Clarke, Re [2016] EWCA Crim 2228

Case No 2015/04715/B1[2016] EWCA Crim 2228
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday 14 th December 2016
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE BURNETT
MR JUSTICE WYN WILLIAMS
and
MR JUSTICE SUPPERSTONE
Between
R E G I N ACrownv
Between
JONATHAN THOMAS CLARKE
Computer Aided Transcription byWordwave International Ltd trading as DTI165 Fleet Street, London EC4A 2DYTelephone No: 020 7404 1400; Fax No 020 7404 1424(Official Shorthand Writers to the Court)
Mr O Cook appeared for ApplicantMr D Lees (Solicitor Advocate) appeared for Crown
J U D G M E N TWednesday 14 th December 2016
[1]On 27th January 2015 in the Crown Court at Manchester before His Honour Judge Leeming and a jury the applicant was convicted of possession of just under a kilogram of heroin with intent to supply. On 26th March 2015 he was sentenced by the trial judge to eight and a half years' imprisonment and ordered to pay the appropriate victim surcharge.[2]The applicant's application for an extension of time (seven months and two weeks) in and to apply for leave to appeal against conviction has been referred to the full court by the single judge.[3]The applicant was one of three defendants on an indictment. The others were Pinky Singh and Sony Khan. Singh was charged with being concerned in the supply of the drugs which the applicant was said to have had in his possession with intent on 17th June 2014. She was also indicted on three other drugs offences. Sony Khan was charged on a single count of possessing cocaine with intent to supply on a later date. He did not feature in the trial. The applicant was tried only with Singh. She was convicted on all counts. Another person said to have been connected with the supply of the heroin which concerned the applicant was a man called Qadir Hussain. He pleaded guilty to conspiracy to supply that heroin on a separate indictment.[4]Qadir Hussain and a number of other men had pleaded guilty to that conspiracy. It extended over a wide time period and concerned the supply of drugs in the Manchester area on a commercial basis. As we have indicated, the conspiracy included the events of 17th June 2014, which are those which concerned this applicant. On that day he travelled in a car with his girlfriend and her father, Ian Graham. They were joined in that car for a period of about seven minutes by Hussain. A subsequent analysis of telephones showed that before Hussain had joined the applicant and the others in the car, a telephone attributed to Hussain was in repeated contact with a telephone linked to Singh and then to a telephone found in the car. It was the prosecution case that that was the applicant's phone.[5]The car was followed by the police who had Hussain under surveillance. After it stopped, the applicant was observed to run away from the car carrying a package in his left hand on which he was wearing a latex glove. He ran for about half a mile, during which he was chased by a police officer. It was that package which, in due course, was subjected to analysis and found to contain 980 grams of heroin of about 50 per cent purity.[6]The prosecution case was that Singh had arranged for the applicant to collect a parcel of drugs from Hussain. That case had five essential features:(1) The admission by Hussain of his involvement in the business of supplying that heroin to others;(2) Telephone contact on 17th June 2014 between the phones we have mentioned (the number of the telephone in the car attributed to the applicant ended in 497);(3) The attribution to the applicant flowed from the fact that the phone had on it a number of calls and text messages from his girlfriend's telephone. Further, the number of the 497 phone was found in his girlfriend's phone under the name "Gorgeous". It was also in her father's phone under the name "Jonathan".(4) The significance of the applicant running from the car with the package, wearing a latex glove; and(5) Inferences from the applicant's failure to mention when interviewed the involvement of Ian Graham in the arrangements of 17th June 2014, that the telephone ending in 497 recovered from the car was not his; and that the package with which he eventually ran away must have been in the car when he got in. The judge gave an extensive and meticulous direction relating to the inferences that the jury might draw from that last matter.[7]The applicant readily accepted the chronology of events which were set out in detail as having occurred on 17th June 2014. His case was that the meeting arranged through Singh was not with him, but with Ian Graham. The applicant suggested that the meeting was to discuss the purchase of a car. He (the applicant) knew nothing of drugs. He denied that the telephone ending in 497 was his. He accepted that he ran from the car carrying a package, but he denied that he knew or suspected that the package contained illegal drugs. He said that he had been given the package by Ian Graham in a rush when the car was stopped by police and was simply told to get rid of it.[8]The jury was thus concerned with two central issues. The first was whether the applicant had the relevant knowledge that the package he was carrying contained drugs. The second (if that question were answered in the affirmative) was whether he intended those drugs to be supplied to others. It was in those circumstances that section 28(2) of the Misuse of Drugs Act 1971 came into play. It provides:
"Subject to subsection (3) below, in any proceedings for an offence to which this section applies, it shall be a defence for the accused to prove that he neither knew of, nor suspected, nor had reason to suspect, the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged."
