British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[
Home]
[
Databases]
[
World Law]
[
Multidatabase Search]
[
Help]
[
Feedback]
England and Wales Court of Appeal (Criminal Division) Decisions
You are here:
BAILII >>
Databases >>
England and Wales Court of Appeal (Criminal Division) Decisions >>
Sewell, R. v [2024] EWCA Crim 1854 (06 December 2024)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2024/1854.html
Cite as:
[2024] EWCA Crim 1854
[
New search]
[
Printable PDF version]
[
Help]
WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
|
|
Neutral Citation Number: [2024] EWCA Crim 1854 |
|
|
CASE NO 202304225/B3 |
IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT WOOLWICH
HHJ DOWNING T20220737
|
|
Royal Courts of Justice Strand London WC2A 2LL
|
|
|
6 December 2024 |
B e f o r e :
LADY JUSTICE MACUR
MR JUSTICE GARNHAM
RECORDER OF LIVERPOOL
(HIS HONOUR JUDGE MENARY KC
(Sitting as a Judge of the CACD)
____________________
____________________
Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 46 Chancery Lane, London WC2A 1JE
Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)
____________________
MR J BLOOMER appeared on behalf of the Appellant.
MS M KARAISKOS KC appeared on behalf of the Crown.
____________________
HTML VERSION OF JUDGMENT
____________________
Crown Copyright ©
LADY JUSTICE MACUR:
- This judgment is subject to an order made pursuant to section 4(2) of the Contempt of Court Act 1981, postponing publication of any report of these proceedings until the conclusion of the retrial, in order to avoid a substantial risk of prejudice to the administration of justice in those proceedings.
- On 16 November 2023, Courum Sewell ("the appellant") was convicted of two counts of being concerned in supplying a controlled drug of Class A to another, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. Subsequently, on 21 December 2023, he was sentenced to 4½ years' imprisonment on each count concurrent. Other orthodox ancillary orders were made. He appeals against conviction with leave of the single judge.
The Facts in Brief
- On three dates between 1 April 2020 and 7 July 2020, police officers observed individuals entering cars driven by the appellant and remaining within the car for only a very short time. One of those individuals was searched shortly afterwards and found to be in possession of a wrap of cocaine inside their mouth and close by, on the floor, was a wrap of heroin. At the home of another individual who had been in the appellant's car, the police found a substantial amount of heroin and drug dealing equipment. The appellant was arrested on 6 July 2020. No illegal drugs or other items of relevance were found on him or in the car, but he had £141 cash in a bag he was carrying and was in possession of three iPhones.
- Interrogation of one of the mobile phones revealed that since May 2020, it had been contacted or been used to contact telephone numbers associated with users of Class A drugs. Searches of properties with which the appellant was associated revealed large quantities of cash, some drug dealing paraphernalia and heroin.
- The appellant made "no comment" in interview but provided a prepared statement through his solicitor, stating that the money found at his grandmother's address was money paid to him for services through his business. The money at his home address was nothing to do with him but belonged to his wife. He and his wife gave evidence to this effect at trial.
- The defence case, in summary, was that the individuals entering the cars driven by the appellant were not customers fo drugs. All had different and innocent associations with the appellant.
- We make clear that there is no challenge to the judge's legal directions or her summing-up of any of the evidence. The issue in this appeal is whether a judicial intervention transcended the permissible limit of case management.
The Trial
- After the trial judge had delivered her legal directions to the jury and prosecution counsel had made their closing speech, Mr Bloomer, counsel for the appellant, made his closing speech to the jury. A transcript of his speech has been obtained at the direction of the single judge.
- Mr Bloomer focused on ten reasons why the jury could not be sure of the appellant's guilt. One such reason was in terms that:
"When we stand back and think carefully and coolly and we think about that transaction together, we notice something else though, do we not? One other feature of that incident that is in common sense, totally inconsistent with a drug deal. Do you remember
Officer Smailes[?] being so keen to tell us what a clear view he had? What does he see? He sees a one direction transaction. He sees a pass to a man who puts something in his back
pocket. Mr Sewell passing something to the Focus man who he said he thought might have been Micky Burke, sorry, Perkins.
