England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		14th May 2013

1. LORD JUSTICE DAVIS: On 27th September 2012, after a trial before a Recorder and a jury at the Crown Court at Aylesbury, the appellant was convicted of a count of possessing cannabis with intent to supply. In due course he was sentenced to a term of 12 months' imprisonment.
2. He appeals by leave of the single judge, limited to two particular grounds advanced. He also seeks to renew his application for leave to appeal on one further ground in respect of which the single judge refused leave, and also seeks to add yet a further ground to this appeal.
3. The background was, in a nutshell, that the prosecution case was that the appellant was a dealer and was in possession of cannabis with intent to supply to another. The defence case was that the cannabis was for his own personal use and it was not intended for supply to another.
4. Fleshing the facts out in a little more detail, they are, in summary, these. On 18th October 2011 officers from Thames Valley police force executed a search warrant at 104 Hampden Gardens in Aylesbury. The appellant and another man were asleep on two sofas in the lounge. There were altogether three men in the flat. A number of items were seized from the lounge. These included a small bag containing 0.5 grams of herbal cannabis, a grinder and three mobile telephones. Further, there was a black shoulder bag containing a plastic bag holding ten plastic re-sealable bags of herbal cannabis in a zipped pocket. That was found behind the sofa. The combined weight of the drugs was 13.24 drugs, with the amounts in the bags ranging from 1.21 grams to 1.49 grams.
5. In one of the bedrooms there were seized three mobile phones in the top right drawer of a cupboard and a set of digital scales in a plastic bag in another drawer. Further, a cannabis grinder containing traces of cannabis was found in a bedside cabinet.
6. In addition, two pieces of paper with written notes were found concealed under one of the legs of the bed. This contained a list of names and numbers, commonly described as a "deal list". The figures towards the bottom of the first page included entries prefaced by the capital letter "H" and then various large figures such as 25,300, 19,300, 13,300 and so on. Other figures on the list showed amounts in much smaller figures. The names on the list were similar to some of the names found in the contact list in the mobile phones that had been seized during the same search. A box secured by combination lock was found to contain a number of re-sealable bags.
7. The list in due course was forensically examined. It was found to contain the appellant's fingerprints, three being found on one page and two on the second page.
8. Some two months later, on 12th December 2011, police officers executed another search warrant at 18 Mandeville Road, Aylesbury, the home of the appellant's brother. Evidence was given that two men were in the house, not the appellant. In the third bedroom there was found a lockable case containing nearly £4,000 in cash and birthday cards addressed to "Rahim". There was also a green lockable money tin containing just over £13,200 in cash, and on top of the drawers a passport and driving licence in the name of the appellant. The overall total of the cash found was £17,160-odd.
9. At the trial expert evidence was given by a Mr Holme, who was employed by the Derbyshire Police Constabulary and who had very great and extensive experience in drugs matters, he having been in the Derbyshire Police and in the force's drugs squad for many years. He gave evidence, amongst other things, to the effect that cannabis was almost invariably nowadays sold as skunk cannabis and the amounts and sizes of the deals that might be expected. He gave evidence to the effect that a grinder was an item to be associated with a user and not a dealer. His evidence was also to the effect that he had never met an user who divided cannabis up into a number of bags such as those found in this particular case. He maintained that, although it was put to him in cross-examination that it was too sweeping a statement to say that users never sub-divided the bulk and that it might be easier when going out to take only as much as was needed. He was asked questions about the list that had been found and he gave evidence as to that, stating that the symbol "H" was often used as an abbreviation for heroin: it was not referring to cannabis in view of the higher values marked. He agreed that the figures used were well outside the range for a person street dealing in cannabis. Evidence was also given to the effect that the numbers on the mobile phones in some respects matched names on the list.
10. The appellant was interviewed on 18th October 2011. He was, amongst other things, to explain that he had been a cannabis user for around eight years and smoked around half an ounce of cannabis a month, for which he would pay about £45, which was home-grown. He used scales to weigh the cannabis and used the grinder for making spliffs and then split the drugs that he had bought into separate bags so that he knew how much he was smoking. His position was that he had never intended to supply any of the cannabis and he had thought that the empty bags had been found some time previously. He accepted that all the phones that had been seized were his: he said that two were old and were no longer used.
11. So far as the lists were concerned, he said that they were not his and he had not seen them. When he was re-interviewed on 20th March 2012 and was confronted with the fact that his fingerprints had been found on the lists, he said that he must have touched the lists briefly before putting it back in the bedroom. He also stated that the matches between the names on the lists and his mobile phone contacts were coincidental. He gave evidence to like effect. As to the amount of cash that had been found, he explained that his brother had purchased a BMW and then decided to sell it; he had assisted him in that sale and the cash seized represented cash payments totalling £17,000 towards the sale of the BMW, the first instalment having been paid out at around the beginning of November. He said he stored the money in a safe at Mandeville Road rather than Hampden Gardens since he thought it would be safer there. He produced receipts to support his case on this and evidence was given by the brother and another man to support his case on this.
12. The primary facts which the Crown relied on were not, apart from the conclusions or opinions of the expert Mr Holme, the subject of any real challenge by the defence at trial. The challenge was as to the inferences that could properly and safely be drawn from the primary facts as advanced by the Crown. There was no submission of no case to answer at the halfway stage.
13. The grounds of challenge for which leave to appeal was granted relate to a ruling of the Recorder at the outset of the trial. The defence had applied to have the evidence of the finding of the cash at 18 Mandeville Road excluded under the provisions of section 78 of the Police and Criminal Evidence Act. Application was also made to have the evidence of the finding of contents of the dealer's lists excluded under section 78. There was also sought to be excluded the evidence of Mr Holme as inadmissible, or at all events insofar as it related to the purchase and storage of Class B drugs and the habits of cannabis users and dealers, on the footing that such matters would be within the jury's own knowledge and experience. That last point is the subject of the renewed application for leave to appeal, the single judge having refused leave on that ground.
14. In dealing with those various submissions, the Recorder summarised the arguments and background and then expressed his conclusion relatively shortly in this way:

