Brown, R v [2008] EWCA Crim 369

Case No 200702057 D1[2008] EWCA Crim 369
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 12th February 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE THOMAS
MR JUSTICE KING
THE COMMON SERJEANT
HIS HONOUR JUDGE BRIAN BARKER QC
(Sitting as a judge of the Court of Appeal Criminal Division)
Between
R E G I N ACrownv
Between
ANDREW BROWN
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr C Burton appeared for AppellantMr S Requena appeared for Crown
Judgment

LORD JUSTICE THOMAS:

[1]On 1st March 2007, at the Crown Court at Ipswich before His Honour Judge Devaux and a jury, the appellant was convicted of attempting to possess a Class A controlled drug (cocaine) with intent to supply. He was sentenced on the same day to eight years' imprisonment.[2]Issues[3]He appeals by leave of the single judge on two points: first, in relation to the bad character direction and, secondly, the way the judge dealt with the fact that there was before the jury the co-defendant's basis of plea; the co-defendant, Knights, had pleaded guilty on that basis, but at the time of the appellant’s trial no determination had been made as to the acceptance of the basis of plea.[4]The facts[5]The facts can be set out in short order. On 16th March a customs officials in the Federal Republic of Germany intercepted a package in a yellow jiffy bag at Frankfurt Airport. The package came from Peru. It was addressed to "A.Brown, 6 Middleton Close, Ipswich, IP2 0RA". The package was handed to police officers at Ipswich and examined by forensic experts. It was found to contain 476 grams of cocaine at 83 per cent purity. Its street value was in the order of £163,000.[6]On 26th March an exact copy of the package was recreated and a tracking device installed into it. On 27th March, at 7.41 am in the morning, an undercover officer referred to as "Adam" delivered the package to the appellant at his home address. It appears that he woke the appellant up. The appellant took the package from Adam. Later that day at 4.46 in the afternoon, when the appellant was not at home, his co-accused Knights collected the package. The appellant and Knights were both arrested on 28th March.[7]The co-accused pleaded guilty on the basis to which we have referred and to which we have made brief reference; we will set it out in full in due course.[8]The defendant was interviewed following charge. He said during the course of that interview:
"I'm not 100 per cent sure I got a package, and if I did I didn't open it. If there were any drugs I would've told the police"
. It was the appellant's case that he was particularly tired and stressed during the course of that interview because he was contemporaneously being tried at Ipswich Crown Court for an offence of occasioning actual bodily harm.[9]It was for that reason, to explain the circumstances in which he had said what he had said in interview, that the appellant put before the jury his previous convictions. These included not only the matter to which we have referred and of which he was convicted, but offences of excess alcohol, dangerous driving, using abusive words, assaulting the police and criminal damage. There were no previous offences in relation to drugs.[10]The defence case[11]The defence case was that the appellant had not expected a package and he had not entered into any arrangement with Knights to receive a package on his behalf. He did not know that the package contained cocaine.[12]He gave evidence in his own defence that he had been “set up”. He believed the package to be work-related because he was a self-employed electrical contractor who often had packages delivered to his address; they would normally be put in the garage. On the day in question he had left the key to the garage under the mat. He had been at Ipswich Crown for his trial for the offence of assault to which we have referred and things were very chaotic, but he accepted he may have taken delivery of the package as the only other person in the house that morning was his former girlfriend. After the appellant left the house he was aware that Knights went to his house that day. He had spoken to Knights that morning as they had been friends for 20 years and played golf. Knights had wished him luck with his trial and there was no mention of any package. When he was arrested he was shocked and bewildered. It had not occurred to him that the package he had accepted might have contained illegal drugs or that Knights had collected the package from his address. He was provided with the services of a duty solicitor and did not really understand what was going on. He was also tired from having spent time at court in relation to the offence of assault and maintained he was scared and confused in interview which accounted for his probably not telling the truth about receiving the package. His solicitor had advised him to answer: “no comment”. He was fearful that if he admitted receiving the parcel, his explanation that he knew nothing about its contents would not be believed.[13]As we have set out, there are two issues before this court, and we will deal with each in turn before turning to whether our decision on them affects the safety of the conviction.[14]The Bad Character Direction[15]We have already stated that the defence wished to have the previous convictions put before the jury to explain the circumstances of the interview. It is, we think, important that that fact should have been at the forefront of the judge's mind when he came to direct the jury. The direction he gave was the following in explaining why the jury knew of the previous convictions:
"Now you do know about the defendant's past history so far as the court is concerned, and you know about it because he has told about it and because [counsel for the appellant] asked [the police constable] about it. It is important you should understand why you have this evidence and how you may use it. You must not convict him because he has been in trouble in the past. However, you may use the evidence of his bad character, if you think it right, when deciding whether or not the defendant's evidence to you has been truthful because a person with a bad character may, and I emphasise 'may', be less likely to tell the truth. It does not follow that he is incapable of telling the truth. Ultimately it's a matter for you to decide to what extent, if at all, his character helps you when judging his evidence. Bear this in mind, that he has no convictions for drugs or drug related offences"
