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Royal Courts of Justice

Strand

London W2A 2LL

Monday 10th March 1997

B e f o r e

LORD JUSTICE SWINTON THOMAS

MRS JUSTICE EBSWORTH

HIS HONOUR JUDGE COLSTON

(Acting as a judge of the CACD)

R E G I N A

v.

MARK THOMAS JEFFRIES

(Computer Aided Transcription of the Stenograph Notes of

Smith Bernal Reporting Limited, 180 Fleet Street

London EC4A 2HD Tel: 0171 831 3183

Official Shorthand Writers to the Court)

MR THOMAS CROWTHER appeared on behalf of the Appellant.

MR IEUAN MORRIS appeared on behalf of the Crown.

JUDGMENT OF THE COURT

(As approved by the court)

©Crown Copyright

LORD JUSTICE SWINTON THOMAS: On 31st October 1996 in the Crown Court at Cardiff before Mr Recorder Querelle the appellant was convicted on count 1 in the indictment which charged him that he did on 16th May 1996 have in his possession a controlled drug of class B, namely amphetamine, with an intent to supply to others. He was convicted on count 3 that between 1st January 1996 and 17th May 1996 he supplied a controlled drug of class B, namely amphetamine, to others. He pleaded guilty to count 2, the simple possession of a controlled drug of class B. He was sentenced to serve 12 months' imprisonment to run concurrently on counts 1 and 3 and no separate penalty was imposed in respect of count 2. He now appeals against his conviction with the leave of the single judge.

The material facts can be stated shortly. At 6.35 in the evening of 16th May 1996 the police executed a drugs search warrant at the appellant's home at Flat 2, Blackwood, Gwent. The police found a number of articles in the appellant's flat and a quantity of drugs. In addition they found a notebook with names and figures beside the names, and the evidence given by a Detective Constable Horton in relation to the notebook forms the first ground of appeal.

Mr Crowther submits that the evidence given by Detective Constable Horton ought not to have been admitted in evidence. The Crown had a full statement from her dated 18th October 1996. She began her statement by staying this:

"I am a detective constable employed by the Gwent Constabulary, currently stationed at Blackwood Police Station on the drug squad. I am an officer with over two years drug experience; having experience in the investigation and detection of drug related offences."

She then referred to the case of Bryan, decided in this court on 8th November 1984. The case is unreported but we have a transcript of it with our papers. The witness in her statement then went on to make comments in relation to the amphetamine which had been found in the appellant's flat. She says:

"I am in daily contact with persons involved in drug abuse. From information received and having knowledge of current drug trends I can say that amphetamine is sold as follows:-

Quantity Wholesale price Retail Price

1 ounce £80 - £130 £140 - £280

1 gram £5 - £10

She then describes in detail the amphetamine taken from the appellant's flat. She describes the way in which it was wrapped and its weight, and she places a value on each parcel of amphetamine. She then went on at page 3 of her statement to say this:

"There were certain items of paraphernalia found which one would expect to find at a drug dealer's address.

Those items being a quantity of plastic bags, two catalogues with cut pages and two notebooks.

I have examined extracts from these notebooks... On an entry marked Tuesday ..."

She then goes on to set out what was on the extracts from the notebook relied upon by the police. There were, first, the extract headed "Tuesday", then an extract headed "Thursday May 9th", then an extract headed "Wednesday". In relation to those extracts they appear to recite names, for example, Rob, Saffin, Nashy, Andy and the like, and immediately next to the names there is a figure, for example 40-00, 5-00 and so on. At the end of her statement Detective Constable Horton said this.

"In my opinion this [that is, as I understand it, the entry relating in particular to Wednesday] relates to the sale of drugs and lists such as these are commonly found at the home addresses of drug dealers.".

Mr Crowther makes two submissions in relation to Detective Constable Horton's evidence. He made the same submissions to the recorder on an application that her evidence should be excluded. That application was refused by the recorder and Mr Crowther submits that he was wrong to refuse it. The first submission made to the recorder and made to us is that the police officer did not have the expertise to give the opinion evidence that she in fact gave.

The question of the admissibility of expert evidence was considered by this court in Turner [1975] Q.B. 834, to which Mr Crowther referred us. At paragraph 10/69 at page 1175 of Archbold the general rule is set out succinctly. It reads:

"As a general rule, parol evidence is not admissible with regard to anything not immediately within the knowledge of the witness; he must speak of facts which happened in his presence, or within his hearing. This rule excludes both hearsay and the expression of opinion or belief. But to this rule there is a necessary exception on questions of the identity of things or persons, or the genuineness of handwriting, where the witness is qualified to express a credible opinion or belief on the subject...

In matters of science or trade, the opinion of an expert, or person intimately acquainted with it, is admissible to furnish the court with information which is likely to be outside the experience and knowledge of a judge or jury. If, on the proven facts, a judge or jury can form their own conclusions without help, then the explain of an expert is unnecessary."

As I have said, Mr Crowther submits that this witness did not have the necessary expertise. He submits that such knowledge as she did have was gained as a result of her conversations with others - police officers, drug users, drug dealers and the like - and hence was inadmissible. He says further that the jury were quite capable of forming their own conclusion and this was not the sort of evidence which falls within the exceptions to hearsay evidence. Mr Crowther readily conceded that he had not challenged the expertise of Detective Constable Horton in the sense of cross-examining her on the first paragraph of her statement where, as I have related, she sets out her experience, saying she has over two years of drug experience, of investigation and detection of drug-related offences.

