Andrew, R. v [2010] EWCA Crim 798

[2010] EWCA Crim 798Case No 200806495/D2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 22nd January 2010
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE LAWS
MR JUSTICE BEATSON
MR JUSTICE BLAKE
Between
R E G I N ACrownv
Between
RYAN SHAUN ANDREW
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr H Ahuja appeared for AppellantMiss J Eagles appeared for Crown
J U D G M E N T

LORD JUSTICE LAWS:

[1]On 14th November 2008 at Taunton Crown Court, before Mr Recorder Still, this appellant was convicted of a single offence of possessing a controlled drug of Class A with intent to supply. On 18th December 2008 he was sentenced to 3 years' detention in a young offender institution. He appeals against his conviction by leave of the single judge.[2]At about 3.00 am on 15th December 2007 the police were called to a public house, Michael's Fun Pub at Burnham-on-Sea. They were told that a member of staff had stopped the appellant and asked him if he had anything in his possession that he ought not to have. The appellant revealed that he had 50 wraps of cocaine, 9.87 grams, with a street value of £493. The police found £80 in his possession. He worked as a kitchen assistant earning between £80 and £92 a week. The Crown case was that he had the drugs on him intending to sell them on. The defence was that the drugs were for his own use. A guilty plea to simple possession had been indicated at a plea and case management hearing on 16th July 2008.[3]The appellant's evidence was that in the 3 months before his arrest he was using cocaine at the rate of 10 grams a week. He had bought 20 wraps on the Thursday before 15th December 2007, for £350, which was a discounted price. He was to pay off the debt at the rate of £30 to £40 a week. The £80 found on him was his wages.[4]The Crown said it was nonsense to suggest that all these drugs were for his personal use. He could not possibly afford £350 a week for cocaine without selling drugs in order to fund his own habit.[5]A police officer gave evidence as to the cost of cocaine, discount for buying in bulk and the rate at which users might consume the drug.[6]The grounds of appeal all relate to the Recorder's conduct at the trial. The first ground concerns evidence about the appellant's mother's ex-partner. In chief the appellant had said he had met up with this man on the 15th and he, the ex-partner, was buying him drinks most of that evening (evidence transcript page 32H). A little later the Recorder said:
"Shall we call him by a name?" referring to the described as the ex-partner. After a follow-up question from counsel, the appellant indeed named the man "
Ashley Coombes" (transcript 34A - B). In answer to questions from the Recorder the appellant said he was with Ashley Coombes during most or all of the evening. Then in re-examination the Recorder asked a prolonged series of questions about the extent of the appellant's escalating drug use and the cost of it, culminating in the question, "What he owed when he was caught;" to which the answer at 51D was: "Just the £350." There followed this exchange: "[the Recorder is asking all the questions] Your mum's ex partner Ashley? A. Yes. Q. Was with you the whole of that Friday night up until the time that you were...? A. He wasn't with me the whole of the Friday night, I seen him when I was out. Q. You met him before you went? A. No, I met him when I was out. Q. Yes, but you went with him to the place where you were caught? A. Yeah, yeah, to Michael's Fun Pub. Q. And you were with him there throughout the time you were there? A. Yeah, yes. Q. So he could confirm that you were not dealing that night? A. Yes. Q. Is he outside? A. No, he's not present today. Q. Why is that? A. Because I haven't seen him since, because he doesn't live in Burnham, he lives out in Redmore, which is out in the sticks." Then counsel, Mr Ahuja, says: "Simply this, your Honour, of course the burden is on the prosecution of course to prove the case. THE RECORDER: It sticks out like a sore thumb to anyone that he has a complete defence from this man who could confirm he was not dealing; he was with him the whole time. MR AHUJA: Yes, your Honour, but despite that of course the burden remains on the Crown."[7]The appellant says the Recorder effectively trapped the appellant into indicating, in front of the jury, that there was a potential defence witness who could provide a complete defence if he were called. Whether or not this is properly called entrapment, in our judgment the Recorder was virtually telling the jury that it is up to the appellant to prove his innocence by calling the witness. It was quite wrong for the Recorder to behave in this way. In the summing-up the Recorder reminded the jury, about this evidence elicited by himself (see the summing-up transcript 10B - 11D). All he said by way of warning, twice, (one passage is at 5F) was that the jury should not speculate about what the ex-partner might have said.[8]The second ground of appeal complains of the judge's prolonged questioning of the appellant about his use of drugs and drug debts. The whole passage is at 49E to 51D of the evidence transcript. We have already referred to this, and will not read out the whole passage now. This was, for all the world, cross-examination on behalf of the prosecution. It very likely told the jury that the Recorder did not believe the appellant's case. He told the jury in terms in the summing-up (17C of the summing-up transcript,) that he "did not agree" with what the appellant said about his drug debts. We should note that after the appellant's evidence, defence counsel had applied to the Recorder to discharge the jury because of the questions he, the Recorder, had asked. That application was refused. No reasons were given.[9]The third ground alleges improper comments in the summing-up. It is said that the Recorder was sarcastic and hostile. Thus at the outset of his account of the Crown's case, he said this:
"So what in essence do the Crown say in this case? They say this; there is an absolute nonsense to assert that that cocaine could possibly have been for personal use. He left home, they say, with 20 packages that Friday evening; he was found with 15 perhaps six or so hours later and £50 in, sorry, £80 in bank notes as well."
Then a few lines later, 7G:
"They say it is rubbish to say that he was ever going to fund purchase of that cocaine for personal use in the way that he said he did. On the evidence, what you take of cocaine is a matter for your own personal finances. And this defendant, on the evidence that he gave you himself, is certainly no pop star in terms of his earnings. He was a part time waiter, I think, and washer up and he was earning in the region of 80, or he says on that particular week, £92 per week with about half that as free money. No way, the prosecution say could he possibly afford £350 a week for cocaine, whether it is that week or the previous week or the previous several months."
Then a little later, 8C:
"They say no drug dealer in the world, good friend, long term acquaintance or whatever he was, is going to give 4,000 or possibly even more pounds worth of credit to such a man unless he is selling for him. The prosecution points to the evidence that says that there is only a thin line between users and sellers in the drug trade, and you may think user or seller is the only way in this case makes any kind of sense, so the prosecution say."
Then lastly under this ground, 8G:
"The prosecution say it is absurd to suggest that he was snorting a whole pack in one go, as he tells you, in order to make it more credible, that five packs could have disappeared over the 20 that he went out with by the time he was searched at 2 o'clock in the morning."
[10]The fourth ground is that the summing-up was generally biased in favour of the prosecution. Clearly these grounds of appeal run into one another. After a vigorous account of the Crown's case and the passages we have already set out,

