Kousar, R v [2009] EWCA Crim 139

Case No 200802340 C2[2009] EWCA Crim 139
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 21st January 2009
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE TOULSON
MR JUSTICE McCOMBE
MR JUSTICE DAVID CLARKE
Between
R E G I N ACrownv
Between
RUKHSANA KOUSAR
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 J Challinor appeared for AppellantMr L Weston appeared for Crown
J U D G M E N T
[1]MR JUSTICE DAVID CLARKE: On 17th March 2008, in the Crown Court at Birmingham before Mr Recorder Edwards and a jury, the appellant, who is 30 years of age, was convicted on counts 5 to 9 of an indictment alleging unauthorised use of a trademark contrary to section 92(1)(c) of the Trade Marks Act 1994. That section provides, as far as relevant, as follows:
"A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor - ...

(b) "

She was the wife of Mohammed Sajid, a co-defendant who also stood trial. He stood trial on all nine counts and was convicted on all counts. The appellant appeals against her conviction by leave of the Single Judge.[2]The husband was a market trader who worked on a market stall in Walsall and, on 24th May, items were seized from their stall by a police officer and forwarded to Trading Standards Officers on the basis that the goods were counterfeit goods. Those items formed the basis of counts 1 to 4, on which the present appellant was not charged.[3]On 17th June, Trading Standards Officers searched the home address, which was shared by both husband and wife and their children, and found a large quantity of counterfeit items both in the loft of the house and in a van parked outside, of which the husband was the registered keeper. Counts 5 to 7 represented the property in the van. Counts 8 and 9 represented the property in the loft.[4]The prosecution's case was that the husband was a trader in counterfeit goods which he willingly sold on his market stall. Their case against the appellant was that she was aware of the counterfeit goods because they were stored in the family home and on this basis it could be said that she also was in possession of them. It was also alleged that the items in the van were items which had been part of the stock in the house and thus that she was in joint possession also of that property, although no such allegation was made in relation to items seized from the market stall. The defence of the husband was that the goods had been in the loft and van for a number of years. The jury did not accept it.[5]The defence case for the appellant was that she was not in possession, custody or control of the items seized. She had no involvement in her husband's business and she had no knowledge that the items were counterfeit. We should add that, when in due course the defence was presented before the jury, she gave evidence of being employed in other employment altogether and being in charge of the children. The van concerned was not the family transport and she did not use that.[6]The evidence for the Crown included evidence that the husband had been apprehended and property seized and that the enforcement officer at the city council was involved in a search of the property. Fifty bags of goods were recovered from the van and 12 from the loft. The appellant on her arrest declined to be interviewed on health grounds.[7]The case was presented against her on the basis that she was jointly with her husband in possession of the items in the loft and in the van. The case was not presented against her on the basis that her husband was in possession and thus guilty of the offence as a principal and that she, the appellant, aided and abetted his possession. Only primary possession was alleged.[8]At the close of the prosecution case, counsel for both defendants submitted that there was no case to answer. As regards the husband, an evidential point was raised relating to the items upon the market stall but that is of no relevance now. As regards the appellant, the submission was that there was no evidence on which the jury could infer either joint enterprise in the husband's market business or possession of any of the goods in her car. The submission was rejected and the appeal before us is based on the ground that the judge was wrong to reject it.[9]In his argument before the judge, counsel for the defendant then, Mr Challinor, drew a distinction between the goods in the van and those in the house. He accepted, clearly rightly, that the jury could infer knowledge of the presence of those stored in the loft but not those in the van, there being no evidence that they were in fact items which had been in the house. It seems to us that there was some force in the drawing of this distinction but we do not need to deal separately with it because the core issue on possession is whether there was evidence on which the jury could infer that she was herself in possession of the goods in the loft. If there was no evidence to support that then there was none in relation to the goods in the van.[10]Counsel submitted, relying on authority, that knowledge was not enough. Either encouragement or assistance to the husband so as to set up a case of joint enterprise, or actual exercise or control of the goods, was required. Mere acquiescence was not enough. It was further argued that, even if possession on her part could be inferred, there was no evidence that she was in possession in the course of her business with a view to profit or gain. The Crown's response on the main point was that there was ample evidence of knowledge. The goods must have been stored in the house with her co-operation and permission. Reliance was placed particularly on a decision of this court in McNamara in response to the reliance placed by the defence on a number of cases, including Bland, to which we shall return.[11]As to the second point, the Crown argued that because her possession was joint possession with her husband it was inevitably joint possession in the course of a business for profit or gain. The learned recorder ruled on the submission in quite brief terms as follows. Having dealt with the submission on behalf of the husband, he said this:
"On behalf of Miss Kouser, it is submitted that in relation to Counts 5 to 9, although property was found in her loft and in her husband's van, she did not exercise a requisite degree of control over that property, and that there is no evidence to show she knew either their ultimate destination or was privy to his business activities. I have been helpfully referred to a number of authorities concerned primarily in the finding of drugs in houses, namely Searle, Bland, Conway and Burkes, and McNamara, and I am grateful to all counsel for the succinct and helpful way they have advanced their submissions. I reject both."
