England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT (sitting at Bristol)
His Honour Judge Roach
T2015 7002

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/11/2017

Lord Justice Simon:

Introduction

1. On 5 February 2016, in the Crown Court at Bristol (before HHJ Roach and a jury) the appellant was convicted of conspiracy to import cannabis contrary to s.1 Criminal Law Act 1977. On 19 February 2016, before the same constitution, he was sentenced to a term of 9 years' imprisonment.
2. There were 3 co-accused. Malcolm John pleaded guilty to the conspiracy and was sentenced to 64 months' imprisonment. Peter Davies and Claire Jones were acquitted.
3. The appellant appeals against that conviction with the leave of the full court, which granted the necessary extension of time.
4. The case concerned an agreement to bring cannabis into the United Kingdom from South Africa. The offending came to light in early October 2013 when customs officials carried out a routine inspection of a consignment of goods that had been flown in to Heathrow Airport, and discovered 650kg of herbal cannabis made up of individual blocks. The street value of the illegal consignment was more of £1.5 million.
5. The shipping documentation bore the legend 'seven pallets of personal effects' with a destination at a storage unit in Bristol. The police replaced the cannabis with individually wrapped bricks of a similar size and weight, and undercover officers drove the shipment to its intended delivery address: a trading estate in Avonmouth, where Malcolm John signed for the delivery and put it in a storage unit that he rented. He was arrested, and his home was searched, as was another storage unit in Swansea ('the Swansea unit') for which he had the keys. The Swansea unit was rented by Malcolm John's son-in-law, the appellant.
6. No drugs were found in this storage unit. However, a number of other items were discovered that are material to the appeal: (1) a 20-tonne metal press, (2) a blue notebook and (3) various items which, the prosecution said, were drug paraphernalia: a heat sealing machine with traces of cannabis on it, scales, heat re-sealable bags, cling film and twine.
7. The metal press had traces of cannabis on its metal plates; and the appellant's finger-prints were found on a wooden block associated with the press. The appellant's fingerprints were also found on the inner and outer leaves of the notebook, which contained hand-written entries and loose leaves which, the prosecution said, were the sort of notes or lists which might be kept in cryptographic form by a drug dealer to record sales.
8. The prosecution case was that Malcom John had arranged for cannabis to be imported into this country from South Africa as part of a conspiracy, whose existence was evidenced by his guilty plea. The case against the appellant was that he was part of the conspiracy, and had received money to facilitate the delivery in October 2013.
9. By the time of the summing-up the prosecution case consisted of a number of strands. First, the prosecution relied on evidence of bank deposits (just short of £16,000) made by Malcolm John and others into the appellant's bank account between January and October 2013, which (it was said) was payment for the drugs that were imported. Secondly, there was telephone contact between the appellant and Malcolm John (and others) at the time of the money transfers, with the pattern of calls coinciding with payments. Thirdly, the prosecution relied on the appellant's fingerprints on the wooden block and the notebook in the Swansea unit, the equipment with traces of cannabis and other paraphernalia used for the packaging and distribution of drugs. Fourthly, the appellant's previous conviction in November 1995 for importing herbal cannabis into the UK.
10. The appellant was the subject of a European Arrest Warrant; and as a consequence, he was not interviewed.
11. The defence amounted to a denial that the appellant had taken any part in any conspiracy to import cannabis; and the issue for the jury was whether he was involved in the conspiracy.