the judge at 9D merely says:

"The defence in effect say not a bit of it..."
There follows a bland account of the appellant's evidence. There was no reminder of some points made in defence counsel's closing speech, such as the absence of eye witness evidence of the appellant's supply.[11]The fifth ground complains of the judge's failure to mention in the summing-up any of the expert evidence called before the jury, much of which it is said supported the defence case that he had the drugs for his own use. Thus, Mr Morgan, the expert for the defence, gave evidence that discounts would be available for bulk purchases reducing the cost of 10.5 grams to £260 to £300. He said that 9.87 grams was not an unusual quantity for a weekend's use. A seller of cocaine in a busy venue might take several hundred pounds over 3 to 4 hours, but by contrast the appellant only had the £80 on him on his arrest. The witness also referred to the fact that no cash, scales, drugs, evidence of mobile texting indicated supply or any other kind of drug paraphernalia were found at the appellant's home. Mr Ahuja, for the Crown, pointed out that there is a passing reference in the summing-up to the want of such paraphernalia.[12]In our judgment, it is necessary to stand back and look at the Recorder's conduct of this trial as a whole, paying attention in the course of that exercise to the particular points relied on. Doing so, we are of the clear view that the Recorder behaved as if he were an advocate for the prosecution. His interventions in the appellant's evidence, which we have enumerated, were deeply prejudicial. His summing-up was unbalanced to say the least. In R v Michel v The Queen [2009] UKPC 41 Lord Brown, delivering the opinion of the Privy Council, said this:
"There is, however, a wider principle in play in these cases merely than the safety, in terms of the correctness, of the conviction. Put shortly, there comes a point when, however obviously guilty an accused person may appear to be, the Appeal Court reviewing his conviction cannot escape the conclusion that he has simply not been fairly tried..."
Later in the judgment:
"He is denied too the basic right underlying the adversarial system of trial, whether by jury or Jurats: that of having an impartial judge to see fair play in the conduct of the case against him. Under the common law system one lawyer makes the case against the accused, another his case in response, and a third holds the balance between them, ensuring that the case against the accused is properly and fairly advanced in accordance with the rules of evidence and procedure. All this is elementary and all of it, unsurprisingly, has been stated repeatedly down the years. The core principle, that under the adversarial system the judge remains aloof from the fray and neutral during the elicitation of the evidence, applies no less to civil litigation than to criminal trials. All will be familiar with Denning LJ's celebrated judgment in Jones v National Coal Board [1957] 2 QB 55, 64, a personal injury claim ending with each party complaining that he had been unable to put his case properly: 'A judge's part ... is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevances and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the role of an advocate; and the change does not become him well. Lord Chancellor Bacon spoke right when he said that: 'Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal.' The need for the judge to steer clear of advocacy is more acute still in criminal cases. It is imperative that a party to litigation, above all a convicted defendant, will leave court feeling that he has had a fair trial, or at least that a reasonable observer having attended the proceedings would so regard it."
[13]In our judgment, very unfortunately, that standard was not met in this case. This appellant did not receive a fair trial. The appeal will be allowed. We express our surprise that the Crown chose to contest the matter.[14]MISS EAGLES: My Lord, I do not seek to ask for a retrial in this matter.

