El-Ghaidouni, R v [2006] EWCA Crim 845

Case No 200503540 C4

[2006] EWCA Crim 845

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Tuesday, 4 th April 2006

Strand

London, WC2

B E F O R E:

SIR IGOR JUDGE

President of the Queen's Bench Division

MR JUSTICE MACKAY

MR JUSTICE GROSS

Between

R E G I N ACrown

-v-

Between

ABDUL EL-GHAIDOUNI

Computer Aided Transcript of the Stenograph Notes of

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MR J D HUNTER appeared for APPELLANT

MR N MATHER appeared for CROWN

J U D G M E N T

SIR IGOR JUDGE: This is an appeal by Abdul El-Ghaidouni against his conviction after a short trial, on 11th May 2005 in the Crown Court at Middlesex Guildhall, of two counts of possession of drugs with intent to supply. Count 1 related to Class A drugs (cocaine); count 2 to Class B drugs (cannabis). On 27th June he was sentenced to a total of five years' imprisonment.

[2]The single issue in this appeal arises from the fact that the trial judge, His Honour Judge Simon Smith, became ill after he had completed his summing-up, but before the jury was ready to return its verdict. In due course the appellant was convicted when the court was presided over by a different judge, His Honour Judge Fabyan Evans, who had made himself available for the purpose when he discovered that Judge Smith was taken ill.

[3]A very brief summary of the facts is appropriate. The charges arose from a search on 3rd August 2004 on the basis of the execution of a drugs search warrant at an address in Lilestone Street, London NW8. Officers from the Westminster Crime Squad, together with a drugs dog, attended those premises. Further groups of officers arrived to continue the search. In total, the police spent about ten and a half hours at the flat. During the course of this police investigation the only other person actually present in the house was the appellant, but it appears that both his parents, together with a brother and a sister, also lived there. The finds were made in the kitchen near the fridge, between a table and a cupboard. A blue plastic bag contained two slabs of resin and one sealed wrap. There were electronic scales and three rolls of clingfilm in the kitchen too.

[4]Outside the flat there was a small area, apparently for the use of the inhabitants of the flat, but which the appellant said was shared with the flat next door. There the police found a pushchair with a black bin bag in it which contained several bags of white powder. In due course, on forensic analysis, it was discovered that there were 17.7 grams of powder containing 57 per cent purity cocaine, together with 228.3 grams of cannabis resin.

[5]There were a number of other significant finds: £1,460 in a waistcoat and £1,000 in a jacket in a wardrobe; £50,000 secreted in a footstool in the living room, £10,000 of which was not found until the footstool was being examined at a laboratory; £300 in an envelope in a cabinet and £1,900 in a purse. Six mobile phones were also found.

[6]The defence case was a very simple one. The appellant denied all knowledge of drugs found in the flat. There was a suggestion that the only person who could have been involved was his, the appellant's, brother, who had been cautioned some two weeks before the raid when he was found in possession of cannabis.

[7]As it happened, and we do not need to investigate why, at trial an evidential issue of some importance was canvassed before the jury, and that arose from the difficulties which the police themselves had in finding the drugs.

[8]On the face of it, the question how well hidden the drugs were did not throw very much light, either way, on whether the appellant was responsible for hiding them, as the Crown alleged, or whether his brother may have been responsible as, at any rate by implication, if not expressly, the appellant was contending. But in the course of the trial the issue was canvassed and, as we shall see, it became an issue which was of importance to the jury.

[9]The jury retired to consider their verdicts at 12 noon on 10th May. At 15.45 they asked that they should conclude their deliberations for the day. The judge agreed. The case was adjourned until 10.30 on 11th May. It was overnight that Judge Smith became ill, and so Judge Fabyan Evans took control of the case. He sought to familiarise himself with the broad issues in the case, but plainly he could never achieve the mastery of the detail which the trial judge enjoyed. It was also apparent that Judge Smith had expressed an intention on the previous evening to give a majority verdict direction fairly quickly that morning if a unanimous verdict was not forthcoming.

