Lumsden, R v [2011] EWCA Crim 1707

Case No 2010/06782/D1[2011] EWCA Crim 1707
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday 21 June 2011
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE GROSS
MR JUSTICE OWEN
and
MR JUSTICE MACDUFF
Between
R E G I N ACrown- v -
Between
ADAM JAMES LUMSDEN
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)165 Fleet Street, London EC4Telephone No: 020 7404 1400; Fax No 020 7404 1424(Official Shorthand Writers to the Court)
Mr J Upton appeared for AppellantMr I Wicks appeared for Crown
J U D G M E N TTuesday 21 June 2011
[1]On 9 September 2010, in the Crown Court at Aylesbury, before His Honour Judge The Lord Parmoor, the appellant (now aged 42) pleaded guilty to one count of possessing a controlled drug of Class A (count 2, diamorphine). On 2 December 2010, in the same Crown Court, before Mr Recorder Kelly QC, the appellant was convicted on one count of possession of Class A drugs (diamorphine) with intent (count 1). He was sentenced to five years' imprisonment in respect of count 1 and no separate penalty was imposed in respect of count 2. The total sentence was thus one of five years' imprisonment. Various other orders were made which it is unnecessary to recount.[2]The appellant appeals against conviction by leave of the single judge. He also renews his application for leave to appeal against sentence after refusal by the single judge.[3]We deal first with the appeal against conviction. The facts may be shortly summarised. On 17 December 2009 the police found 58 wraps of heroin in a bag under the appellant's bed (count 1). A piece of foil was also found under the appellant's bed on which there were the burnt remains of some heroin (count 2).[4]The prosecution case was that the appellant was a drug dealer. The large quantity of drugs had been prepared in individual wraps ready to be sold. Text messages indicated that the appellant was involved in dealing. The Crown relied on text messages found on the appellant's telephone. One of the text messages referred to "1/8 of brandy". The number from which the message was sent was not stored in the appellant's telephone as a contact. Several messages related to the appellant trying to arrange a drug supply by others to his late brother. Incoming texts made reference to the availability of valium, "green stuff" or amphetamine. There was no evidence of the appellant having made any reply.[5]The Crown relied on traces of cocaine found on knives in the appellant's kitchen.[6]The defence case was that the appellant knew nothing of the bag. That he was innocent was demonstrated by the lack of any forensic evidence. Neither his fingerprints nor DNA were on the bag or the wraps. He had neither a significant amount of cash nor a dealer's paraphernalia. He had been a heavy user of heroin in the past, but that did not mean he was now a dealer.[7]The issue for the jury was whether the appellant knew about the bag.[8]The written Grounds of Appeal say this:
".... the making of [a] comment and its careful positioning, right at the end of the summing-up, unfairly invited the jury to speculate and renders their resulting conviction unsafe."
[9]The comment to which reference is made appears at page 16G of the summing-up, where the Recorder said:
"One of the things you might care to ask yourselves is: these were fairly valuable drugs, 58 wraps, why would a drugs dealer leave those under somebody else's sofa without that person knowing anything about it? You do not leave your common sense behind you when you go into the jury box; in fact you apply it."
That comment was preceded by this observation at 16F: 10. "So that was the totality of the evidence. You are entitled, as I told you, to draw inferences from it and use your common sense in relation to the evidence."

That comment was preceded by this observation at 16F:

[10]The appellant's case, most attractively argued in concise form by Mr Upton this morning, was that there were weaknesses in the Crown's case. The text messages were ambiguous; there was no forensic evidence linking the appellant with the bag containing the 58 wraps; and there was an absence of signs of high living or a dealer's paraphernalia. Put shortly, the Recorder's comment erred in that it invited the jury to speculate. That was not something that the Recorder should have done. In any event, the positioning of the comment was such as to render the conviction unsafe. Mr Upton said that there had been no evidence as to how the drugs came to be left where they were found, and that it was a drugs dealer who might have done so.[11]The prosecution case on the appeal before us was likewise persuasively addressed by Mr Wicks to whom we are grateful. We know that he has only come into this matter at short notice; his submissions were none the worse for that. The underlying point made by the prosecution in writing was this. They emphasised the situation when the police arrived. The appellant was lying on the sofa-bed in the bedroom of the maisonette. He was taken into the bathroom to be searched and the police then found the drugs under the sofa-bed. The foil which contained the heroin, in respect of which the appellant pleaded guilty to possession, was approximately five inches away from the blue package which contained the 58 wraps. The prosecution underlined that at the time of the search the appellant was the only occupant of the property: a one-bedroomed maisonette comprising a living room, kitchen, bathroom and bedroom.[12]In developing the Crown's position this morning, Mr Wicks posed the question: was the Recorder's observation within or without permissible bounds? He invited us to address that question both with regard to the comment in its own terms and with regard to the summing-up as a whole. So far as concerns the comment in its own terms, the language had not been extravagant, even if the timing had been less than ideal. The summing-up as a whole had shown a very fair approach; it amply canvassed both sides of the argument. The Crown's case had been a good circumstantial case and nothing flowing from the comment rendered the conviction unsafe.[13]Mr Upton, in reply, observed that the very fairness of the summing-up (apart from the comment) highlighted the jarring nature of the comment.[14]Although the difference between proper inference and impermissible speculation can on occasions prove a fine distinction, we are satisfied that in terms of inference (as opposed to speculation) this comment was on the right side of the line. It was a fact in evidence before the jury that the bag containing the 58 wraps was found under the appellant's bed. No speculation was involved in that. What inference, if any, was to be drawn from the presence of the package underneath the appellant's bed and in close proximity to the drugs of which he admitted possession? That question did not arise in a vacuum. The appellant lived alone and in small premises. For the appellant's account to be possibly correct, someone would have had to have abandoned this valuable package there without his knowledge. Given the nature of the wraps and their packaging, it was an obvious inference that the only person to have left it there would have been somebody dealing or involved in the dealing of drugs. The Recorder was entitled to flag that matter for the jury's consideration, provided that he left the answer to them, which he was careful to do. The point is a short one. On the straightforward ground that the substance of the comment was not improper, the appeal against conviction, as it seems to us, must fail.[15]For completeness though, we add this:(1) The timing or positioning of the comment was unfortunate. All in all, the summing-up would have lost nothing if the comment had not been made; and, if it was to be made, it would undoubtedly have been better made somewhere else.(2) Even if, however, either the comment or its positioning was improper, on all the facts and circumstances of this case we have no doubt whatever as to the safety of the conviction. For our part, we are struck (apart from all other considerations) by the proximity of this package to the foil of which the appellant was well aware. Despite some gaps in the prosecution case, it remained, as Mr Wicks summarised it, a good circumstantial case. The appeal against conviction is accordingly dismissed.[16]We turn to the renewed application for leave to appeal against sentence. Again with attractive brevity Mr Upton submitted that the sentence was manifestly excessive. He pointed to the absence of a pre-sentence report. The applicant is a man who has changed his habits. Having regard to personal mitigation, the applicant's life having improved for the better, the quantity of the drugs (12.7 grams) and the purity of the drugs (which remained unknown), the sentence was too long and there was room for reduction.[17]We agree with the observations of the single judge in refusing the application. The sentence passed was plainly in the right bracket. A pre-sentence report would have added nothing. The Recorder had heard the trial. No credit was available for a plea of guilty. Personal mitigation, such as it was, did not begin to suffice to require the matter to be placed in some lower bracket.[18]In the circumstances, and noting the applicant's numerous previous convictions, including convictions in respect of the supply of drugs, we have no hesitation in refusing the renewed application for leave to appeal against sentence.