"So they are the matters I have to consider under section 78. I am satisfied that all that evidence is relevant and has probative value in this case and that that outweighs its prejudicial effect and that it should, therefore, be admitted. We have a case here of alleged dealing and it seems to me that those matters, the cash and the dealer's list, are relevant to that.

In relation to the expert evidence it would seem to me that that is a matter the expert is entitled to be put forward. He can be cross-examined and challenged by the defence, obviously in front of the jury, and it will be for the jury to decide whether they accept what he says on that, but there is admissible evidence and, therefore, the application in relation to all those matters fails."

15. We can deal with the ground advanced by way of renewed application straight away. In our view, the Recorder was plainly justified in ruling the expert evidence of Mr Holme admissible in all respects. It went to matters involving the cannabis markets and the way in which users and dealers customarily operated, which could not be expected to be within the knowledge of ordinary jurors, and it represented the views and observations which were the product of significant expertise in this area on the part of Mr Holme. It was relevant evidence. We therefore reject this ground.
16. We turn then to the two grounds on which leave was granted by the single judge.
17. It ought to be recorded at the outset that it is said before us that the Recorder should either have ruled such evidence inadmissible or should have excluded it under section 78 of the Police and Criminal Evidence Act. But inadmissibility as such was not part of the submissions advanced to the Recorder at the trial. Rather, it appears that the argument was confined to the issue of exclusion under section 78, and that indeed appears to have been the only point that was debated, or at least that is what appears from the Recorder's ruling. Certainly the argument before us has been very much more extensive, and indeed different, from that advanced below.
18. Dealing first with the admissibility of the lists which had been found, we are in no doubt at all that, as documents, they were relevant and to do with the offence charged. They were lists including entries which, it could properly be inferred, were to be linked with dealing with cannabis at the time. Further, the names in some cases corresponded on those lists to those found on the mobile phones. All that would go to rebut the defence of mere possession.
19. The difficulty is as to the entire contents of the lists. The latter entries on the lists were, as we have said, marked by the letter "H", and the figures involved also were of such a size as to be suggestive of dealing not in cannabis, but in heroin. The evidence of Mr Holme indeed was to that effect. But, for whatever reason, no count of being concerned in the supply of heroin was contained on this indictment; and the question thus has to be asked is as to how those particular entries were relevant to the count of possessing the cannabis with intent to supply, which was the only count which the appellant was facing. Such entries were not, on the face of it, "to do with" the count which he was facing, and on that basis, if those particular entries were to be admitted at all, it would presumably have to be under the provisions of section 101(1)(d) of the Criminal Justice Act 2003 as propensity evidence. But that is not the way the matter was approached in this ruling; indeed, there was no separate consideration of the contents of the lists at all, as opposed simply to consideration of the lists as documents. Moreover, there was no discussion at all before the Recorder as to the possibility of redaction of the lists, by excluding the entries ostensibly relating to heroin, before those lists were placed before the jury.
