Tomlinson, R v [2003] EWCA Crim 758

Case No 200002223X3[2003] EWCA Crim 758
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CRIMINAL CASES REVIEW COMMISSION
Venue Royal Courts of JusticeDate Wednesday 19 February 2003
Strand,
London, WC2A 2LL
Before
LORD JUSTICE MANTELLMR JUSTICE BELLMR JUSTICE ANDREW SMITH
Between
REGINACrownSCOTT NORMAN TOMLINSONDefendant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr M Topolski QC & Mr R Price (instructed by Stephensons) for AppellantMr A Gee QC & Mr M A Greene (instructed by CPS) for Crown
Judgment
[1]Between 29th October and 8th November 1991 Scott Norman Tomlinson stood trial at Manchester Crown Court on an indictment charging him with possessing cocaine with intent to supply (ct.1), possessing a sawn-off shotgun (ct. 2), possessing two hand guns (ct. 3), possessing a pistol (ct.4) and reckless driving (ct. 5). Also standing trial and jointly charged on counts 1 to 3 was Scott Tomlinson’s step-sister, Michelle Cole.[2]Before the trial got underway an application was made for count 5, to be tried separately. The application was refused.[3]In the event Scott Tomlinson was convicted on all counts save for count 4, on which he was found not guilty by direction of the judge.[4]Michelle Cole was acquitted altogether.[5]Having made a number of complaints to the Police Complaints Authority, Scott Tomlinson sought and obtained leave to appeal. His grounds included a complaint that the reckless driving offence had been wrongly joined with the other charges in the indictment. In the event that ground was not pursued. The only grounds relied upon at the hearing of the appeal, which took place on 30th and 31st January 1995, were that the trial judge should have acceded to a submission of no case to answer and, having regard to certain unsatisfactory features of the evidence, notably concerning the treatment of exhibits, the conviction should be set aside as unsafe and unsatisfactory.[6]The appeal was dismissed, but the Court went on to say:
“However, we cannot leave this case without expressing great concern at the consequences of the slip-shod way in which the vital exhibits were identified, handled and documented by the police. Those matters called for scrupulous and meticulous care which they did not receive. The result has been that inordinate time was taken up at the trial investigating the discrepancies, which ought not to have occurred, and then much time and effort was spent by the Police Complaints Authority investigating the appellant’s complaint. Finally the public have been put to the expense of this appeal. The defence can scarcely be blamed for investigating those matters, they were entitled to test the reliability of the police evidence and submit, as they did, that if a number of discrepancies occur, it is unreliable.”
[7]The appellant, as Scott Tomlinson had become, was not prepared to accept the decision of the Court of Appeal. He wrote to the court; he wrote to the Home Office; he wrote to his Member of Parliament. Eventually the matter came to be considered by the Criminal Cases Review Commission. (the Commission). The Commission has now referred the matter back to this court, which, having heard argument, has taken time to consider its judgment. Before proceeding further, however, it is convenient to review the evidence given at trial.[8]The case for the Crown was that at an early hour on 25th March 1991 police officers executed a search warrant at 24 Claude Street Crumpsall in Greater Manchester where concealed beneath the floorboards of a first floor bedroom, they found a substantial amount of cocaine, the firearms specified in the indictment and a large quantity of ammunition. Many other items were seized at the same time including a number of self-seal polythene bags said to be typical of those used in the retail distribution of cocaine. Indeed, one of the self-seal bags was found to contain traces of the drug. Also said to have been recovered from the beneath the floorboards was a balaclava and three plastic carrier bags, one of which bore the legend “Ash”.[9]Michelle Cole was the tenant of 24 Claude Street, though she had been living elsewhere from a date in February 1991.[10]The following day, 26th March, armed police attempted to arrest the appellant as he drove from a car park. According to the officers they made it plain that they were police officers as was in any event obvious from their dress and insignia. According to the police evidence they shouted “armed police” and called on the appellant to stop. When he failed to do so and it was discovered that the doors were locked, a police officer tried to break the windscreen with a baton. The appellant then drove away at speed, shunting a police van aside and causing minor injuries to two of the officers. Following a high speed chase through a number of residential streets the appellant collided with two other vehicles and a pedestrian before a further collision obliged him to abandon the car. He was found hiding in a nearby shed. Four re-sealable plastic bags were found in the car as was a stock suitable for use with a firearm. We understand that this last item formed the basis of count 4 of which the appellant was acquitted on the judge’s direction.