictions to be admitted in evidence since there was ample material without them upon which the prosecution could rely in support of the contention that the appellant was unworthy of belief. The admission of further drug-related convictions added little, yet had a huge potential to prejudice the appellant's case. They should have been allowed in only if the rationale for admission could not be furthered without them, which was not the position here.
11. The strands are pulled together very clearly in the judgment of the full court granting leave to appeal on this ground:

"... we consider that it is arguable that since the rationale for admitting the previous convictions, namely to balance and to counter the attack by the applicant on the police, was amply satisfied by admitting the pure possession offences, the added rationale for admitting the 1993 convictions of possession with intent to supply was so clearly outweighed by the risk of prejudice to the applicant as to be one that the judge could not reasonably have reached."

We are invited in effect on the appellant's behalf to find that the point is not merely arguable but is well-founded.

12. The second ground on which leave was granted, although it was not a ground articulated in the original written application, concerns the directions in due course given by the judge in relation to the 1993 convictions. He dealt with them together with the issue of lies. Having given a short direction specifically about lies, making the point that the fact that the defendant has lied does not mean that he is automatically guilty of the offence with which he is charged, and after giving certain examples, the judge continued:

"It is the same as convictions. You heard from officer Tu about the defendant's previous troubles with cannabis and then the defendant went into the witness box and he told you about his previous robbery and his prison sentence. Again, just because a great train robber has served time for stealing the mail does not automatically make him a drug dealer. Do you all follow that? Yes.

It is the same logic which applies to the defendant's previous convictions for possessing cannabis with intent to supply because you know he was convicted of that in 1993, but what he did in 1993 does not make him necessarily a drug dealer in 2009, not automatically. But his previous convictions -- but his lies -- are matters which you will want to weigh up when you are considering allegations against the police. So, in summary, lies and previous convictions do not prove guilt, but they are something that you can take into account."

13. The submission made is that that direction fails sufficiently to ensure that the jury would consider the 1993 convictions only in the context of credibility, in relation to the attack on the character of the police, and not as evidence of propensity to engage in drug dealing. The judge had stated correctly in his initial ruling on admissibility that the convictions should be related to the specific head under which they were admitted, but he failed to give effect to this in his ultimate directions. It is said that there was a critical need to demarcate very clearly the purpose for which the convictions had been admitted in evidence, given that the 1993 offences were of exactly the same kind as the matter before the jury. To tell the jury that the 1993 convictions did not automatically or necessarily make the appellant a drug dealer in 2009 did not avoid the real risk of prejudice. The danger that the jury would consider them in relation to propensity was further compounded by the judge directing them that lies and the previous convictions could be taken into account in deciding whether guilt was proved. The effect, so the submission goes, is that the jury were erroneously given a discretion to regard the 1993 convictions as relevant to propensity to engage in drug dealing.
14. We have set out both grounds and the submissions on them because there is a close relationship between them and it is convenient to deal with them together. To some extent we share the concerns evident in the grant of leave about the judge's decision to allow the 1993 convictions to be admitted in evidence in the first place. They were not relied on as evidence of propensity and in the circumstances they could not reasonably have been relied on as such. But there was a clear and considerable risk of the jury treating them as such once the jury knew about them. They were certainly relevant to the purpose for which they were sought to be admitted under gateway (g), that is on the question whether the appellant was more worthy of belief than the officers whose character he had attacked, but we see the force of the argument that that purpose was adequately furthered by the admission of the convictions of simple possession (as to which there was no issue) and it was not necessary to achieve the purpose for the 1993 convictions to be admitted as well. There is force in the argument that the prejudicial effect of the 1993 convictions was liable to outweigh their probative value on the issue for which they were to be admitted.
15. It may be, however, that the prejudicial effect could have been reduced to an acceptable level, so as to make it appropriate for these convictions to be admitted in evidence, by sufficiently clear and strong directions to the jury. That is the course that the judge appeared to have in mind at the time of his initial ruling. Unfortunately, the directions actually given by him in his summing-up did not have that effect. They did not direct the jury in clear terms as to the limited purpose for which the evidence of the 1993 convictions was before them or that they were not to treat those convictions as evidence of a propensity to deal in drugs. On the contrary, the rather loose terms in which the directions were expressed left it very much open to the jury to use them in that impermissible way.
16. Having regard to those considerations, we are satisfied that the 1993 convictions, even if properly admitted in evidence in the first place, should have been the subject of a much clearer and stronger direction than was actually given in relation to them and that there was a serious error in the judge's summing-up by his failure to give such a direction.
17. It is necessary to consider whether this error had an effect on the safety of the conviction. At first sight the case against the appellant might be thought to have been evidentially very strong. Mr Groves, however, has drawn our attention to a number of features of the case which in his submission made the case a finely balanced one, despite the nature of the defence advanced. He points out that the drugs were not detected on the initial search by trained police dogs. Following their location on the second search they was said to have been seized by one named officer, but the search book recorded them as having been seized by a different officer. The bag in which they were placed had a seal number indicating that it came from an altogether different batch from the other exhibits in the case. The original search book could not be produced. The page that would have recorded all the officers present at the search was missing, so that it was not possible to establish definitively which officers were present. Also missing were computer aided dispatch recordings related to the preparation of the search and the search itself, which again would have indicated who precisely was present during the search. Those and other points were relied on by the defence. The judge in the course of his summing-up set out 16 numbered points referred to in the course of the defence closing speech.
18. Mr Groves also reminds us that the verdict ultimately reached by the jury was reached by a majority and not unanimously.
19. Taking all those matters into account, we have come to the conclusion that there must in this case be a real possibility that the jury were inappropriately influenced by the 1993 convictions into reaching their verdict. We cannot be satisfied that the error to which we have referred had no effect on the outcome. For those reasons, we have reached the conclusion that the appeal must be allowed and the convictions must be quashed. Is there any further application?
20. MR GROVES: My Lord, I do not seek any.
21. LORD JUSTICE RICHARDS: Thank you very much.
22. MR GREGORY: No retrial is sought.
23. LORD JUSTICE RICHARDS: The appellant is in custody for other matters?
24. MR GROVES: He is in custody in respect of other matters.
25. LORD JUSTICE RICHARDS: Then no question of discharge arises.
26. MR GROVES: No, the sentence in this case is served.
27. LORD JUSTICE RICHARDS: Thank you very much.