In our judgment, in those circumstances the recorder was right to come to the conclusion that it was shown by the Crown that this witness did have sufficient expertise to give evidence as to her knowledge of drug-related offences, the type of article which one would expect to find in the possession of a drug dealer and evidence as to the value of drugs found in the flat of this appellant.

In Bryan at page 4 of the transcript Mr Justice Wood, who gave the judgment of the court, said:

"The view of this court is that police officers with their experience of dealing with these problems, being on the streets and with their knowledge and meeting with those having a drug problem and those pushing the drugs, have a very wide experience and can give evidence of fact of what takes place on many occasions on the street."

It is to be stressed that in that case Mr Justice Wood was dealing with the question of evidence of fact which a police officer could give, resulting from his or her own knowledge of what happens on the streets. It is of importance that that particular case should not be extended to anything further than what was said on the facts of that case in relation to the giving of evidence of fact. It is common-place, in cases where allegations are made that persons are drug dealers, for police officers to give evidence in relation to items such as scales, spoons, lists and so on, which are the paraphernalia of a drug dealer.

In our view there was no proper objection that could be taken to the generality of the evidence given in this case by Detective Constable Horton. In our view she was entitled, based on her experience, to give the evidence that she gave in relation to values or prices, and she was entitled to give evidence that the items found at the appellant's flat were consistent with his being a dealer in drugs, that is to say they were the type of items that are frequently found in the home of a drug dealer.

Accordingly, we would reject all those grounds of appeal put forward by Mr Crowther on behalf of the appellant.

However, as I have already related, in her statement the Detective Constable went very much further than that. She said:

"In my opinion this [that is to say the list or the lists] relates to the sale of drugs".

That is a statement of opinion which amounted to that police officer saying that in her opinion this appellant was guilty of the offence with which he was charged. It is abundantly plain that, if any reliance can be placed upon Bryan for the purposes of this case, Bryan did not say that it was open to a police officer to express an opinion that the defendant is guilty of the offence charged.

We are in the great difficulty that we do not have a transcript of the evidence that was actually given by Detective Constable Horton at trial. Neither side has asked for a transcript. The question of obtaining a transcript now was raised in the course of argument. That would have involved an adjournment and Mr Morris on behalf of the Crown rightly agrees that, bearing in mind that this appellant has already served a substantial part of his sentence, it would not be right to involve him in a further adjournment of this appeal. Mr Morris is content that we should approach this appeal on the basis that the witness did give evidence in accordance with her statement. Mr Morris does, however, submit that in truth this is a matter of linguistics and that there is little, if any, difference between an expression of an opinion that the defendant committed the offence with which he is charged, and an expression of opinion that the articles found in his possession were consistent with his being a dealer in drugs, because these items are the type of items which are quite frequently found in the possession of a drugs dealer.

Mr Crowther for the appellant submits that this evidence was placed before the jury by a person who would, in the jury's eyes, be in a position of authority and would have the requisite knowledge to express the view that he, the appellant, was in fact guilty and that the list would only relate to the sale of drugs.

We are unhappy about having to come to a conclusion in relation to this matter without the benefit of the transcript. That being so, we think it is right that the appellant should have the benefit of any doubt that may be in our minds. We have certainly no doubt that the witness should not have expressed the opinion that appears in her statement that the list did relate to the sale of drugs. In all those circumstances we have, we confess with a degree of reluctance because the relevant case made against this appellant was indeed a strong one, come to the conclusion that the verdict is nonetheless one which is unsafe and accordingly the two convictions must be quashed.

Mr Crowther takes the further point that the count charged in count 3 of the indictment is bad for duplicity. There may be some substance in that submission but in the light of the conclusion we have come to, which applies to both counts, it is not necessary for us to adjudicate upon it.

Accordingly, the convictions on counts 1 and 3 and the accompanying sentence will be quashed. The conviction on count 2, to which the appellant pleaded guilty, will remain and we will have to consider what is the appropriate sentence for us to pass in relation to that account.

MR CROWTHER: My Lords, I would ask that any sentence passed in

relation to count 2 take into account the learned recorder's view of the appropriate sentence on counts 1 and 3, which were of course matters of significantly more gravity than count 2, and further his guilty plea, presented at the first possible opportunity, bears most strongly in the minds of my Lords when passing sentence.

LORD JUSTICE SWINTON THOMAS: Neither of you have a copy of his

antecedents, have you?

MR CROWTHER: My Lord, I might. Would your Lordship like a copy?

LORD JUSTICE SWINTON THOMAS: Yes, of course.

MR MORRIS: As I recall, there are no previous convictions for

drug offences. May I just look for antecedents. I have an antecedent history. That is correct - there are no previous convictions for drug offences. They are not relevant but you are welcome to see them.

LORD JUSTICE SWINTON THOMAS: Thank you. ( After a pause ) As I

indicated, the appellant now falls to be sentenced in respect of his plea of guilty to the possession of the amphetamine. He is entitled to credit for his plea. As against that, the quantity of amphetamine was substantial. In our judgment the appropriate sentence to be imposed in respect of that is one of four months' imprisonment, which means that the appellant will be released.