Boksh, R. v [2003] EWCA Crim 1145

Case No 2001/04712/W4[2003] EWCA Crim 1145
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday 28 February 2003
Between
R E G I N ACrown
The Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE MANCE
MR JUSTICE COLLINS
and
HIS HONOUR JUDGE ZUCKER
(Acting as a Judge of the Court of Appeal, Criminal Division)
__________________
- v -
Between
SHAHHED BOKSH__________________Computer Aided Transcription bySmith Bernal, 190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)__________________MR T McKINNON appeared for APPELLANTMR G PATTERSON appeared for CROWN____________________J U D G M E N T
[1]On 23 July 2001, in the Crown Court at Southwark, before His Honour Judge Wadsworth QC, the appellant, Shahhed Boksh, was convicted of possessing a class A controlled drug (diamorphine) with intent to supply (counts 1-3), of possessing a class A controlled drug (cocaine) with intent to supply (count 4), and of possessing a class A controlled drug (cocaine, count 7). He was sentenced in respect of counts 1-3 to five years' detention in a young offender institution concurrent on each count; in respect of count 4, to four years' detention in a young offender institution concurrent; and in respect of count 7, to twelve months' detention in a young offender institution concurrent. He now appeals against conviction by leave of the single judge.[2]The facts in outline are that on 8 February 2001 the police executed a search warrant on 24 Bramble House, Perring Estate, London. This appellant together with Abdul Prohad were present on the premises. They had been under surveillance between 30 January and 2 February 2001. The Crown alleged that in the flat the police found on executing the warrant a large number of wraps of heroin and crack cocaine, 1.025, 0.372 and 33.17 grammes of heroin (the subject of counts 1-3), 7.942 grammes of cocaine (the subject of count 4), and 0.48 milligrammes of crack cocaine (the subject of count 7). Drug paraphernalia was seized, including a chopping board, a Stanley knife and plastic bags. Various documents were found on the premises showing words and numbers relating, so the Crown said, clearly to drug distribution. Those included documents which bore the name of the appellant. The Crown's case was that Prohad was the store keeper and that he distributed drugs to at least two runners, of whom the appellant was one. Prohad effectively admitted that case but raised an allegation of duress from Ali Ahmed which the jury rejected. The appellant denied the Crown case. He said that he was simply a buyer of drugs for his own use. He had become friendly with Prohad and hence spent a certain amount of time on the premises.[3]On entering the premises the police saw, according to PC Power, wraps on top of a cupboard which Prohad said were personal. There was one wrap found on the fireplace which had the appellant's DNA profile on it (count 2). Prohad said that he must have left it over there, and the scales, Prohad said, were for weighing his own heroin.[4]In interview the appellant made no comment.[5]In evidence Prohad explained that he supplied the appellant with drugs to sell because he had been given orders by Ali Ahmed to do that; that the appellant would come three or four times a day; and that he would also stay and smoke there once or twice a week. He accepted that on one day, 8 February, he had left the appellant alone in the flat. He had done so although there were drugs there.[6]The appellant said that he had been taking heroin for about two years, had become addicted after the first six months and was taking one-and-a-half wraps a day. He would get it by calling up a dealer. He got the necessary money by working. He had known Prohad since school days and his relationship with Prohad was that of a customer and then eventually one of friendship. He had started going to the flat at 24 Bramble House in early 2000. He had visited Bramble House for eight or nine months to purchase drugs and Prohad was already there. He generally stayed thirty minutes or an hour to smoke with Prohad. Sometimes he stayed just a couple of minutes. He saw Prohad writing up records, but never saw Prohad writing his name or anything about him. He said that it was impossible that he ever bought thirty wraps in a day or that the documents suggested that. He knew nothing about them. He gave explanations as to his visits as observed by the police. He said that on 8 February when the police executed the warrant he had come to buy drugs. Then he had gone around to neighbouring premises to pass a message for Prohad. He said that he often ran such errands for a little bit of extra drugs. He had bought the wrap in count 2 and had put it himself on the fireplace. As to some drugs found under the bed, one of which also showed (on the police evidence) his profile, he denied seeing or knowing about any “colossal” amount of drugs under the bed. Insofar as he had touched any drugs found there, his case was that he had simply touched them as a user on the premises. Prohad often would give him a selection of wraps to choose, and he would sometimes fiddle around with a couple and give back the ones he did not like.[7]The grounds of appeal which are now advanced are as follows. The first is that the Crown failed to disclose vital evidence, namely an exhibit, to the defence before the trial. This was a piece of paper which was said to have been in the appellant's pocket at the time of his arrest at the flat. The existence of this piece of paper was not, however, mentioned in the Premises Search Book. That book simply recorded that £215 cash was found in the appellant's right trouser pocket. He was asked, “Where is it from?” He said, “It's mine.” He was asked, “From where?” He said, “My bank account.” However, when the relevant exhibit (exhibit 8) was looked at during the early part of the trial it was observed, and immediately disclosed to all involved in the trial, that among the notes inside the security wrapping there appeared to be a piece of paper with some writing on it. That piece of paper when it was taken out proved to have on it two (or possibly three) letters, “L” and “S” which, on the Crown case, point to particular colours of drugs, and some numbers: against “L”, “5 plus 5”, and against “S” “5 plus 5 plus 3”. It was on the Crown's case therefore a document similar in character to the records found in the flat, a document pointing to drug dealing. Those records found in the flat were records which Prohad admitted writing. However, in the course of his evidence Prohad mentioned at one point that any such piece of paper found among the notes on the appellant would have been made out by the runner (in other words, in this case by this appellant). We will revert to the potential significance of that.[8]The second ground of appeal is that the judge erred in taking the view that there was insufficient information for a handwriting expert to make any finding, and that he therefore erred in his decision to refuse an adjournment of the trial, or to order a fresh trial, discharging the jury for the purpose, once the piece of paper came to light. That ground of appeal is now supplemented by references to the possibility of fingerprint testing or DNA testing.[9]Thirdly, it is said that the judge was wrong in his ruling that the paper was admissible and that the matter could be dealt with by cross-examination of the police officers. He should, if he allowed the trial to continue, have excluded this evidence under section 78 of the Police and Criminal Evidence Act 1984 on the ground that it would be unfair to the defence to admit it. In that context, too, it is submitted that the defence were unfairly prevented from instructing a handwriting or another forensic experts.[10]Fourthly, it is submitted that the direction given by the judge that the jury should only consider the evidence before them was insufficient in relation to this document. That relates primarily to a question from the jury before final speeches in these terms:
“Can we ask whose writing is on the document with the money?”