[10]It seems to us, if we may say so, that Judge Fabyan Evans took the right and obvious course in making a determined attempt to try and save the trial. The discharge of the jury at that stage would have been premature, and neither counsel, again if we may say so, entirely rightly, sought to achieve the discharge of the jury. As Judge Fabyan Evans indicated, however, he was alert to the problem which might arise if the jury elected, as they were entitled, to seek further judicial guidance about the case, possibly about the law, but in particular on any evidential matters which could not be agreed by counsel.

[11]The jury were brought into court. Judge Fabyan Evans explained the problem with Judge Smith's illness and invited the jury to continue their deliberations. In due course the jury sent a note to the judge. It read:

"1. Please read to us the evidence of PC Wynne in chief and in cross-examination? 2. How long did it take to find the cannabis? 3. Where and when did police officers start searching for the drugs?"

In the absence of the jury, the judge sought the assistance of counsel, which was provided to him. However, it became apparent that the second question was not susceptible to an easily agreed answer. As the judge listened to the argument, it became increasing apparent that there were serious potential difficulties which required time for analysis and reflection. He asked the jury into court to explain that, as he had not presided over the trial, it would take a little while for him to provide the answers to their questions.

[12]In due course, after the matter was investigated, the way in which question 1 was resolved was that arrangements were made to play the tape of the short evidence of PC Wynne to the jury. After the necessary arrangements had been made, the jury was invited by the judge to listen to the full tape recording of that evidence.

[13]If that had been the only question asked by the jury, the solution achieved by Judge Fabyan Evans was admirable, practical and entirely satisfactory.

[14]The third question too, in the end, presented no particular problems. That was because

the judge was able to answer it in this way:

"I am told that the evidence was that they [that is the police officers] entered at 8.15 am, but there is no evidence as to which room was searched first so I cannot go any further as far as that is concerned."

As there was no evidence before the jury, there was nothing which the judge could remind the jury about, and so in the end that question was answered in exactly the same way as it would have been answered if Judge Smith had been available to answer it.

[15]The problem arose in relation to the second question. Despite considerable efforts by counsel on both sides, doing their best in accordance with their different responsibilities, no agreed solution could be found.

[16]In relation to question 2, it was apparent that counsel had differing recollections of the evidence, and counsel for the defendant in particular was anxious that, before the question was answered, or indeed an endeavour was made to answer it, the evidence of DC Stanley, one of the searching officers, should be listened to. The judge became rather concerned about that because, as we have indicated, this was a short case, the jury had already been considering their verdicts the previous day, and they had now been waiting for some fairly considerable time to be given the answer to all three questions.

[17]In the end, in answer to this question the judge told the jury, "Counsel consider that it is not a question which can be answered". The jury was given "answers" to two of the three questions, but in truth, in answer to the second question, no answer of any kind at all. The jury then retired. A majority verdict direction was given and in due course the appellant was convicted on both counts by a majority of ten to two.

[18]The facts that we have narrated demonstrate the nature of the problem. It is well-established that a judge should not normally be changed in the course of a trial. If there were authority needed for that self-evident proposition, we refer to R v The Crown Court at Southwark ex parte The Commissioners of Customs and Excise

[1993] 97 Cr App R 266

, a decision of the Divisional Court presided over by Watkins LJ. In his judgment, Watkins LJ said:

"It is our firm opinion that in a criminal trial there is no power to change the judge once the jury is sworn until the moment at which the jury returns to give its verdict. It is permissible, if there is a sufficient reason, such as death or illness of the trial judge, for another judge to take the jury's verdict - this has, to our knowledge, been done on several occasions - seeing that the mere taking of the verdict cannot possibly be affected, so far as the new judge is concerned and the jury too, by anything which has taken place in the trial up to that time."

On the basis of that authority, and no doubt many years of practical experience in the administration of criminal justice, Judge Fabyan Evans decided that he should make himself available to take the jury's verdict. The course was, as we have already indicated, one which we entirely support.