[11]In the course of a lengthy interview the appellant admitted driving recklessly but said that he did so out of fear believing that the police officers were armed criminals intent on killing him. At first he denied any connection with 24 Claude Street but, on being shown a key found on his key ring that fitted the door, eventually admitted that he had used the house for sex. The only time that he had been upstairs was to use the toilet and the drugs and guns were nothing to do with him. They belonged to some “black guys” who on one occasion had shown him the weapons when he may have handled one of them.[12]Also on 26th March the police carried out searches at a number of other addresses including that of a Ms. Jackie Ferguson who lived at 55 Mitford Street Manchester. The appellant is the father of three of Ms. Ferguson’s children, and it seems that the appellant would sometimes stay at 55 Mitford Street. Police officers claimed to have recovered from that address a number of plastic re-sealable bags similar to those found at 24 Claude Street. The police also claimed to have found similar bags at the appellant’s father’s address, where the appellant seems to have been based, and also from the address of his current girlfriend.[13]A number of fingerprints were found on the “Ash” carrier bag, two of which could be attributed to the appellant.[14]There were hairs found on the balaclava, some of which could have come from the appellant but most of which could not.[15]So the prosecution case rested upon the finding of the appellant’s fingerprints on the “Ash” carrier bag, the hairs on the balaclava, the fact that he had a key to 24 Claude Street, the fact that he had driven off rather than submit to arrest and the fact that he had prevaricated and lied in the course of interview. The evidence about finding re-sealable plastic bags at various addresses used by the appellant lost most of its force when it became clear that the bags found elsewhere were not precisely similar to those recovered from 24 Claude Street.[16]Only the fingerprints on the “Ash” bag directly connected the appellant with the prohibited items. In making his submission of no case to answer Mr Price for the appellant suggested that it was the “high point” of the Crown’s case. But he relied upon the fact that there were other unidentified fingerprints on the bag which, he suggested, made it equally likely that someone other than the appellant had been responsible for putting it under the floorboards. As we have noted, the submission failed.[17]Neither the appellant nor Michelle Cole gave evidence. A number of witnesses were called as to what happened in the car park prior to the appellant’s arrest with a view to showing, no doubt, that it was not unreasonable for the appellant to think that he was being attacked by gangsters.[18]The Commission has considered all matters raised by the appellant. The only one to cause concern has been the emergence of fresh evidence obtained in connection the appellant’s application for parole, namely, that at the time of the arrest the police had information that the appellant was armed with a hand gun and liable to use it. It has been established that such was not made known to the Defence, as it should have been, and, perhaps more to the point, had not been conveyed to prosecuting counsel. It is claimed that the undisclosed material, if known, would have added substance to the appellant’s defence of duress on the charge of reckless driving in that it would have made it less likely that the police officers would have indulged in the usual courtesies before attacking the appellant’s vehicle. Because the material could hardly be used on the trial of the firearms’ offences, it is suggested that it would have provided further support on the application to sever count 5. Prosecuting counsel has stated that had he known of the material, then most probably the application would not have been opposed.[19]In the Commission’s view as contained in paragraph 11.4 of the Statement of Reasons:
“It is not possible to be certain of the trial judge’s decision on any application to sever in those circumstances, or of likely impact on the jury if the charge of reckless driving and the evidence relating to the arrest was not before them. As it was, the conviction was a 10:2 majority verdict only. It is perhaps relevant to recall that the only direct evidence to link Mr Tomlinson with the items found on the search was fingerprints on the “Ash” bag which itself contained only DIY material, and no drugs, bullets or other illegal material.”