In answer to that question the judge said this:

“If I may say so, it is a very reasonable question. The answer is that you and I have to take this evidence as we are given it by counsel. There has been no evidence on that, and I think you can take it that there is no evidence on that. I will go a little further. One might have wished that that piece of paper had been fingerprinted or DNA profiled. It apparently was not done. We have heard nothing about it and there it is. There is no evidence on it. You and I must deal with what we have.”
In answer to that question

the judge said this:

[11]Mr McKinnon, who did not appear below but who has appeared before us for the appellant, submits that that was an answer or a direction which focused only on the forensic aspect of the matter and told the jury no more than that there was no expert evidence of any sort as to the maker of the writing on the document. He also submits that that must have been what the jury was asking. In our view that is an untenable submission. The jury and everybody involved, it appears -- counsel and the judge as well -- must have forgotten about the passing answer given in the course of very long evidence by the co-defendant, Prohad, attributing the writing on this document to the runner (ie to the appellant on Prohad's evidence). The jury must have been asking whether there was any evidence as to the authorship of the document, and they were given the clearest direction that there was none. We must assume that they proceeded on that basis. They cannot have proceeded on the basis that the document was written by the appellant. It was never suggested by the Crown that the document was written by the appellant. It was never put to the appellant when he gave evidence in his own defence that it was written by him. The sole significance which the Crown attached to the document during the course of the trial was for its similarity in nature to the many other documents apparently connected with drug dealing which the police found in the flat, and which Prohad admitted that he had written. Obviously if such a document was found in the appellant's pocket along with the cash, then that was for that reason a matter of relevance in the overall picture. However, we do not think that it was of anything like the centrality which it has, for understandable reasons, achieved on this appeal. There was, as we shall demonstrate, a very great deal of other evidence in this case. The judge's summing-up, not to mention the length of the cross-examination of Prohad and the appellant, confirm this.[12]The only possible basis on which the appellant could explain the presence of the piece of paper in the security bag at trial was that it had never come from his pocket, but had been inserted into the security bag. The likelihood of insertion by mistake or negligence, on the police evidence, is negligible. Three police officers were called: two who were involved in the discovery (PC Slade and PC Siddon), and one who was involved in writing out the Premises Search Book (PC Smith). We only have a transcript of PC Smith's evidence, but counsel for the Crown has helpfully read us the notes of cross- examination of PC Slade and PC Siddon. The upshot of PC Smith's evidence was that there was no way in which the security bag could have been tampered with or in which the piece of paper could have been inserted at some stage subsequent to the insertion of the cash and the bag sealing, which took place in the bedroom at 24 Bramble House immediately after the discovery of the cash. So if there was any insertion it must have been at the very outset of the matter by one of the other police officers who (one can only speculate) would have had to have found a piece of paper elsewhere among the other pieces of paper and decided to insert it in the appellant's cash. That was never put directly to either police officer. There was no basis for doing that. The most that was suggested to one or other was that the paper was not there at the time of the appellant's arrest and that it had not been in the appellant's pocket.[13]As we have indicated, this was not a matter which achieved prominence in the judge's summing-up. The piece of paper is barely mentioned. All that

the judge said at one point in dealing with the appellant's evidence was:

“He said it was quite impossible that he had ever bought thirty wraps in a day. He said of the little sheet that was with the £215 found on him that he knew nothing about that and had nothing to do with it.”
It would have been better if the judge had gone on to deal expressly with the police officers' evidence and the issue whether the piece of paper was present in the pocket with the cash when the cash was discovered. However, that is hardly an issue which the jury would have forgotten so far as it had any significance. In reality there was, as we have demonstrated, very little which could be said in favour of the defence case that the police had dishonestly inserted a slip of paper in some hope that at some future stage it would be discovered or seen and used to incriminate the appellant. That was not a point which could be expressly put to either police officer, as we have indicated. The matter had to be approached very cautiously, as counsel did.[14]It is suggested that the judge's summary of the evidence was inaccurate in the sense that it is suggested that the little piece of paper had always been with the £215, even at the time of the finding of those notes, and so pre-judged the issue on which the judge did not further direct the jury. Again, we do not think that that is a mistake the jury would have made, having heard the evidence of the appellant and of the police. The judge clearly meant that the little sheet of paper was with the £215. That was true at the time of the trial; that sum of £215 had been found on the appellant at the time of his arrest.[15]Turning more specifically to the points made in the grounds of appeal and by Mr McKinnon, the first is, as we have said, that there was a failure to disclose vital evidence before trial. This is referred to by reference to a number of cases of abuse of process by the Crown or by the police relating to documents or other evidence. Reference has been made to R v Ward [1993] 1 WLR 629, to R v Keane [1994] 1 WLR 746, and to R v Winston Brown [1997] 3 WLR 447, but these were all cases of very serious misconduct -- cases where the police or the prosecution wrongly withheld material. The present case seems to us to fall into quite a different order of seriousness. The existence of the piece of paper was not appreciated by anyone on the Crown case from the moment when the cash was bagged onwards. One officer told the jury that he remembered seeing the piece of paper among the cash, but did not attach significance to it, and that the unfortunate and mistaken description of the whole of the contents as “cash” resulted from that error. There is no basis for considering that there was here any intentional misconduct or that there was any deliberate suppression of evidence. That, as we have said, was never suggested to any police officer. All that was suggested was that as a matter of fact the piece of paper had not been there. As soon as the piece of paper was noticed once again, its existence was disclosed. We do not regard the present case as in any way analogous to any of those relied upon, or as being a case where there has been any such abuse of process or withholding of material as could justify a stay of the proceedings or their dismissal, or indeed the discharge of the jury to enable a further trial.[16]It is nonetheless said that the judge should have excluded the officers' evidence and the Crown from producing and relying on the piece of paper because it was unfair to admit it in the circumstances or that if he allowed it in then he should have discharged the jury, and ordered a retrial, or, in the further alternative, that he should have ordered an adjournment. We doubt if the last would have been a realistic possibility, but those are the three possibilities.[17]It is, however, necessary to repeat the significance which the Crown sought to attach to this piece of paper. The first, as we have said, is that in the overall context of the Crown's case it was only a limited and a late element. The Crown's case was pursued up to the discovery of the piece of paper entirely in reliance on the many other matters to which we will come. Secondly, once the Crown introduced this piece of paper into the case with the judge's permission, the sole significance attached to it was its similarity to the other pieces of paper found in the flat which Prohad admitted he had written. As we have observed, the Crown never suggested or put that the appellant had written anything on the piece of paper, simply that its possession by him linked him to the flat, to drug-dealing and to the other pieces of paper.[18]As regards the question whether the judge should have refused to allow the piece of paper in or should have discharged the jury or adjourned, the course of the trial in fact allowed time to the defence to consider its position, to take instructions and to put the appellant's case with regard to the piece of paper. His case was, as we have said, that he had never been in possession of it. He offered no suggestion as to how, if he was in possession, he might have come by it legitimately or it might have some legitimate explanation other than involvement in drug dealing. The police could be and were cross-examined. Such explanation as could be was put to the officers responsible for finding and bagging the cash and the paper, as we have said.[19]The prejudice suggested to the judge at the time and in the initial grounds of appeal was loss of the opportunity to instruct a handwriting expert. But, as we have said, the Crown's case was not that it was written by the appellant. The judge also thought that the quality and quantity of the writing on the paper was so limited that no expert would be able to make anything of the very limited letters and figures on the paper. There is now also the suggestion, which the judge in his remarks to the jury anticipated, that DNA analysis or fingerprint expertise could have assisted to negative any link with the appellant. That does not appear to be an objection that the defence raised at the time; but whether they did or not it is on any view extremely speculative. Even if there was no DNA and no fingerprints -- and there was certainly no evidence of any (or none which could be associated with the appellant), that does not on the face of it mean that he did not have the piece of paper in his pocket. On any view the piece of paper was with or in a bundle of bank notes, and neither DNA traces nor a fingerprint is in those circumstances something which would necessarily have existed. The judge had to make a decision which balanced the various considerations, including the likelihood that, if he gave time in which to approach experts, then the jury would have to be discharged and a fresh jury would have to retry the case at some future date. Looking at the matter in the overall context of the issues in the case, we see no basis on which to fault the judge's conclusion, first, that the evidence regarding the piece of paper should be admitted; and secondly, that there should be no discharge of the jury or an adjournment.[20]The submission that the piece of paper assumed a different significance during the course of the trial as a result of the evidence given by Prohad and in the light of the jury's question, is one with which we have essentially already dealt. In the circumstances we think that there is no risk that the jury can have thought that the paper had been written by the appellant. Likewise, the criticisms of the judge's summing-up, although we agree that it would have been better if he had dealt specifically with the police evidence, are not criticisms which in our view establish any unsafety in the ultimate verdict. The judge told the jury that he was not going to sum up everything, but that they must attach significance to what they thought was relevant.[21]It is also right to look at the matter more broadly. The Crown's case rested on a whole series of points. If one looks at the summing-up on pages 13 - 16, the police observations of this appellant established involvement which is very difficult to reconcile with anything except active involvement in drug dealing. He and another man were seen to arrive together, to stay for about half an hour and to leave driving a red Mazda on one day. On 2 February he was there again driving a car, around which three or four people gather and then scatter. The police did not on that occasion see money passing or wraps passing. There was some evidence about the Mazda car in which the appellant was seen on those two days. There was a 30-day cover note which gave as an address 24 Bramble House. It is a car for which the appellant told the jury that he paid £1,000. That cover note was found inside 24 Bramble House.

