Baker, R v [2009] EWCA Crim 535

Case No 2008/04782/B4[2009] EWCA Crim 535
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday 26 February 2009
The Strand
London
WC2A 2LL
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)
MR JUSTICE CHRISTOPHER CLARKE
and
MR JUSTICE HOLROYDE
Between
R E G I N ACrown- v -
Between
DARRYL BAKER
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)
Mr A Wright appeared for AppellantMr G A J Hooper appeared for Crown
J U D G M E N TThursday 26 February 2009THE LORD CHIEF JUSTICE:
[1]This is an appeal against conviction by Darryl Baker who, on 7 August 2008, in the Crown Court at Kingston, before Mr Recorder Gibney and a jury, was convicted on two counts of being concerned in supplying a controlled drug of Class A (heroin) to another contrary to section 4(3)(b) of the Misuse of Drugs Act 1971.[2]Section 4(3)(b) provides:
".... it is an offence for a person -- .... (b) to be concerned in the supplying of such a drug to another in contravention of that subsection; ...."
This covers the controlled drug with which this case is concerned.[3]The appeal addresses the Recorder's self-directions when the Crown's case closed and Mr Wright made a submission that there was no case for the appellant to answer, and the Recorder's subsequent directions to the jury.[4]The facts are sad. Just after midday on 27 September 2007 the emergency services attended an address in Chessington in response to 999 calls, one of which was made by the appellant. There they discovered the body of Donna Field, the appellant's ex-girlfriend. Attempts to resuscitate her were unsuccessful. The appellant was present. He was very emotional. He explained to the police that he and the deceased had smoked heroin together the previous day at about 1pm. When he left the address at about 7.30pm she seemed all right, although a little drowsy. When he returned at around midday the next day, the premises were locked. He entered the premises via a window because there was no answer. When he eventually arrived within the house he found her body.[5]The appellant was interviewed under caution at the police station that day. He declined legal advice and assistance. In his interview with the police, which was tape-recorded and played to the jury, he said that he and the deceased had been in a relationship and that she had recently contacted him again. At that time she was not using heroin, but she asked him if he could obtain some heroin for her. He had therefore picked her up on the previous day. They had gone out together and met up with a friend of his. From the friend they had obtained heroin for £20. She paid for all of the heroin that was bought on that occasion, but the understanding was that the appellant would repay her for his share on the following day. They had smoked the heroin together.[6]It is unnecessary to set out the facts in any further detail, save to record that the concentration of drugs found in the deceased was sufficient to cause her death.[7]The Crown's case was that the appellant had introduced the deceased to the individual who had sold them the drugs and had been concerned in their supply.[8]At the close of the Crown's case it was submitted, unsuccessfully, that there was no case to answer. Following the ruling, the appellant elected not to give or call any evidence. He relied on the account he had given to the police in his interview. The case advanced on his behalf at trial was that he should be regarded as no more than a consumer of the heroin and that he had not been concerned in the supply of heroin to the deceased. The issue for the Recorder at the close of the prosecution's case, and the issue for the jury, was whether the appellant had been "concerned in the supplying" of the controlled drug.[9]Mr Wright will forgive us for not dealing with his two grounds of appeal separately. His first contention is that the Recorder misdirected himself in concluding that there was a case to answer; his second, that the directions to the jury which reflected the reasons for his decision to allow the case to proceed at half-time, were flawed.[10]When the Recorder first directed the jury about the ingredients of the offence he came to the words "concerned in the supplying", which, as he rightly said, were important. He reminded the jury that Mr Wright had submitted to them that they had to consider whether there was any "participation" by the appellant in an enterprise involving that supply. He then described how this particular provision was deliberately enacted in wide terms and that it was intended to cover "the great variety of activities both at the centre and also on the fringes of dealing in controlled drugs". He referred to "many links in the chain of distribution" and he added:
"You must consider whether Mr Baker was within the chain of distribution."
[11]In due course, after the evidence had been summed up to them, the jury retired. During the course of their deliberations they sent a note to the Recorder in these terms:
"We would like clear guidance on the meaning of 'being concerned in supplying ....' The words 'participation in an enterprise involving the supply ....' were used. What types of action are included and excluded from this phrase? We would like clarification of this phrase, and also the phrases 'the enterprise of distribution' and 'the chain of distribution'. Can you clarify what these phrases mean?" 12. ".... the focus of your question is on the core words in the indictment, and it is imperative that we concentrate on what the charge is. The prosecution have to prove to the requisite standard as it says here [and he dealt with the burden of proof] that the defendant was concerned in the supplying of those drugs to [the deceased]. So you ask yourself, what does that mean? You have to consider whether there was any participation by the defendant in an enterprise involving such supply. Well, just pausing there for a moment, the word 'enterprise' has its ordinary meaning of activity, or a business, there need be no formal structure to it."
He concluded his directions by pointing out that the provision was: 13. ".... designed to catch any person who is concerned at any stage in the process of supplying to others, from the beginning of that process to the end. So you must consider the evidence and decide whether Mr Baker was a part of that process. Or, put another way, was he within the chain of distribution?" 14. "The Crown say no, he was more than that. At the very least he is an introducer. He may be at the bottom end of the chain but he is still part of that chain of distribution." The final direction was: 15. "Only if you find that he was part of that process or within the chain of distribution could you properly return verdicts of guilty." The jury retired again and in due course returned the verdicts which found the present appeal against conviction.[12]It is clear from the transcripts that in structuring his directions to the jury in the way in which he did, and in directing himself when dealing with Mr Wright's submission that there was no case to answer, the Recorder had in mind two authorities from Scotland: Kerr v Her Majesty's Advocate 1986 JC 41 and Her Majesty's Advocate v Grant [2007] HCJAC 71. The Recorder's attention was also drawn to R v Hughes (1985) 81 Cr App R 344, where this court considered the phrase "concerned in the supplying of controlled drugs" within the context of the earlier decision, R v Blake and O'Connor (1979) 68 Cr App R 1.