[19]However, we are troubled by the fact that, despite every sensible effort, the jury were not provided with an answer to the second question. Maybe, as counsel for the Crown suggests, the answer did not matter, or should not have mattered very much, if at all, but our concern arises not merely because the jury had asked the question, but because, first, it related directly to an issue which had been canvassed before them during the course of the trial and, secondly, because, as we know now on further investigation, if the answer had been given and the evidence of DC Stanley had been available, it would have tended to support, or provide some support for, the contention which the defence had been making in its arguments before the jury. If the trial had been a longer trial we have little doubt that Judge Fabyan Evans would have considered that further delay would have been appropriate, and a more detailed and lengthy investigation into these issues would have taken place. Given the shortness of the trial, he took the robust view that he simply could not keep the jury waiting any longer and that this would have been a disproportionate response to the issues which were being considered.

[20]In the result, despite the best efforts of Judge Fabyan Evans and counsel, from the defendant's point of view the absence of Judge Smith at this late stage of the proceedings may have had a significant adverse effect on the outcome. In those circumstances, we do not think that this conviction can stand.

[21]We should add that if Mr Hunter had made an application to the judge to discharge the jury before he found himself unable to answer the second question, it is perfectly apparent from the transcript that Judge Fabyan Evans would have made that order, and would have also ordered that there should be a new trial.

[22]We have considered the issue of a new trial at this stage in the proceedings. It seems a plain case for the issues to be re-canvassed before a new jury, which has the advantage of a trial judge who, happily, does not succumb to illness. In those circumstances, therefore, this conviction will be quashed and we shall order a new trial.

[23]There will be a new trial on both counts. A fresh indictment will be preferred. The appellant will be re-arraigned on that fresh indictment within, we are going to indicate, one month. There is an issue about the appellant being in custody or released on bail. We shall make a representation order for the re-trial, one counsel. The venue for re-trial will be determined by the presiding judge for the South Eastern Circuit who is responsible for the administration of criminal justice in that part of the circuit.

SIR IGOR JUDGE: Mr Hunter?

[25]MR HUNTER: My Lord, I do not know whether that order covers having a solicitor's representative at the re-trial.

SIR IGOR JUDGE: Yes.

[27]MR HUNTER: I am grateful for that issue.

[28]The only other issue, my Lord, is bail. This defendant is a young man, as far as I recollect, of previously good character. I think there may have been one offence of failing to provide a specimen only. He was on bail on this matter up until sentence, as far as I recollect the situation, and in my submission to your Lordship, there is no reason for him not to be granted bail on this occasion, subject to, if your Lordship felt it appropriate, conditions. He would live at the same address that he lived at before, namely 25 Dinton House, Lilestone Street, London NW8, along with his family. My Lord, in those circumstances I would invite your Lordships to grant bail, unconditionally initially, but if you felt it appropriate with conditions.

SIR IGOR JUDGE: What is the Crown's position?

[30]MR MATHER: The Crown would oppose the application on the basis of the strength of the Crown's case against this appellant, which must now be readily apparent to him. The amount of cash has been confiscated, but nonetheless it is clear that there was significant cash in that house at the time giving the defendant the opportunity to leave the country should he so wish, so I would oppose bail on those grounds.

SIR IGOR JUDGE: Thank you. Mr Hunter?

[32]MR HUNTER: My Lord, the cash was always available. If he was going to leave the country or something of that sort, he would have done so a long time ago, long before the trial took place. He is, as I say, a young man of hitherto essentially good character. In my respectful submission, he has had bail in the past and has complied with everything. He has never failed to attend court or keep in contact with his solicitors or take this matter seriously. In my submission, they are very sound grounds for him to have bail in this matter.

SIR IGOR JUDGE: Thank you. (The bench conferred for a short time)

SIR IGOR JUDGE: We shall refuse your client's application for bail.

[35]We have already indicated that the appellant should be arraigned within one month, and we shall ask the presiding judge of the South Eastern Circuit to see whether it would be possible to arrange an urgent hearing of this case thereafter. It should be completed in two days. Trial not more than two days?

[36]MR HUNTER: Yes.

SIR IGOR JUDGE: Very well. Thank you very much, Mr Hunter.

[38](To the appellant) Very well, your conviction has been quashed. There will be a new trial. You will be remanded in custody until the new trial takes place. I hope that will take place in the fairly immediate future.