It was for that reason alone that the case was referred and has provided the only ground of appeal to be argued before the court.[20]In our view the Commission’s concern and the appellant’s argument rests upon a fallacy which was identified by the single judge who first refused leave to appeal. It is assumed by the Commission that, given severance of count 5, the evidence of the arrest and the reckless driving would not have been available in the trial of counts 2 to 3. It clearly would have been available, and we go further and suggest that, given the defence of duress, the evidence of the finding of the guns and drugs would have been admissible on the reckless driving. Since Mr Topoloski QC accepts that the fresh evidence, of itself, could not have been deployed to the appellant’s advantage, it follows that the appellant has suffered no injustice and as, at present, it is the one and only ground of appeal, it must fail.[21]However, we are troubled by certain other material unearthed by the Commission. We have mentioned that 55 Mitford Street was searched on 26th March. The Commission traced and interviewed Ms. Ferguson. Ms. Ferguson said that the “Ash” bag came from a DIY shop in Cheetham Hill and had originally contained varnish and a brush. It was not until about a week after the police search that she found that the bag was missing. She had not thought it necessary to mention that fact to the appellant’s solicitor. The Commission was able to find the DIY shop described by Ms. Ferguson and to confirm that at one time the owner had been a Mr Ash. It now transpires that some at least of the formerly unidentified fingerprints on the plastic bag are those of Ms. Ferguson. The Commission reached the conclusion, therefore, that the “Ash” bag must have come from 55 Mitford Street.[22]That is an opinion with which it would very difficult to disagree. It could open up two possibilities. The first is that the “Ash” bag was recovered by police officers not on the 25th March but as a result of their search of 55 Mitford Street the following day and had been placed with the items recovered from 24 Claude Street either by accident or by some more sinister means. Alternatively, the appellant could have been responsible for taking the bag from Mitford Street to Claude Street. If the first explanation is tenable it would surely provide a formidable ground of appeal. If it is not, and the only explanation is that the appellant was responsible for removing the bag from Mitford Street, it serves to undermine the appellant’s case that someone else may have been responsible for placing the bag under the floorboards.[23]The importance of the point did not escape the members of the Commission. They appreciated that the first explanation could not run if the bag was already in the possession of the police by 25th March. The witness who examined the bag was David Anthony Parker. He was a fingerprint officer in the Fingerprint Department of Police Headquarters at Chester House in Manchester. He made a statement on 23rd April 1991 and another on 10th May. The second statement was necessary because of the muddle referred to by this court at the earlier appeal hearing. In both statements he states that he received the various exhibits on 25th March. The items are set out on a separate sheet attached as schedule A to the statement and included as JPS 12 the “Ash” carrier bag. Schedule A, itself, is not dated. The appellant’s fingerprints were received by David Parker on 27th March but the statement does not disclose the date upon which the fingerprint impressions were recovered from the “Ash” bag. It is also right to point out as part of the general picture, that in advising for the earlier appeal Mr Price had asserted that the photographs of the items recovered from Claude Street did not show the “Ash” bag. We do not know whether David Parker gave evidence at trial and was cross-examined or whether his statement was read.[24]In its Statement of Reasons the Commission reached the following conclusion:
“Despite the poor quality of the photographs of the items seized from Claude Street, the Commission can find no evidence to indicate that the Ash bag was not taken from Claude Street on 25th March 1991. There is no evidence that it was seized on the following day from Mitford Street and Ms. Ferguson does not claim that it was taken from there when the police came on 26th March.”
It is to be noted that the Commission does not state that the evidence indicates that the “Ash” bag was taken from Claude Street on 25th March 1991 and we wonder if it would make better sense to substitute ‘Because of’ for ‘Despite’.[25]The fresh evidence concerning Ms. Ferguson’s fingerprints on the “Ash” bag has not been made a basis for referral by the Commission; nor is it relied upon as a ground of appeal.[26]It may be that having read this judgment those representing the appellant will wish to make an application for leave to argue a further ground of appeal or ask for a direction under section 23A of the Criminal Appeal Act 1968. Without giving any indication of the likely outcome or, indeed, offering any encouragement, we would be disposed to entertain such an application if made. For that reason we suspend our judgment and for the time being refrain from dismissing the appeal.[27]Today we have been informed by Mr Richard Harvey of counsel who now represents the appellant, that it is not intended to apply to raise any further ground of appeal. Accordingly this appeal must be dismissed.