. It is submitted on behalf of the appellant that the judge should have explained the relevance of the conviction to the jury.[16]When this learned and experienced judge gave his direction to the jury he did not have the benefit of the decision of this court given by Lord Chief Justice in Campbell [2007] EWCA Crim 1472. As the Lord Chief Justice made clear in the course of that judgment, in passages that are now well-known, it is incumbent upon a judge to explain to the jury the relevance of the previous convictions and why they have been admitted into evidence. As is clear from a number of decisions of this court to which it is unnecessary to refer, if previous convictions or other evidence of bad character have been admitted for one purpose, they can properly be used for any purpose. It therefore seems to us that the learned judge should have explained the relevance of the convictions in very simple terms, namely that they had been put before the court to explain the reason why the appellant said he was confused, bewildered and might have told a lie to the jury. He did not, as is apparent from the quotations from the summing-up that we have read, do so.[17]The judge is also criticised because he gave a direction on credibility; he said that the jury could use the evidence of previous convictions in deciding whether the evidence given was truthful.[18]There are of course observations in Campbell as to the circumstances in which a judge might, in his discretion, wish to do so. Plainly in some cases they may be relevant to the truthfulness, and in this case it seems to us that, in the light of the fact that he was convicted in relation to the assault offence, this was a case where we cannot say that it was wrong for the judge to have said that once these convictions were before the jury they could be used for the purposes of assessing the truthfulness of his evidence.[19]We therefore only accept in part the submissions made on behalf of the appellant.[20]However, even though the judge should, if he had had the benefit of the decision of this court in Campbell, have drawn to the jury's attention more fully, in very simple terms, the reason why the evidence had been admitted, it is quite clear that it must have been obvious to the jury why the evidence had been admitted. We say that for two quite separate reasons: first, this was plainly something that the jury had been told by the defence and the appellant and must have realised, but secondly, and more importantly, although the judge did not explain the relevance when dealing with the previous convictions in the passage from his summing-up which we have set out, he did point out at subsequent passages in the summing-up why the defendant was relying on his previous convictions; and that is that he was bewildered and shocked and tired as a result of his court appearance that day and did in consequence not answer questions in his interview truthfully.[21]That is the first point that is taken. We shall return to consider the effect of the judge's failure expressly to deal with the issue of relevance in relation to his direction on the reason why the convictions were admitted when considering the overall safety of the conviction.[22]The direction in respect of the basis of plea[23]We turn to the second point in the appeal. Paragraph 29 of a document that was placed before the jury headed "Admissions," read as follows:
"On the 26th February 2007 Anthony Knights pleaded guilty to a charge of possessing controlled drugs of Class A, namely 476g cocaine, with intent to supply it to another. His plea of guilty was on the following basis: 'Mr Knights has, on a number of occasions, bought sexual stimulants (similar to Viagra but in gel form and with a different trade name) in Spain and has given away and sold these to friends in the UK. In Spain they are inexpensive compared to the UK. During a conversation in a bar in Javier, a man whom he knew told him that he could get the chemical found in sexual stimulants and asked Mr Knights if he could provide an address to which a quantity of this could be sent. Mr Knights gave Brown's address as his 14 year old son was frequently at his address. He believed that the package would be sent from Spain. He collected the package from Middleton Close and later took it to his home address where it was left at the rear of the property awaiting collection as agreed. He had no knowledge the package would contain Class A drugs and he had not conspired to take delivery of or supply Class A drugs. The basis of plea was not accepted by the Prosecution."
The remaining paragraphs in the document headed "Admissions" appear all to be the kind of admission that one would expect to find in the statement of formal admissions under section 10 of the Criminal Justice Act 1967. For example, they deal with the way in which the package had been sent and intercepted; those were ordinary standard admissions and wholly and entirely appropriate for inclusion in a document of this kind. However, it is clear to us that the inclusion of paragraph 29 in the document headed “Admissions”, in the terms in which it was, took place without sufficient consideration being given as to the status of this paragraph when placed before the jury. It appears counsel for the Crown thought Mr Knights might be giving evidence for the defence but that was counsel for the Crown's error, as counsel for the appellant has assured us that he gave no such indication that Mr Knights was to be called. Furthermore, although there may have been a fait accompli as far as the judge may have been concerned if this paragraph was put before the jury without being shown to him, nonetheless when it was clear that Mr Knights was not going to give evidence then the status of this paragraph should have been the subject of discussion before speeches and before summing-up.[24]It seems to us that the only legal basis on which the matters set out in the basis of Knights’ plea could have been put before the jury was on the basis of section 114(1)(c) of the Criminal Justice Act 2003. That section provides:
"In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if ... (c) all parties to the proceedings agree to it being admissible..."
[25]It is plain that the reason why the appellant wanted this basis of plea put before the jury was because he wanted it put before the jury so that they could accept it as evidence of the facts stated therein which the appellant believed would help him in his defence. This was not put in, and it seems to us difficult to see how it could ever have been put in, to explain the plea of guilty, which would have been admissible under section 74 of the Police and Criminal Evidence Act 1984.[26]What