Let us think about that in terms of a drugs supply. Surely drugs suppliers do not supply for free? Hand over the drugs and nothing is returned? Are drug users good, in common sense, at paying back later? Surely, taking it the other way around, drug users do not go to their dealer and say, 'here, have some money upfront for later drugs to be supplied on a different day.' Do drug users have the cash flow for that? What is to stop the dealer just taking their money? This is a one direction transaction. Common sense tells you that drug transactions are highly unlikely, are they not, to be one direction. It does not make sense for either side involved in a drug transaction for them to be like that.
...
You simply cannot be sure, sure, that he was dealing drugs. The only right verdict is one of not guilty."
Immediately after Mr Bloomer's closing speech and in the presence of the jury, HHJ Downing addressed Mr Bloomer directly on that part of his speech:
"Can I just say a couple of things first of all and I am going to say this to Mr Bloomer? Thank you, Mr Bloomer, for your enlightening the Jury as to your experience of how drug dealers pay for their drugs, suggesting that they do not give drugs for free
suggesting they do not take money up front. I think you will know, first of all, we have had expert evidence in this case about drugs are paid for and, as a matter of common sense and
experience, I think you will also know that people get into drug debt. And the only reason you get into debt is if you buy things and you do not pay for them at the time. You will
know as well as I do, and I am saying it for the benefit of the Jury because I think it is a fair point to make, that people supply drugs on tick. That is how people get into debt. So, with
respect, I think that does rather transgress what I said is the golden rule that there is no [inaudible] with the evidence.
MR BLOOMER: Since Your Honour's begun –
JUDGE DOWNING: I appreciate –
MR BLOOMER: I'm so sorry.
JUDGE DOWNING: I appreciate what you say, that you may think. You can put it rhetorically Mr Bloomer, but at the end of the day you are talking to a Jury who have not heard any evidence about the way that the drugs are bought, sold, paid for, tick, credit or anything else and I do not think it is fair to the Prosecution to leave them with the thought that the only way you can get a wrap of cocaine is by paying up front because there is plenty of cases in which that is not the case.
MR BLOOMER: Can I make –?
JUDGE DOWNING: Is that a fair comment? I hope you think it is.
MR BLOOMER: Can I make clear to Your Honour that, of course, I accept there's been no expert evidence in this case? Since this discussion has begun in front of the Jury, which perhaps on reflection, is not the choice that I would have suggested Your Honour take, may I make clear that I never at any stage would have dreamt of suggesting that drugs can only be bought for money up front. I invited them to reflect on the nature of the transaction being one sided, I would respectfully suggest, entirely properly. Your Honour will make the observations Your Honour will make but that's a –
JUDGE DOWNING: Well, we will leave it like that.
MR BLOOMER: – perfectly proper invitation –
JUDGE DOWNING: You say you think it is entirely proper to invite them to speculate – sorry, not to speculate, to reflect – I beg your pardon I should not have said that at all – to reflect upon
how likely it would be that a drug dealer does not take money for drugs. I am saying that, in the absence of expert evidence from a policeman [inaudible], you will have no doubt told the Jury that people build up debt, drug debts, because you only build up debt if you cannot pay for something you buy and it is not entirely proper to leave the Jury with the belief that that is evidence although it goes to undermine the Prosecution case because there is no
evidence handed over. And I think that is the proper way of leaving it.
MR BLOOMER: Well, Your Honour, having addressed me in this way, I feel obliged to indicate for the record that I have done nothing more than indicate the evidence as it is. I take the
view that is entirely proper. I am clear that Your Honour disagrees. Your Honour will know why I am pointing that disagreement out at this stage.
JUDGE DOWNING: We will leave it at that. Thank you very much."
- The respondent prosecution, represented by Ms Karaiskos KC, contends that it was appropriate for the judge to correct or clarify a misleading comment in a closing speech, although concedes that ideally this should have been done, if at all, in the absence of the jury. She submits that the judge was correct to remind the jury that there had been no expert evidence on the point of the drug transactions, otherwise there was a risk that the jury might speculate upon the same.
- She submitted that the timing, nature and tone of the judge's intervention did not devalue the entire defence case in the eyes of the jury. She submits that the defendant's evidence patently lacked credibility. He was not in employment at the time of the allegations. He could not explain why he was renting expensive cars during the national lockdown. He could not properly account for the cash found in the two properties connected to him and the convictions can be regarded as safe.