The judge said to jury:

“You may think that it is something which assists you in assessing whether Mr Boksh was simply in Bramble House in his own car for the purpose of buying for himself. There it is. You make of it what you think right.”
[22]There was a further observation on 8 February which the appellant challenged. He said that the police had got it wrong. It involved, according to the police, the appellant coming out of the flat at 24 Bramble House, going up to the top and then coming back. At the top was a flat belonging to a lady, Linda Clarke. The police said that a little later Prohad went out and came back after fourteen minutes. The appellant then left again and was away for eight minutes and came back. Then five minutes later the police went in. So the Crown case on that basis was that the appellant was apparently left alone in charge of the flat and in possession of considerable quantities of drugs. The appellant said that the observations were wrong. Then there was the fact that the appellant's name (written by Prohad) was on the documentation found in the flat. His name was there in circumstances which the jury must have thought were not satisfactorily explained. It was on documents which on their face are indicative of drug dealing and suggest that he was receiving and dealing with certain quantities.[23]The appellant's profile was on two packs of drugs -- one on the fireplace and one under the bed. He gave the explanation which we have mentioned, but the jury must have thought that that was not plausible. He had quite a substantial amount of cash on him. Prohad's evidence was positively that the appellant was a runner, part of the business being carried on from these premises.[24]Finally, after conviction the appellant admitted liability on two occasions: once to the maker of a pre-sentence report and once to counsel who mitigated in open court on that basis. Now the appellant seeks to say that that was all lies to gain a lower sentence. But the admissions were in clear terms, accompanied by full and on the face of it convincing explanations as to his involvement in dealing.[25]It seems to us in the circumstances, looking at the matter overall, that there is no unsafety about this verdict. It is clearly unfortunate that the police failed in their duties regarding the notation of the contents of exhibits and that this only came to light during the trial. We would not, however, fault the judge's decision to admit the material or to refuse to discharge the jury or to adjourn. Nor do we consider that any unfairness resulted during the trial. We have observed that the summing-up could on one point have been fuller and should, in our view, have been; but, viewing the matter overall we do not consider that that is a point which affects the safety of this verdict or the fairness of the trial in any way. We are left in no doubt about the appellant's guilt. This appeal is dismissed accordingly.