20. Whilst we acknowledge that the argument before us has been considerably more extensive, and indeed different, from the argument presented to the Recorder, we consider that in the circumstances of this case as they have arisen it would be wrong for us to confine our consideration to the way in which the argument was deployed before the Recorder.
21. Mr Dunham, on behalf of the appellant, now submits that in reality these entries, ostensibly relating to heroin, were not relevant to the count the appellant was facing at trial and should have been excluded on that basis.
22. Mr Kellett, appearing on behalf of the prosecution before us, on reflection accepts that those particular parts of the lists should not have been before the jury. We agree with that.
23. These particular entries were not admissible, save, if at all, as propensity evidence. In this regard we have borne in mind the various authorities to which Mr Dunham has referred us, including amongst others the cases of Graham [2007] EWCA Crim 1499 and Green [2009] EWCA Crim 1688 and the interesting comments on that case as reported at [2010] Crim LR 386.
24. That conclusion then simply highlights the issue of unfair prejudice, whether for the purposes of section 78 of the Police and Criminal Evidence Act or for the purposes of section 101(3) of the Criminal Justice Act 2003. The Recorder's ruling, as we have said, was on the footing that the contents of the entire lists were relevant. But if those later entries on the lists were not relevant or admissible as direct evidence of what was charged, and that had been appreciated, then the question of unfair prejudice and the undertaking of the balancing exercise needed would have stood on an entirely different footing. At all events, if those entries were not excluded the jury would have been presented with a picture of a man who was allegedly dealing in heroin as apparently supportive evidence designed to bolster a case of possession with intent to supply cannabis (the only matter charged).
25. Matters do not stop there. The cash of £17,000 was found over two months later at a different address. The amount of that cash was such as, as Mr Kellett accepted before us and was accepted at trial, not to be consistent solely with low level cannabis dealing. The Crown case at trial accordingly suggested that the size of the sum seized was in part to be explained by being derived from dealing in heroin, as well as dealing in cannabis. So the Crown case, by implication, depended upon the otherwise inadmissible entries on the lists relating to heroin to support an inference that the £17,000 itself related to dealing in drugs, both heroin and cannabis. Again, the potential prejudice to the defence from all this is obvious.
26. In summing-up, by a kind of hybrid Hanson direction, as it were, the Recorder at one stage said this:

"You must furthermore be particularly careful to focus your attention solely on the offence with which this defendant is charged. It is not being suggested by the prosecution that that sum of cash can be obtained by dealing just in cannabis; similarly, it is not being suggested by the prosecution that all on the list relates to cannabis dealing, and in particular it is not being suggested that the notes at the bottom on the first piece of paper relate to cannabis as opposed to heroin dealing. And you may consider, if you are satisfied on the two matters I have just mentioned, that that evidence is relevant in deciding whether the defendant is a dealer in cannabis, but what you must certainly not do is to form the view that the defendant is a dealer in other drugs, let's say heroin, and then to jump from that to automatically concluding, well, he must also be a dealer in cannabis. In other words, dealing in other drugs cannot by itself prove that the defendant is guilty of the offence with which he is now charged. So, even if you do conclude that the defendant is a dealer in other drugs, be very careful not to allow that to prejudice you unfairly against the defendant in relation to the offence with which you are concerned ..."