the judge said in the summing-up about this was as follows:

"... why do you know about it? Well, you know about it, and the only reason you know about it is to remove any question in your minds as to why you are not also trying him [that is Mr Knights]. The fact that [Mr Knights] has pleaded guilty is now known to you, but it can have no bearing in your decision, the fact of his plea can have no bearing in your decision in the case of this defendant. The prosecution has to prove its case against this defendant so that you are sure of his guilt just as you would have had to if Mr Knights had not pleaded guilty. And, as a matter of law, I direct you to ignore the basis of plea put forward by Mr Knights, not just because it's not been accepted by the prosecution but because it's not been accepted by the defence either, or at any rate it's not accepted that this business about Viagra could in any way apply to this defendant. Suppose that both men were being tried together and suppose that Mr Knights had implicated this defendant in some way in the course of his interview, I would have directed you that what Mr Knights said in interview could not be used as evidence against this defendant who wasn't there at the time to contradict it or qualify it and so on. And really there is not very much difference between Mr Knights saying something in interview and Mr Knights saying something as the basis of his plea. So you know of his plea of guilty to stop you wondering about him, and that's the only reason you know about it. Please don't use it for any other purpose in this case."
[27]It seems to us clear that, as the only basis upon which the basis of plea was before the jury was that it had come in under section 114(1)(c), it was incumbent upon the judge to have explained to the jury the fact that this was hearsay evidence and the use they might make of it.[28]It was submitted by the appellant that the evidence was powerful evidence to support his case that he was not involved at all because there is no reference in Mr Knights' basis of plea to him having informed the appellant about the package; secondly, that it might seem odd that a consignment, if it contained Class A drugs of the quantities involved (which would be extremely valuable) would be left at the premises without any warning or notification having been given to Mr Knights. The fact that it was some form of sexual stimulant of much less value would make it explicable. The basis of plea, as we understand it, was put forward by Mr Knights as a defence to the case because the chemical contained within it which was similar to Viagra was said to be a Class C drug.[29]It seems to us that, given the reasoning that the appellant put forward and given the only basis upon which we think Knights’ basis of plea can possibly have been before the jury, the judge should have given a direction on hearsay. Therefore the failure to give that direction was, in our view, an error.[30]The safety of the conviction[31]But the real question is, do either of these matters to which we have referred, namely the fact that the judge did not properly explain the relevance of the previous conviction to the jury and the failure to give a hearsay direction in relation to the basis of plea, affect the safety of the conviction?[32]Our answer is firmly "no". As to the first point, as we have already endeavoured to point out, the judge made it abundantly clear in later passages in his summing-up that the appellant was relying upon the trial for assault at the Crown Court on the day of his interview to explain his confusion. That point was before the jury, and although it should have been explained to the jury when dealing with previous convictions, we have no doubt that the point was plainly obvious to the jury.[33]Secondly, as regards the basis of plea, we are firmly of the view that, if the judge had given a direction in respect of the hearsay statement, it would have been extremely damaging to this appellant. This can be illustrated by one part of the direction which the judge should have given. The judge would have pointed out to the jury that the weight that could have been attached to Knights’ basis of plea had to be judged by them against the fact that Mr Knights had not come to give evidence. It was perfectly obvious that Mr Knights was in the country and was available to give evidence. It was obvious that he could have given such evidence as this was evidence he was proposing to give at a future time to the court. The direction to a jury that the account was untested in cross examination and there was no explanation as to why the account was not given to the jury by Knights personally, in our view, would have been devastating upon the defence of the appellant.[34]It seems to us therefore that, although the judge did not receive the assistance he should have done in relation to the way in which Knights’ basis of plea came before the court and hence there was a misdirection, it in no way affected the safety of the conviction.[35]The appeal must accordingly be dismissed.