He then went on to deal with the submission on behalf of Sajid Hussain and went on in this way as regards the appellant:
"... as far as Ms Kouser is concerned, in my judgment the jury are quite entitled to infer (whether they do so or not being a matter for them) from all the circumstances on her part, both as to the presence of these articles in her loft and in her husband's van, and infer that that property was ultimately for sale."
[12]It is apparent from that citation that he did not in terms say what it was that the jury were quite entitled to infer, but he must have been referring to the submission that she did not exercise a requisite degree of control over the property. So, what he held was that there was evidence of a requisite degree of control over the property so as to render her in possession of that property. The Recorder did not deal at all with the subsidiary point about the items in the van as contrasted with those in the loft.[13]At the heart of this appeal, having regard to the fact that primary possession was alleged, is the concept of possession and in particular the concept of control and we remind ourselves that the wording in the Act is "possession, custody or control".[14]The Crown's argument is that, this being the matrimonial home in which the whole family lived, she was in a position to exercise control and that she had the right to decide what was and was not kept in the house. She could have required her husband to remove the goods from the house. There was, however, no evidence that in relation to these goods she ever did in fact exercise control in the sense of actually doing anything, nor indeed did she have any involvement in her husband's activities.[15]It seems to us that the high watermark of the case for the prosecution in relation to possession is what is set out in paragraph 6 of Mr Weston's helpful and concise skeleton argument which we have before us, where he sets out what in his submission was the clearest evidence from which the jury could infer:
"a. The Appellant knew of the goods in the house. b. The Appellant knew that the goods in the house were not there for any domestic purpose - the quantity was too great and they were on hangers. c. The Appellant knew that her husband was trading as a market trader. d. The Appellant knew that the stock for that market trading was the goods within the house and within the van."
We interpose to say "so far so good", but he goes on:
"e. The Appellant co-operated and allowed the goods to be in the house as they took up a large part of storage space in the house. f. The Appellant had the ability to control the goods in the home she lived [in]."
[16]We make brief reference to the authorities cited to the judge. They are decisions of this court in the context of the possession of drugs, dealing with the limit of secondary liability in offences of possession. Read as a whole, they establish the proposition set out in Professor Smith's commentary to the last of these cases, R v McNamara and McNamara [1998] Crim LR 278, of which Mr Weston has helpfully provided us with the full transcript. Professor Smith said this:
"The evidence must be sufficient to satisfy a jury either that each party was in possession with intent to supply or that someone (in the present case possibly a third party) was and the defendant not only knew that he was but also assisted or encouraged him in the enterprise."
McNamara was relied upon by the Crown in the present case to establish that the earlier decision in R v Bland [1988] Crim LR 41 was to be decided on its own facts and was limited to its own facts. The facts in McNamara went considerably further. But in our judgment nothing in either case lent support to the contention that "ability to control", in the sense in which those words are used by the Crown here, is enough. Control, in the sense of ability to demand that the property be removed or ability to remove it oneself, is in fact no more than knowledge and acquiescence. That is not enough. There are earlier decisions that were cited to the judge: R v Searle [1971] Cr.App.R 592 and R v Conway and Burkes [1994] Crim LR 826. They are to similar effect and in our judgment take the matter no further.[17]To say that she had the ability to control, or the right to control, the goods in the house is no more than to say that it was her house, she lived there, she knew the goods were there; thus she had the right to demand that they should be removed, she acquiesced in their presence in the house and that was sufficient to render her in possession of them.[18]In the course of argument some discussion was engendered about the normal domestic situation: is a husband or wife to be regarded as in joint possession of items in that house which are in fact the property of the other spouse? Is a husband to be regarded as in possession of clothing and cosmetics, for example, of which his wife is both the owner and the possessor? We venture to suggest that that concept is quite inappropriate. One is not in possession of one's spouse's personal property in that sense. The term "permission" has been used, that she permitted this property to be in the house. Permission may be something more than an acquiescence but even then is not in our judgment sufficient to render the permittor a person in possession of the goods. In the field of drugs offences, there is a specific offence of permitting premises to be used for certain activities but there is no equivalent in the legislation with which we are concerned. A finding of being able to exercise a measure of control, which is the basis upon which this issue was in due course left to the jury, is not the same as a finding that she did exercise control.[19]The question can be approached from a different angle altogether by reference to the second limb of the appellant's argument before the judge: was the appellant in possession of these goods in the course of a business, because that is an element of this case. The Crown had to prove that her possession of the goods was possession in the course of a business and it seems to us that, if they could not establish that she was involved in the business as a participant, whether paid or otherwise, in the business of dealing with these goods, then they could not establish that element of their case. Thus, even if, contrary to our view, her so-called ability or right to control the goods was sufficient to render her in possession of them, this still did not suffice to establish that further element of these offences. Our conclusion, therefore, is that this appellant in truth did not have a case to answer and the learned Recorder fell into error in ruling that she did.[20]Accordingly, this appeal against conviction is allowed.

Cited in 2 later judgments