- However, Ms Karaiskos, in her submission to us today, fairly concedes that she would not have objected to the nature of the closing speech made by Mr Bloomer, nor asked the judge to make any correction to it.
Discussion
- In our view, if any judicial rebuke of Mr Bloomer was necessary, and we do not have to determine that point, it should not have taken place in front of the jury. The better practice would have been to have dismissed the jury for the day and to raise the issue with counsel to either allow him to answer any suggestion that the judge made that he had overstepped the mark. If he had done so, then it would have been preferable for him to been invited to redress the situation before the jury prior to the summing-up. If he did not, or refused to do so, the judge was entitled to correct any misleading comment or to emphasise that there was no evidence on matters A, B or C.
- If the matter stopped there, it may well have been that we would have taken the view that the conviction was nevertheless safe. However, unfortunately, the judge went beyond this and introduced a subject that was not in evidence before the jury at all, that is drug debt. The evidence she introduced was obviously slanted to the prosecution case. If it was not evidence then it was surely an augmentation of the prosecution speech. The timing was significant. The judge simply overstepped, by far, the permissible line of judicial comment.
- In Michel v The Queen [2009] UKPC 41 Lord Brown, giving the judgment of the court, made it clear that the issue whether a trial has been fair was not to be judged merely by correctness of the result. At paragraph 27 he said:
" There is, however, a wider principle in play in these cases merely than the safety, in terms of the correctness, of the conviction. Put shortly, there comes a point when, however obviously guilty an accused person may appear to be, the appeal court reviewing his conviction cannot escape the conclusion that he has simply not been fairly tried: so far from the judge having umpired the contest, rather he has acted effectively as a second prosecutor...
Lord Bingham was, of course, right to recognise that by no means all departures from good practice render a trial unfair.... Ultimately the question is one of degree ...
31 ... not merely is the accused in such a case deprived of 'the opportunity of having his evidence considered by the jury in the way that he was entitled'. He is denied too the basic right underlying the adversarial system of trial, whether by jury or Jurats: that of having an impartial judge to see fair play in the conduct of the case against him. Under the common law system one lawyer makes the case against the accused, another his case in response, and a third holds the balance between them, ensuring that the case against the accused is properly and fairly advanced in accordance with the rules of evidence and procedure. All this is elementary and all of it, unsurprisingly, has been stated repeatedly down the years. The core principle, that under the adversarial system the judge remains aloof from the fray and neutral during the elicitation of the evidence, applies no less to civil litigation than to criminal trials."
- Ms Karaiskos has reminded the court that throughout the trial the judge dealt with several matters of law and in her rulings was conspicuously fair. We agree and have no reason to find other than the judge umpired this trial fairly in all other respects. However, the fact of the intervention to which we have referred , leads us to conclude that the judge's own introduction of evidence, something that she complained Mr Bloomer had done, renders the convictions unsafe.
- We allow the appeal. Ms Karaiskos has sought leave for a fresh trial. Mr Bloomer, in response, points to the age of the offences and also the fact that this appellant has now served nearly 2 years of a sentence of imprisonment.
- These are serious offences. We regard there to be evidence that is capable of fresh review by a different jury. The delay that will be occasioned is unfortunate but nevertheless does not overcome those issues of public interest which lead us to grant the prosecution application for a fresh trial.
- Consequently we give directions. First, we allow the appeal and quash the convictions. We direct that the prosecution serve a fresh indictment upon the Crown Court officer not more than 28 days from the date of this order. The appellant is to be re-arraigned on the fresh indictment within 2 months thereafter. Any ancillary matters relating to bail will be dealt with by the Crown Court. As regards the question of retrial, we remind Mr Bloomer and any solicitor to which he will make contact, that the retrial will not be covered by the old representation order and therefore application should be made to the Legal Aid Agency in Liverpool, the address of which can be provided, if necessary, by the Court.
- MR BLOOMER: I should only say that I am most grateful to your Lordships and Ladyship.
- MS KARAISKOS: As am I. Thank you, my Lady.
- LADY JUSTICE MACUR: We are grateful to both of you. A short point but an interesting one. Thank you both very much indeed. I did not think there is any doubt the directions start from today, so the 28 days and the 2 months run from today. Thank you both very much.