The rulings

12. In the course of the trial, the judge made rulings on two applications which are the subject of this appeal. The first ruling (dated 26 January 2016, before the start of the trial) related to the admission of evidence found in the Swansea unit on which the prosecution intended to rely (the press and the notebook); and the second ruling related to the admission of evidence of the appellant's 1995 conviction under the bad character provisions of the Criminal Justice Act 2003 ('CJA 2003').
13. So far as the first application was concerned, the defence objected to the admission of this evidence on the basis that it was irrelevant to the charge of conspiracy to import herbal cannabis and was prejudicial. Counsel for the appellant (not Mr Farrell QC), argued that the Swansea unit was not under the appellant's control during any part of the indictment period; and the conclusion of the prosecution expert (Mr Collins) was that the press had no relevance to an importation of pressed herbal cannabis, which by its nature was already pressed. So far as the notebook was concerned, although the defence conceded that it seemed to relate to drug related activities, Counsel submitted that the contents appeared to relate to events in 2011 and 2012, whilst the conspiracy was alleged to have taken place between January to October 2013.
14. The prosecution argued that both pieces of evidence were probative. The appellant's fingerprints were on the inside and the cover of the notebook, whose contents consisted of what could be a dealer's list, with references to drugs and potential customers. The metal press could be considered by the jury as being used for drugs. The metal press and the notebook, together with other paraphernalia which could be used for packaging drugs had been found in the Swansea unit that was rented by the appellant. Malcolm John had access to the unit and had the keys to it at a time when the appellant was in Spain. The appellant's fingerprints were found on the inside and the outside pages of the notebook which suggested that he was the author or, at the very least, had knowledge of its contents. The notebook was a link to two of the conspirators.
15. The Judge ruled that the Prosecution was entitled to put before the jury what might otherwise be extrinsic evidence if it went to an issue in the case. He referred to Thrussell [1981] (unrep), Bagga [1986] (unrep) and Peters [1995] 2 Cr App R.77). The principle was that, if an issue were raised as to mens rea of the conspiracy as it affected a particular individual, then such evidence was potentially probative and could be admitted, see also Archbold 25-496 to 497.
16. In the Judge's view, the relevance of the evidence was its potential to establish the appellant's connection with cannabis and with dealing in cannabis. It was evidence which the prosecution was entitled to adduce because it addressed the defence that the appellant had nothing to do with importation of cannabis. The blue notebook contained references which were capable of being construed by the jury as references to drug dealing. The dates did not matter.
17. The second application, made shortly before the end of the prosecution case, was to adduce the appellant's previous conviction for importing cannabis under the bad character provisions of the 2003 Act. In September 1995, the appellant had arrived at Heathrow Airport from South Africa; and was found in possession of 2kgs of herbal cannabis. He later told the police that he was taking the cannabis to Ireland where he intended to sell it.
18. The prosecution relied on s.101(1)(d) Criminal Justice Act 2003. While accepting that it was an old conviction, Mr Bremridge argued that it had significant relevance. The issue in the proceedings as advanced in the defence statement was whether the appellant was involved in the conspiracy to supply herbal cannabis. The previous conviction went to a matter in issue; namely, whether he had a propensity to import cannabis from abroad, and in particular from South Africa.
19. The defence argued that the conviction was a very old, single conviction. Although a single conviction could amount to propensity, see R v Hanson and others [2005] 1 WLR 3169, care needed to be taken to ensure that no unfairness resulted. The conviction was of no probative value in the instant case, which was a charge of an organised conspiracy to bring substantial amounts of cannabis from South Africa. In these circumstances, it would be grossly unfair to admit the evidence of the 1995 conviction.
20. In his ruling of 28 January 2016, the Judge decided that the 1995 conviction had similar hallmarks to the current charge. On both occasions herbal cannabis, originating from South Africa, was imported into the UK. The conviction was capable of giving rise to a propensity. Although it was an old conviction, any prejudice was outweighed by the distinctive features.
21. The appellant did not give evidence.
22. In the introductory part of the summing-up the Judge referred to what the police had discovered at the Swansea unit (s/u 5D-G). He told the jury that the prosecution relied on these to show that the appellant had previous involvement in the processing of cannabis; and submitted that this involvement, together with his previous conviction in 1995, pointed to the conclusion that he took part in the conspiracy to import cannabis in 2013.
23. Later, in the summing-up, the Judge gave a bad character direction (s/u 15D-16H and 24E-F), which covered the packaging equipment found in the Swansea unit and the 1995 conviction; but not the contents of the notebook or the press. No criticism is made of the form of the bad character direction, so far as it went.
24. The Judge also referred to the evidence of Mr Collins (the prosecution expert) to the effect that (1) the press (albeit with the appellant's fingerprints on it) would not have been used to press the imported cannabis; but (2) there were parts of the notebook that were 'consistent with the sort of note or list which might be kept by a drug dealer in cryptic form to record his sales', and to the appellant's fingerprints on the notebook (s/u 23B-G).

