England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		22nd October 2013

1. LORD JUSTICE PITCHFORD: This is an appeal against a conviction for an offence of possession of a controlled drug with intent to supply, leave for which has been granted by the single judge.
2. At 9.05 am on Wednesday 20th April 2011 police officers executed a search warrant issued by Greenwich Magistrates at 19 Bittern Court, London, SE8. At that time the appellant, who was the tenant of the flat, was not present. He had left the United Kingdom for Jamaica via New York on 14th April 2011 in order to attend a funeral and did not return until 16th May 2011.
3. Detective Constable Boucher searched a cupboard in the bedroom of the flat and inside the pocket of a jacket, admittedly belonging to the appellant, hanging in the wardrobe in the bedroom, Detective Constable Boucher recovered a triangular block of crack cocaine. On analysis it weighed 7.35 grams at a purity of 36%.
4. Rocks of crack cocaine sell in weights of 0.2 grams at £10 to £15 each. The drug recovered from the appellant's jacket pocket would have been enough to produce 37 rocks at a total street value of between £370 and £555. This was the evidence given by Detective Constable David Baxter who, by reason of his long experience of investigations into drug trafficking and supply was able to explain to the jury the implications of the find.
5. From a cupboard in the kitchen Detective Constable Boucher recovered a white chopping board on which he could see traces of a white powder. On analysis the chopping board was found to contain traces of cocaine. Police Constable Lewis recovered from the kitchen drawer a set of electronic weighing scales. When examined the scales were found to be contaminated with traces of cocaine. Officers recovered from a cupboard in the hallway a knife that appeared to bear traces of a white substance. No drug was found on the knife. Also recovered was a pair of latex gloves and two packets of clingfilm.
6. On his return to the United Kingdom the appellant was seen by appointment at Lewisham Police Station on Monday 23rd May 2011. He was arrested on suspicion of possession of the Class A drug crack cocaine. When interviewed about the findings made on 20th April the appellant had no comment to make except that he did not deal drugs and had been out of the country at the time of the search.
7. The appellant was represented by solicitors and counsel. They withdrew citing professional embarrassment. A second firm of solicitors and counsel were instructed. They too withdrew saying that they were professionally embarrassed. On 27th April 2012 His Honour Judge Byers, in view of the history of the matter, revoked the appellant's representation order and warned the appellant that nonetheless he must attend his trial in person. On 9th May the appellant appeared before Mr Recorder King for trial unrepresented. He was charged in the indictment with a single count of possession of crack cocaine with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act 1971.
8. Having ascertained the issues that would arise in the trial and having sought from the appellant an explanation as to what, if anything, had changed since the revocation of the representation order, the Recorder declined to re-open the issue of representation. Notable was the appellant's response to the Recorder's question: "What is it that has changed that should lead me to a review?" The appellant replied "My barrister. I will tell him exactly what I want and what he must do." This may or may not give some indication of the reasons for the professional embarrassment of previous representatives but the Recorder warned the appellant that he should not reveal his instructions to him, which were legally privileged.
9. There was before the court a defence statement. It must have been prepared at a time when the appellant was legally represented. In it the appellant said that he knew nothing of the drug or its other traces in the flat. A party had been held on 13th April 2011, attended by his then girlfriend, who he named and two male friends. He had provided them with a spare set of keys when he had left for Jamaica early on the following morning.
10. In evidence the appellant said that he had been badly let down by his friends with whom he had been unable to make contact since his return. The jury retired on 11th May 2012 and returned a verdict of guilty. On 8th June 2012 the appellant was sentenced to 3 years' imprisonment, with a direction that 28 days should count for the purposes of section 240 of the Criminal Justice Act 2003.
11. The single judge considered two grounds of appeal. He rejected the first ground that the Recorder should have acceded to the application for a further representation order. Realistically, this ground has not been renewed by Mr Williams. It would have no prospect of success.
12. The single judge granted leave on the second ground, namely that the judge misdirected the jury, first, by failing to leave to them the alternative verdict of simple possession of crack cocaine, and second, by failing to give to the jury any assistance upon the evidence that was capable of supporting the prosecution case that the appellant had an intention to supply the drug and of any limitations in that evidence.
13. The evidence in the trial had taken two days. Much of it was read. The first issue for the jury was whether the drug found in the flat was in the appellant's possession. The judge explained the prosecution's task as follows:

"As I have said, it is for the prosecution to prove the defendant's guilt, and each element of the indictment has to be proven. There are some about which you may have little need to dwell. For example, you have heard evidence in relation to the forensic analysis of the things that were found at Mr Johnson's flat, and certainly, the drugs were found, 7.35 grams of crack cocaine is a matter upon which you have heard the evidence from the expert. About which there was, you might think, very little in the way of challenge. And you may not necessarily be detained long in consideration of that. But it is for the prosecution to prove that Mr Johnson had those drugs in his possession, and it is for the prosecution to prove that he had them with the intention of supplying them to others. What does this mean? Well let me explain. Let me tell you what possession is."

The judge then explained to the jury, in terms about which there is no criticism, what was meant by possession. In connection with the issue of intent the Recorder said this:

"Of course, there are two other elements of the charge that I should deal with, and that is supply. Well what does supply mean? Supply means... passing on a thing to another person so that other person can do with it what they want. And what the prosecution's case here is, is that Mr Johnson was in possession of this triangular piece of crack cocaine with the intention of passing it on to others. And there is the third element that I wish to direct you on, intention. The prosecution must make you sure that Mr Johnson intended to supply this crack cocaine to somebody."

