Brock, R v [1999] EWCA Crim 756 (18 March 1999)

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MARILYN BROCK, R v. [1999] EWCA Crim 756 (18 March 1999)

MR JUSTICE KLEVAN: On 23rd September 1998 in the Crown Court at Harrow before His Honour Judge Sich and a jury, the appellant was convicted of two counts of possession of a Class A drug with intent to supply (counts 1 and 2 in the indictment) and one count of possession of a class B drug, cannabis (count 3 on the same indictment). On conviction the appellant was sentenced to a probation order for two years.

There was a co-accused, the appellant was jointly indicted with her cohabitee, Colin Walker. He had pleaded guilty to counts 1, 2 and 3 and was sentenced to 3 years' imprisonment. A confiscation order was made in his case, as it was in the appellant's.

What were the facts? On the evening of 4th July 1997 the police executed a search warrant at 35 Cloister Road, North London. It was rented accommodation, occupied by the appellant and her cohabitee, Colin Walker, and her two children. Both the appellant and Walker were present. Significant sums of money were found on Walker and other places in the house, and £4,000 was found in the appellant's handbag, and electronic scales were found in the kitchen. Quantities of heroin, crack cocaine and cannabis were also discovered hidden in various parts of the house. It was not in dispute that the police had discovered the drugs and the money at the house, Walker having pleaded guilty, as we have said, to the three offences. The single issue for the jury was whether the appellant had been in joint possession of the drugs found and whether, certainly in as far as counts 1 and 2 of the indictment were concerned, whether she had been involved in drug dealing taking place at her home.

The prosecution put their case in this way. The drugs discovered in the search were amounts of cannabis resin in a wooden box in the living room, some £945 in Mr Walker's clothing, amounts of crack cocaine were found under the wardrobe in a bedroom, and heroin and cocaine were found, having been hidden inside the boiler casing in the kitchen. A set of digital scales was found on the kitchen cupboard and other amounts of drugs were found on another cupboard. In the front bedroom there was a total of just over £3,000 in the bedside locker, and money bags and cling film were found in the living room. A further sum of money, in the amount of £4,000, was found in the appellant's handbag.

The large quantity of drugs found, together with the large amount of money in cash, indicated that drug dealing on a not insubstantial scale was taking place at the house. Although Mr Walker had pleaded guilty, it was the Crown's case that the appellant was also involved in the supply of the drugs from the house. The appellant, although not staying there, admitted that she had returned to the house around ten times during the period of the sixteen days before the search.

The prosecution submitted to the jury that Mr Walker did not appear to have attempted to conceal the drugs and other paraphernalia relating to drugs trading, and suggested it would have been difficult for the appellant to be unaware of what was happening.

The prosecution further submitted to the jury for their consideration that the appellant's explanation for the £4,000 found in her handbag was untrue. They relied on the fact that there had been no transfer of documents and that the car had not been taken away by the alleged buyer.

The appellant's account in interview foreshadowed her defence. Giving evidence, she said she had no knowledge of what was happening at the house. Mr Walker was said to be entirely responsible for any dealings in drugs. She had moved house out of the house on 19th June 1997 after a burglary at the premises. She had been staying with her sister. She said that the £4,000 in her handbag was the proceeds of sale from the Rover motorcar which she had sold to her sister, although at the relevant time she still had control over it.

The appellant said that her relationship with Mr Walker had been troubled during this time, although they had since married. He later admitted that he had been taking cocaine that she was not aware of at the time. She throughout said that she had no knowledge of the drugs. Mr Walker was involved in the supply of drugs and that she was not involved herself.

In the original ground of appeal, counsel submitted four areas for this court's consideration, only two of which have been pursued today. He submitted that the judge was wrong in declining to tell the jury that it was open to them to convict of simple possession in relation to the counts 1 and 2, and in the second ground that the learned judge failed to give proper directions on the issue of encouragement and assistance in respect of counts 1 and 2 of the indictment.

As to that ground, the mere knowledge of the activities of the co-defendant was not enough to found a conviction. He has not sought to argue the remaining two grounds and we need not trouble to outline them.

We deal first with the grounds that have been argued - that the learned judge was wrong in declining to tell the jury that it was open to them to convict of simple possession in relation to counts 1 and 2. It is well settled that the learned judge was entitled as a matter of discretion to decide whether the alternative count of simple possession should have been left to the jury.

This was a case clearly, on its facts, where the lesser offence really did not arise. To have left any alternative offence for the jury's consideration would well have distracted them from the real issue in the case that they, the jury, were being invited to consider, namely whether the appellant was involved in supplying drugs with Walker. That was the issue that the jury were being asked to consider. In the view of this court, the learned judge very wisely made sure that the jury concentrated its mind on the real issue before them, and not a bit of criticism can be laid at the judge's door in this regard.

The second ground of appeal that has been argued before this court is that the directions given in relation to the first and second counts were insufficient. The learned judge was required to direct the jury with regard to the meaning of possession and control of the drugs that were being considered in relation to each of the counts. That was done. It was very important, obviously, that directions were given on joint enterprise. The appellant and the co-accused were living as man and wife at the address that was searched by the police. In the circumstances the prosecution accepted that it was necessary for the trial judge to direct the jury that it was insufficient for the prosecution to prove that the appellant was aware of the existence of the drugs and that her co-accused was supplying drugs. It was necessary for the prosecution to go further and establish that the appellant was involved in the drug dealing.

At page 14, at the beginning of that page of the summing-up, to page 18, the learned judge explained the concept of possession. At page 20C-21D the learned judge explained what was meant by an intent to supply, and at page 5C, at page 10E-H and at page 11B he directed the jury that knowledge that the appellant's co-accused was drug dealing was not of itself sufficient: the prosecution had to prove that the appellant was herself involved.

Learned counsel submits to us that in certain passages the learned judge diluted those directions. We cannot agree. What he did was to seek to cover all the possible findings of fact that the jury might come to and tell them the law accordingly. He wanted to be thorough and he was thorough. To alight on a particular passage and take it out of context in this regard and not to relate it to what he had earlier said is an inappropriate way of proceeding with the summing-up. It was as a whole clear and helpful to the jury.

Two cases have been cited to us: R v Conway and Burkes [1994] Crim.L.R and R v Bland [1988] Crim.L.R. 41. Those authorities can be clearly distinguished from this case because in those authorities neither of the appellants had the possession and control that can be found in this case.

The appellant here had possession and control and, by the finding of the jury, was guilty of intent to supply in counts 1 and 2. In those circumstances neither of the grounds that have been put before us and argued by learned counsel has merit and accordingly this appeal fails.

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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Brock, R v [1999] EWCA Crim 756 (18 March 1999) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1999/756.html Cite as: [1999] EWCA Crim 756

England and Wales Court of Appeal (Criminal Division) Decisions

MARILYN BROCK, R v. [1999] EWCA Crim 756 (18 March 1999)