The grounds of appeal

25. On the hearing of the appeal, Mr Farrell repeated some of the points made before the Judge.
26. As to the first point (the evidence relating to the press and the notebook in the Swansea unit), he submitted that the evidence should not have been admitted, and its admission rendered the conviction unsafe. He further argued that, having admitted the evidence, the Judge's summing-up on the evidence was insufficient and confusing. It was bad character evidence and, as such should have been the subject of a bad character notice and application, without which it was prima facie inadmissible. If the prosecution had made a bad character application it would have failed because it would not have satisfied any of the gateways in s.101(1) of the CJA 2003. Furthermore, if the Judge had applied to test in s.101(3), he should have concluded that the evidence had such an adverse effect on the fairness of the proceedings that it should be excluded.
27. In a developed submission which extended some considerable way beyond what had been argued before the Judge, Mr Farrell submitted that, on the hypothesis that the notebook contained dealer lists, its contents had nothing to do with the alleged facts of the offence charged, and could only be admitted on the basis of the bad character provisions of the Criminal Justice Act 2003; and that putting the evidence before the jury in an unredacted form, containing references to other drugs (including class A drugs) was highly prejudicial, see Taswir Mohammed [2103] EWCA Crim 901 [19]-[24].
28. In response, Mr Bremridge submitted that the significance of the findings in the Swansea unit had to be seen in the context of the issues at trial. The appellant's defence statement, denied any involvement in the importation of the blocks of cannabis, and gave an innocent explanation for the cash payments through his bank-account. The appellant's fingerprints had been found on wooden blocks used with the press. This was relevant evidence because it would be open to the jury to conclude that it had been previously used to compress cannabis into different quantities for onward supply and might be used in the same way again. The significance was not simply historic. The appellant's father-in-law had access to the Swansea unit and it was the prosecution case that there were frequent telephone calls between the two of them in relation to the conspiracy. He accepted that, as the cannabis had been imported in blocks, it did not need to be compressed. Nevertheless, it was open to the jury to conclude that, having been used to compress cannabis into different amounts in the past, it could be used for that purpose again. The notebook was relevant because it could be interpreted as a dealer's list and was relevant to the existence and extent of the conspiracy. It was found in the Swansea unit to which Malcolm John, who had arranged to take delivery of the 650kg consignment of cannabis, had access. Although some of the entries were dated from 2011 and 2012, the majority were undated, and the prosecution did not accept that all the entries fell outside the period of the conspiracy. Whether or not the appellant made the entries in the notebook, his fingerprints on it showed that he had access to it at some point, and it was open to the jury to conclude that he had knowledge of what the entries were about
29. As to the second point (the admission of the appellant's previous conviction), Mr Farrell submitted that the Judge was wrong to admit the evidence. It related to an offence committed 18 years before the index offence. Furthermore, it was not sufficiently similar to the facts of the indicted conspiracy to be probative: it was concerned with a much smaller quantity of cannabis (2kg); the fact that Heathrow was used on both occasions was largely irrelevant since it is the UK's busiest airport; and the modus operandi was entirely different: in 1995, the appellant was passing through Heathrow as a passenger, in contrast to what was a sophisticated use of air cargo facilities to smuggle the drugs in 2013.
30. Mr Bremridge submitted that the conviction was rightly admitted in evidence for the reasons given by the Judge.

Consideration of the submissions

31. In our view, these issues involve three broad questions. In relation to each piece of evidence: (1) what was the nature of the evidence; (2) how was it sought to introduce it, (3) should it have been admitted, and if so, on what basis?
32. We deal first with the notebook, the press and the packaging material, although each requires separate consideration.
33. Section 98 of the 2003 Act defines 'bad character' as:

evidence of, or disposition towards, misconduct on his part, other than evidence which –

(a) has to do with the alleged facts of the offence with which the defendant is charged …