[9]The effect of this reverse burden of proof clause was considered by the House of Lords in R v Lambert [2002] 2 AC 545. The question was whether it was compatible with article 6 of the European Convention on Human Rights to impose a legal burden of proof on an accused in this way. The House of Lords concluded that the provision could be read compatibly with the presumption of innocence guaranteed by article 6, as imposing an evidential rather than legal burden on the accused.[10]The grounds of appeal advanced in this application are:(1) Judge Leeming QC failed to direct the jury correctly on the burden and standard of proof.(2) Judge Leeming failed to direct the jury to consider the possibility of a conviction for simple possession of diamorphine rather than possession with intent to supply. The grounds were supported by a comprehensive Advice on Appeal settled by Mr Johnson QC. This morning the applications have been argued on behalf of the applicant by Mr Cook, who has presented all arguments with commendable clarity and realism.[11]We start by summarising our conclusions on the grounds that we have identified. On the first ground, we have concluded that, whilst the directions given by the judge did not accurately reflect the nature of the evidential (as opposed to legal) burden placed upon the applicant, he nonetheless made it abundantly clear that it was for the prosecution to make the jury sure that the applicant knew or suspected that the package contained illegal drugs. In our view, the confusion in the directions could not possibly have misled the jury in the task upon which they were engaged. Whilst it is certainly arguable that the direction was wrong in parts, we do not consider it arguable that the conviction on that account is unsafe.[12]On the second ground, our conclusion is that simple possession was left to the jury, despite its being no part of the case advanced or argued by the applicant at trial. There was no arguable error on the part of the judge.[13]We turn to the material directions and to explain why we have reached those conclusions. The judge directed the jury conventionally on the burden and standard of proof towards the beginning of the summing-up. He said:
"The standard of proof which the prosecution must achieve before you can convict is simply this: the prosecution must make you feel sure of the defendant's guilt in respect of the count you are then considering. Nothing less than being sure of guilt will do if there is to be a conviction in this case on any count in respect of either defendant."
[14]The direction relating to count 2 was in these terms: "So turning to count 2 and Jonathan Clarke first, the [applicant] accepts that he was carrying a package in his gloved hand as he exited the Ford Focus and so that the package was in his possession. However, he denies that he knew or suspected that the package contained illegal drugs or that he intended to supply heroin or indeed any drug to another person or to other people. To be found guilty the [applicant] must not only have known that he was carrying a package containing the heroin but he must also have known or suspected the package contained illegal drugs, not necessarily that it was heroin, simply that it contained illegal drugs of some kind whether they were heroin, cocaine or even cannabis. It is a defence for a defendant to prove that he neither knew nor suspected nor had reason to suspect that the package contained illegal drugs. The law is that that is a matter for him to prove on all the evidence. However, whenever the law requires a defendant to prove something he does not have to make you sure of it, he only has to show that it is probable which means it is more likely than not that he did not know, suspect or have reason to suspect that the package contained illegal drugs, or to put it another way, the prosecution must make you sure that he knew or suspected that the package contained illegal drugs." (our emphasis)[15]The judge continued this part of the summing-up by explaining to the jury the correct approach to the question of intent. No point is taken on that.[16]He then turned to what he described as the "key questions" which the jury must consider. He said:
"So the key questions for you to consider in respect of count 2, having regard to all the evidence and my legal directions, are these: are you sure that the package recovered by the police ... contained illegal drugs? If the answer to that question is or may be no, then the defendant is not guilty of this count and you need not go on to answer the next question, but if you are sure the answer is yes, go on to answer the next question. Are you sure that the [applicant], Jonathan Clarke, knew or suspected that the package contained illegal drugs? If the answer is or may be no the [applicant] is not guilty. If you are sure the answer is yes, go on to answer the next question. Are you sure that he intended to supply all or part of those drugs to another person or other people? If you are sure that the answer to the question is yes, the [applicant] is guilty to count 2, possession with intent to supply. But, if the answer to the question is or may be no, the [applicant] is not guilty of count 2 but guilty of the less serious alternative offence of simple possession. In those circumstances your verdict would be not guilty of possession with intent to supply but guilty of simple possession."