The Recorder said nothing about the evidence, if any, that was capable of supporting the prosecution case of an intention to supply. He did, in connection with the issues of knowledge, as it applied to the legal concept of possession, draw the jury's attention to the other articles found in the flat, which may, depending upon their view, assist them as to whether or not the appellant had knowledge and therefore possession of the crack cocaine in his jacket pocket.

14. Miss Williams has put forward the grounds with economy and focus. However, she was not present at trial and could not assist upon factual details that we considered to be of some importance. Mr Murray-Smith was counsel for the prosecution at trial but his notebook has been archived in storage and for some reason it has not been recovered.
15. Amongst our concerns are the following. First, there is no reference in the summing-up to any mention of the fact that the appellant had been representing himself. Mr Murray-Smith has no recollection whether at any stage the jury was addressed upon the need not to draw any adverse conclusion from the fact that he was unrepresented and to bear in mind that the presentation of one's own defence may present some difficulties for a defendant who was unqualified and inexperienced.
16. In R v De Oliveira 1997 Crim LR 600, Rose LJ, Latham J and Hooper J considered the position of a defendant who, unlike this appellant, insisted on representing himself. The court concluded that it was in general desirable for the judge to inform the jury that they should bear in mind the difficulty of presenting a defence properly. We would add that the task is not unfamiliar to this court of assisting an unrepresented defendant to focus upon issues and questions which are relevant to his defence.
17. Secondly, Mr Murray-Smith cannot help as to whether there was any discussion with the Recorder as to the desirability of adding a count of simple possession to the indictment as an alternative, or at least as to whether the alternative should be left to the jury in summing-up.
18. These matters were considered by the House of Lords in R v Coutts [2007] 1 Cr App R 6 and further by this court in R v Foster [2008] 1 Cr App R 38. In R v Hodson [2009] EWCA Crim 1590, this court (Keene LJ, Holman J and the Recorder of Nottingham) considered the question whether wounding, contrary to section 20 of the Offences Against the Person Act 1861, should have been left to the jury as an alternative to section 18 wounding with intent. At paragraphs 10 and 11 of his judgment on behalf of the court Keene LJ said:

"10.... There is no automatic requirement on a judge to leave an alternative verdict if such a verdict would not properly reflect the facts of the case, when judged realistically, or would not do justice to the gravity of the case. This court stressed [in Foster] that whether it is necessary to leave such a verdict, even when legally available as an alternative, will depend on the facts of the individual case. But if it is a realistically available verdict on the evidence, as an interpretation properly open to the jury, without trivialising the offending conduct, then it should be left.

11. It is, in our view, particularly important that this is done where the offence charged requires proof of a specific intent and the alternative offence does not. Even then there may be circumstances where the issue of specific intent does not truly arise... However, there will be cases, as Coutts recognised, where it is necessary to leave the lesser offence as an alternative to avoid the dangerous situation where the jury is faced with the stark choice of convicting for the serious offence or acquitting altogether. That may give rise to a miscarriage of justice."

19. We do not suggest any more than did the court in Hodson that every time a jury is considering a count of possession with intent to supply drugs it will be necessary to leave an alternative of simple possession. It depends on the circumstances and the assessment of the trial judge as to what is fair.
20. Here, we take the view that the alternative should have been left or, at the very least, the jury should have received assistance as to the evidence that was capable of establishing the intent. We are unaware what assistance was or was not provided to the appellant during the course of the prosecution case. This becomes relevant to the factual issues which arose or should have arisen on the expert evidence. Thirdly, we are not certain, as to whether the evidence of Detective Constable Baxter was given orally or was read. Mr Murray-Smith cannot recall. There appears to have been no evidence before the Crown Court as to what if anything was the significance of the fact that 37 rocks of crack cocaine could have been produced from the lump found in the appellant's pocket. Detective Constable Baxter gave evidence as an expert. One question left unanswered is the amount of crack cocaine that a drug user will habitually possess for his own use. We are unable to tell whether any exploration was made of these assertions by the expert during the course of Detective Constable Baxter's evidence. Fourthly it seems likely, although Mr Murray-Smith cannot recall, that the evidence of the analyst was read as agreed. The traces of substance found on the chopping board and the scales was not crack cocaine but cocaine. It is now common ground that they are different substances. Mr Murray-Smith cannot tell us whether the significance of this difference was explored at trial. It was certainly not a subject broached by the Recorder in his summing-up.
21. One conclusion available to the jury was that they could not safely depend upon the finding of those traces as any support for the assertion that the appellant possessed or intended to supply the crack cocaine in his pocket. Furthermore, the presence of a similar but different substance on the chopping board and scales may have provided some support for the appellant's account in evidence that others must have been responsible for drugs activity in his flat.
22. None of this seems to have been explored in the summing-up. Even if it had been explored in the course of evidence, which we doubt, there was no attempt at all to identify what may and what may not be evidence capable of supporting the prosecution case as to intent and no warning was given as to the possible limitations arising from Detective Constable Baxter's expert evidence.
23. We have had to consider the impact of these factors the safety of the verdict which the jury returned. In the result, we cannot be satisfied that the jury properly understood the limitations of the evidence advanced in support of the prosecution case as to possession and intent and in the absence of further assistance, both from the prosecution and the Recorder, it seems to us that this conviction cannot stand. For that reason the appeal is allowed and the conviction is squashed.
24. LORD JUSTICE PITCHFORD: We understand Mr Murray-Smith that the appellant has just about served his sentence?
25. MR MURRAY-SMITH: I gather it comes to its end in early November.
26. LORD JUSTICE PITCHFORD: Do you have any application to make?
27. MR MURRAY-SMITH: No.
28. LORD JUSTICE PITCHFORD: Thank you both.