34. If evidence has to do with the facts of the case it is not bad character evidence.
35. In our view, it was open to the prosecution to contend that entries in the notebook related to payments made in the course of the conspiracy, and how the imported cannabis might have been distributed. However, as Mr Farrell demonstrated, copies of the notebook went before the jury without editing, and this included material from which the jury might have concluded that the drug dealing went beyond dealing in cannabis during the indictment period and extended to transactions in relation to class A drugs. This was potentially highly prejudicial and, on the basis of the Judge's direction about its contents, potentially misleading. Plainly consideration should have been given to agreeing formal admissions in relation to the cannabis entries rather than placing the entirety of the notebook before the jury.
36. The press too might have been admissible in relation to the ongoing conspiracy were it not for the fact that the prosecution evidence was that it would not have been used to press the imported cannabis, which had already been pressed. Mr Bremridge accepted that the press would not have been used to process the 2013 importation; but argued that it had probably been used on an earlier occasion for the purposes of generating the cash that the conspirators would have needed to fund the 2013 consignment. We do not accept this argument. If he were right about this, and it is largely speculation, it would amount to conduct in furtherance of the conspiracy, but outside the period of the conspiracy as indicted.
37. The evidence of the packaging equipment was plainly admissible as evidence of how the conspiracy might have developed had the consignment not been intercepted.
38. It follows from the above, the packaging evidence and some of the notebook entries were admissible under s.98. The evidence in the notebook in relation cannabis and distribution lists (although not on the face of it that relating to dealings in other drugs), and the press, could have been admitted as bad character evidence.
39. So far as question 2 is concerned (how it was sought to introduce the Swansea unit evidence), the defence applied to exclude all the evidence under s.78 of the Police and Criminal Evidence Act 1984 ('PACE 1978'): the power to exclude otherwise admissible evidence on the basis of its unfairness. It was not an application by the prosecution to admit bad character under s.101(1) of the CJA 2003, nor the hearing of a defence argument that such bad character evidence be excluded under s.101(3) on the basis that it would have such an adverse effect on the fairness of the proceedings that it should be excluded.
40. Mr Farrell submitted that, whatever the basis on which it came before the Judge, it should have been a prosecution application to rely on bad character. For the reasons set out above, we agree in relation to the evidence of the press and those parts of the notebook that related to prior cannabis transactions. However, where the Crown Court is asked to deal with an issue on a particular basis which is agreed between the parties and does so, this Court will be unlikely to intervene unless the matter proceeded on a false basis which impacts on the safety of the conviction.
41. What this case shows is the care that may be needed in deciding on what basis different types of apparently similar evidence should be admitted or excluded.
42. The basis on which the application was made is less material in the present case.
43. By the time the Judge came to sum-up the case and give his written directions of law on this evidence, he did so under the heading, 'bad character', giving a conventional propensity bad character direction in relation to the packaging items found in the Swansea unit.
44. As the editors of Blackstone Criminal Practice 2018 at F13.11 note, the dividing line between cases involving bad character evidence and cases falling within s.98 is fine; and this is a reason:

… for the Court to have in mind the safeguards attached to the former when considering the latter, and to consider appropriate directions to the jury on the use to which it should be put and, if appropriate, the weight they should attach to that evidence.

45. This leaves open the issues in relation to the way in which the notebook evidence was dealt with. As already noted, the entirety of the notebook entries were placed before the jury, with the Judge dealing with their contents in the terms of Mr Collin's evidence about them, but without giving a direction as to how the jury should treat them beyond saying that it might be treated as evidence that the appellant was 'involved in the trafficking of cannabis' (summing-up p.24A).
46. This was unsatisfactory. There was unedited material which should not have gone before the jury, and bad character evidence on which the jury had not been properly directed in the summing-up. In our view the errors of approach in relation to the admission of the notebook evidence and in the directions, render the conviction unsafe, even if the 1995 conviction were rightly admitted in evidence.
47. On this basis, it is not strictly necessary to say anything about the admission of the 1995 conviction. It was plainly bad character evidence which had to be, and was, the subject of an application and consideration of the matters set out in s.101(1)(d) of the Criminal Justice Act 2003.
48. The starting point is the strength of the prosecution case. If the prosecution case is weak, this will affect the decision on whether to admit the bad character evidence: see Hanson (above) at [18]. Equally, this court does not lightly interfere in what may be finely balanced decisions on the admission of bad character evidence and is slow to interfere with a ruling where the judge has directed him or herself correctly, see Hanson at [15].
49. It is sufficient for present purposes to say that, quite apart from the other evidence to which we have referred, the Swansea unit evidence linked the appellant to the warehouse where cannabis had been processed and where the imported consignment could have been processed, with evidence linking the appellant to the means by which it might be processed. There was also evidence of a propensity to deal in cannabis in the form of the admissible parts of the notebook and the press. This is not a case in which it can be said that the evidence was weak or insubstantial such that the admission of the previous conviction would be outside the broad ambit of a legitimate judgment to admit the evidence.
50. However, for the reasons we have given we allow the appeal and quash the conviction.