LORD JUSTICE LAWS: You do not?

[16]MISS EAGLES: I do not seek.

LORD JUSTICE LAWS: Very well.

[18]MISS EAGLES: Mr Andrew however does need to be sentenced or sentence needs to be confirmed for his plea to simple possession in this case. He pleaded to simple possession of those wraps of cocaine.

LORD JUSTICE LAWS: Has he in fact pleaded to that?

[20]MR AHUJA: He did my Lord, he pleaded at the PCMH to simple possession.

LORD JUSTICE LAWS: I have a note saying he "indicated" a plea but he actually pleaded, did he?

[22]MR AHUJA: A plea was recorded to simple possession.

LORD JUSTICE LAWS: There is nothing for this court to do, is there, in relation to that? We are only dealing with the appeal against conviction on the intent to supply charge?

[24]MR AHUJA: My Lord, I have considered a paragraph in Archbold relating to the appeal court's powers. I may be incorrect about this, and I am looking at paragraph 7-107A.

MR JUSTICE BEATSON: Could you say that again?

[26]MR AHUJA: 7-107A, at page 1151.

LORD JUSTICE LAWS: Is that in the current edition?

[28]MR AHUJA: It is, yes. Page 1151, which deals with the Appeal Court's powers to deal with conviction of an alternative offence, when a guilty plea has been entered.

LORD JUSTICE LAWS: This does not apply because 4(1)(a) is not satisfied. This section applies where two or more related sentences are passed.

MR JUSTICE BEATSON: It is 3A that counsel--

[31]MR AHUJA: Yes 3AA.

MR JUSTICE BEATSON: Just above.

[33]MR JUSTICE BLAKE: A power to substitute conviction. My Lord is right, section 4 is the power to resentence. What is being invited is that we resentence to something that he has never been sentenced for. I do not think 3A is going to help you.

LORD JUSTICE LAWS: If he is to be sentenced for simple possession that is to be done in the Crown Court.

[35]MISS EAGLES: I ask that the matter is remitted back to the Crown Court for that sentence.[36]MR AHUJA: Yes, my Lord. I can confirm he did of course receive 3 years for the conviction of supply.

LORD JUSTICE LAWS: He has served 13 months or something. It may be the Crown Court feel it fit to say: no further penalty.

[38]MISS EAGLES: That is the likely outcome my Lord.

LORD JUSTICE LAWS: Subject to my Lords, if necessary, we direct that the plea to simple possession be relisted for sentence before the Crown Court. I actually do not think it is a matter for us at all. Make arrangements with the Crown Court.

[40]Beatson J is quite right. I said he gave no reasons for the ruling rejecting the application to stop the case, and I am reminded by my Lord he did not at the time but gave them, I think, later at the end of the summing-up. So, if the shorthand writer would very kindly make a note to remind me to deal with that when I correct this transcript, otherwise I will certainly forget. Thank you very much.[41]I shall also direct, subject to anything anyone has to say -- and we have discussed this -- a copy of the perfected transcript of our judgment, when it becomes available, should be supplied to the learned Recorder.