The whole of this part of the summing-up was provided to the jury in written form. They had it with them when they retired.[17]Mr Cook rightly submits that the part of the narrative dealing with the reverse burden of proof did not suggest that the applicant merely had an evidential burden placed upon him by virtue of section 28(2). Had the judge left the matter there, the effect would have been to impose a legal burden upon the applicant. That would have been an approach inconsistent with the decision of the House of Lords in Lambert. But the judge did not leave it there. He said in terms that the prosecution "must make you sure that he knew or suspected that the package contained illegal drugs". In the passage which we have underlined in the quotation the judge prefaced that with "to put it another way". In our opinion that invited the jury to approach this question on the basis that if the prosecution was unable to make the jury sure, it would follow that the applicant had discharged the burden upon him. Mr Cook submits that the effect of the direction at least left open the possibility that the jury might have approached the question the other way around. However, we do not consider that to be a realistic submission, given the strength of the language used, and in particular the use of the word "must".[18]Furthermore, the need for the jury to be sure of the relevant matters was reinforced by the "route to verdict" part of the judge's directions. That part contains nothing which could be described as an error.[19]It follows that, whilst the directions were not in all respects legally correct, they rightly and repeatedly told the jury that they must be sure of this matter before they could convict. For this reason, in our judgment, the misdirection was immaterial.[20]We have seen that within the directions we have quoted the judge explained that if the jury concluded that the applicant had the requisite knowledge to establish possession, but were not sure that the possession was with intent to supply, they should convict of simple possession. Counsel who represented the applicant at the trial has confirmed that this possibility was not canvassed by him in his closing speech, for reasons we fully understand. Anyone concerned in trials of this nature will also fully understand. It would have been entirely inconsistent with the case being advanced by the applicant, which was simply that he was wholly ignorant of the contents of the package. He had in fact said in his evidence that he considered it might contain a gun of money. That would appear to be because he knew Ian Graham to be a criminal; but he believed him to be innocent at least of involvement in the supply of drugs.[21]The judge dealt with the point about simple possession again a little further on in his summing-up, when he helpfully summarised for the jury the verdicts open to them in respect of each of the defendants. So far as the applicant was concerned, he said:
"In relation to count 2, Jonathan Clarke, possession with intent to supply heroin, either guilty or not guilty, or not guilty but guilty to simple possession."
The essential criticism advanced in respect of this aspect of the application by Mr Cook is that, in the course of his summing-up, the judge did not tie in the evidence given by the applicant to the possibility of a conviction for simple possession.[22]The judge extensively summarised the applicant's evidence. We have also summarised the prosecution case. We note that the judge expressly directed the jury that they should take into account the telephone evidence against the applicant only if they were sure that the phone ending in 497 was his. In the course of his evidence the applicant had said that Hussain did not provide the package when he got into the car. The applicant also explained that whilst Hussain was in the car, he (the applicant) was oblivious to whatever discussion was going on between Hussain and Ian Graham. It was only when the police became involved that Ian Graham suddenly told him to "get rid" of the package which had been in the glove compartment and also threw a latex glove at him. The applicant explained that he put on the latex glove, grabbed the package and ran. He simply did what he was told.[23]In our view, it was thus entirely clear to the jury that the applicant's account had three essential components: first, that until he was told to "get rid" of the package he had no knowledge of it at all; secondly, that he did not know or suspect that the package contained drugs; and thirdly, that his only purpose was to get rid of it.[24]The jury had to be sure that the applicant was in possession of drugs with intent to supply before convicting him of the offence charged in the indictment. If they had concluded that there was or might have been some truth in his account of being ignorant of the presence of the package until he was asked to dispose of it, or that disposal and nothing more was the limit of what he intended, they could not have been sure with regard to the ingredient of the offence relating to intent to supply.[25]It is true that the judge might have spelt out with more particularity the circumstances in which the jury might be unsure of the intent aspect of the count, but in our judgment, in the context of the dynamics of this trial, it was not necessary to do so. It is no criticism that he did not. The matter was very properly left to the jury by the judge, despite its forming no part of the applicant's case. The directions on the alternative verdict are not criticised. They were correct. They appeared in the "Route to Verdict", with which the jury retired. In our view, there is no arguable error in connection with this aspect of the case.[26]We have dealt with the substance of the matter without hitherto considering the long delay in bringing this application. Had we concluded that the conviction was arguably unsafe, we would have extended time. The period of delay has been fully accounted for in the statement from the applicant's current solicitor. But, having concluded that the grounds advanced on behalf of the applicant could not lead to a conclusion that the conviction is unsafe, we refuse the application to extend time and refuse leave to appeal.