That particular passage, in our view, could not suffice to cure the mischief that had already occurred. Indeed, in the immediately preceding passage in his summing-up the Recorder had said this:

"Now, before you can treat the cash and the list as relevant evidence against the defendant, you must be sure on two matters: the first is that you must be sure that the defendant's explanations for the cash and the list is untrue; and, secondly, you must be sure that the cash and the list can only be explained by the fact that on the 18th of October 2011 the defendant was continuing to deal in cannabis and other drugs as opposed to having been merely a past dealer, a dealer in the past."

The reference in this part of the summing-up to dealing "in cannabis and other drugs" is not to be regarded as a slip: it represented the way the case had been permitted to be put by the Crown at trial.

27. In such circumstances we conclude that the appellant was faced at trial with evidence which was not directly admissible on the count contained on the indictment and, to the extent that it may have been potentially admissible as propensity evidence, was unduly and unfairly prejudial given the count charged.
28. There was, it is right to say, a significant amount of powerful evidence against this appellant: the actual possession of the cannabis, the bags, the expert evidence, the opening entries on the lists on which his fingerprints were found and the mobile phones. But on consideration we cannot be sure that the placing before the jury in this way of the evidence of the contemporaneous heroin dealing, without proper assessment of its admissibility or proper consideration of its treatment as propensity evidence, in circumstances where the potential prejudice was undoubtedly very great, would not have impacted upon the jury's reasoning or have affected the outcome.
29. Ultimately we have to ask ourselves whether this conviction was safe. We are constrained to say that it was not. Accordingly, the conviction has to be quashed and the appeal is allowed accordingly.
30. LORD JUSTICE DAVIS: Mr Kellett, do you have any application?
31. MR KELLETT: My Lord, I have. The matter should be re-tried, leaving this evidence out.
32. LORD JUSTICE DAVIS: Well, how the matter will be presented at any further re-trial, if we allow one, will of course be matter for those appearing. He was sentenced to 12 months.
33. MR KELLETT: He was. I am not quite sure when he came out, but he is now out, as your Lordships know.
34. LORD JUSTICE DAVIS: What do you say, Mr Dunham?
35. MR DUNHAM: A re-trial is not in the public interest. He has served his entire sentence. He has served his amount of time in custody, he has also served his release on tag.
36. LORD JUSTICE DAVIS: At the moment he does not stand convicted of anything.
37. MR DUNHAM: He does not stand convicted of anything, but ultimately he has served his sentence already.
38. LORD JUSTICE DAVIS: We will retire briefly to consider.
39. MR KELLETT: My Lord, there is one further matter in relation to that. There have been POCA proceedings in relation to the £17,000 that had been forfeited.
(The bench retired for a short time) - - - - -
40. LORD JUSTICE DAVIS: Mr Kellett, not with total enthusiasm, but we do not think the public interest would be served by having a re-trial given the count that was charged in the circumstances of this case. We therefore refuse your application.
41. MR KELLETT: Thank you, my Lord.
42. LORD JUSTICE DAVIS: Mr Dunham, your client will very clearly understand that this court has not given any pronouncement of innocence on his part, this court has decided there was a legal error below which caused the conviction to be unsafe. This court has gone no further than that, and your client will understand that.
43. MR DUNHAM: Yes.
44. LORD JUSTICE DAVIS: If I may say so, we found the assistance of both of you very helpful indeed. Thank you very much.