He concluded his directions by pointing out that the provision was:

[13]Mr Wright's submission to the Recorder, and to us, is that the Recorder misdirected himself and that he then misdirected the jury, in particular in his response to the meaning of the word "enterprise" or the words "participation in an enterprise". He contends that, at most, the appellant merely assisted the deceased, that he was no more than a joint consumer of the drugs, and that there is a danger that on the directions given by the Recorder the appellant was convicted on the basis of an activity inconsistent with that identified in Hughes as coming within the ambit of the offence. In Hughes, after reviewing Blake and O'Connor, Robert Goff LJ, giving the judgment of the court, said that it appeared to the court:
".... for an offence to be shown to have been committed by a defendant contrary to subsection (b) or subsection (c), as the case may be, the prosecution has to prove (1) the supply of a drug to another, or as the case may be the making of an offer to supply a drug to another, in contravention of section 4(1) of the Act; (2) participation by the defendant in an enterprise involving such supply or, as the case may be, such offer to supply; and (3) knowledge by the defendant of the nature of the enterprise, i.e. that it involved supply of a drug or, as the case may be, offering to supply a drug."
[14]The problem with Mr Wright's submission is, in the end, simple. However closely section 4(3)(b) of the 1971 Act is looked at, neither the word "enterprise" nor the word "participate" appears. The language of the subsection is straightforward. In our judgment, if a person introduces someone who wants to obtain heroin to someone who he knows is willing and able to supply it, and together they obtain heroin for which the person introduced to the vendor pays, on the basis that in due course the introducer will pay for his share, it is open to a jury to conclude that the introducer is concerned in the supplying of the heroin to the other person.

The final direction was:

[15]That approach is consistent with the earlier decision of Blake and O'Connor referred to by Robert Goff LJ in his judgment in Hughes. In that case there was evidence to show that O'Connor approached young people in the street and asked them if they liked "grass", to which one of them said, "Do you know where we can get some?" O'Connor said, "I have a friend who can fix you up. He has got a flat nearby", and so off they went together. O'Connor was overheard to say to one of the group, "It will cost you £15. Have you got enough?" The group spoke together to discover whether their financial resources ran that far, and they went on to Blake's flat. Blake said to O'Connor, "Is it shit they want?" That word was understood to refer to cannabis. This was all under police surveillance and, before long, Blake appreciated that there were policemen about. He said that he was just off to buy a newspaper and he pretended that he did not know O'Connor.[16]On those facts there was a conviction, and an appeal. It was argued on behalf of O'Connor that the trial judge had misdirected the jury. He said:
"Before Blake can be guilty of count 2 there would have to be some previous arrangement or understanding between him and O'Connor." 21. ".... what is being said is that the evidence here justified no more than a finding that this applicant O'Connor was inviting people in the street that he himself knew of a possible source of supply of cannabis."
The Court of Appeal took a robust view. It declined to give a detailed or specific formulation of the precise directions that were needed. The court saw no merit in any of the grounds and both convictions were upheld.[17]Hughes provides the genesis of the contention advanced by Mr Wright that the jury should consider "enterprise" and "participation in an enterprise". However, as we have indicated, in Hughes the Court of Appeal considered Blake and O'Connor. Nothing was said to undermine its authority or to augment our understanding of its effect.[18]In our judgment there was ample evidence for the Recorder to conclude that there was a case to answer, and ample evidence to justify the jury reaching the verdict that it did. There was no misdirection, whether we focus exclusively on the criteria suggested in Hughes or whether we return directly to the language of the legislation which creates this offence. We would caution against the danger of treating language used in the course of a judgment, which involves the interpretation of a criminal statute, as if it were the statute, or as if it replaced or amended the statute, at any rate, certainly where the statute is plain enough in its language and uses ordinary English to describe the offence. The direction given by the Recorder about the ingredients of this offence fairly left the jury to decide the issue in a way which was legally unimpeachable. Faced with that, it seems to us that these convictions were safe. Accordingly the appeal against conviction will be dismissed.