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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 >> Smith, R v [2015] EWCA Crim 1123 (26 June 2015) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2015/1123.html Cite as: [2015] EWCA Crim 1123

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IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT IN ST ALBANS
RECORDER HOLLANDER QC
T20120251

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/06/2015

Lord Justice Bean :

1. From 27^th to 29^th August 2013 the applicant stood trial in the Crown Court at St Albans before Mr Recorder Hollander QC and a jury on one charge of possessing a controlled drug of Class A with intent to supply and two charges of possessing criminal property. On 29^th August he was convicted on all three counts. On 19^th September 2013 he was sentenced to 4 ½ years imprisonment on the drugs charge with no separate penalty in respect of the other two. Following refusal by the single judge he seeks permission to appeal against both conviction and sentence.
2. In support of the application relating to his conviction he sought to adduce fresh evidence from two witnesses, his former partner Cheryl Gunter and his sister Lisann Smith. There was an issue as to why these two witnesses had not been called at the trial. On 29^th January 2015 this court (myself, Irwin J and the Recorder of Carlisle) gave directions which included the obtaining of statements from the solicitor (Mr Assem Taj) and counsel (Mr David Taylor) who had conduct of the defence at trial. We heard oral evidence from Ms Gunter, Ms Smith, Mr Taj and Mr Taylor at the outset of the hearing before us, the first three being called by Mr Hossain on behalf of the applicant and the last by Ms Porter on behalf of the respondent.

The evidence at trial

3. On 21^st October 2011 at about 1300 hours, two plain clothes police officers (PC Hussain and PC Chipchase) were on patrol in Riverside Road, St Albans, when they noticed the applicant who was known to them. They stated that when the applicant saw and recognised them, he turned around and ran into an alleyway. PC Hussain gave chase and only lost sight of the applicant for a fraction of a second. He saw him throw something with his left hand, to his right, over a low fence. Thereafter the applicant slowed down and was detained by the officers. He stated, "I ain't got nothing Kash. I stopped because I know it's you."
4. A subsequent search of the area over the fence revealed a small cutting from a black plastic bag, which contained six wraps of cocaine with a total weight of 3.46 grams and a value of between £160 and £240. The applicant was searched and approximately £1,210 in cash was found on him. In addition, he had two mobile phones and four lists showing numbers and letters and which were suspected to be "drug dealing lists" Upon arrest he stated "You haven't got any evidence on me Kash". No fingerprints or DNA were found on the packaging and analysis of the applicant's mobile phone did not provide any evidence to support the charge of drug dealing. In interview, he made no comment but gave a prepared statement in which he denied discarding any drugs or that the money was the proceeds of drug dealing.
5. On 20^th December 2011, PC Hussain was again on patrol in plain clothes, driving an unmarked police vehicle. At about 0100 hours he had cause to stop a silver Astra in which the applicant was the front seat passenger. He considered the applicant's behaviour to be "nervous and evasive" and therefore detained him for the purpose of a drugs search. Other officers arrived and the applicant was searched and found to be in possession of £1,810 in cash. He was arrested and in interview, made no comment but gave a prepared statement in which he stated:

"I had £1400 last night. It is money given to me from family to buy a car with and pay off my overdraft…….The money is not from anything illegal."

6. Financial investigations revealed that the applicant had not been in registered employment since leaving the armed forces in 2007 and that he received a legitimate income from benefits and military pension totalling £6,708 per annum. His bank accounts revealed additional regular cash deposits of £500 or £600, totalling £3256 in 2011, and that he spent £2325.34 hiring various vehicles during that year.
7. It was accepted that the applicant had been stopped and searched by PC Hussain on at least five additional occasions between 2010 and 2011 (the applicant contended it was about 50 times). PC Hussain said that he had proper reason for each stop and search; however he accepted that on some occasions, including the two occasions directly in question, he had not completed the proper paperwork, as he was required to do by the Codes of Practice. Accordingly, there were breaches of the Codes in respect of the stops in October and December 2011. PC Hussain accepted his error but explained that the information was nevertheless set out his written section 9 statements, which he had erroneously understood to be sufficient. The jury were directed to take these matters into account when assessing the evidence as a whole.
8. The prosecution case was that the applicant was in possession of the cocaine wraps intending to supply them to others. In addition that the two sums of cash were lawfully seized on 21^st October and 20^th December 2011 and were the proceeds of criminal activity. Reliance was placed upon the evidence of the police officers and the presence of "dealer's lists" upon the applicant.
9. The defence case was that the applicant was never in possession of the cocaine and did not throw it over the fence as alleged. The cash found on his person on both occasions was from a legitimate source and not the proceeds of criminal conduct as alleged. He contended that the searches on each occasion were unlawful because the officer did not have reasonable grounds for suspicion that he would find stolen or prohibited articles. The lists exhibited as "dealer's lists" were in fact notes relating to his gambling activity.
10. The applicant gave evidence that on 21^st October 2011 he was walking along the street in St Albans and saw someone jump out from a car so he ran away because he was scared. When they shouted "police" he stopped. It was PC Chipchase that stopped and detained him, not PC Hussain who was further behind. He was never in possession of the cocaine and did not throw it away. He was not a drug dealer and did not have any drugs on him. They were planted by PC Hussain who had stopped and searched him numerous times before and he considered he was being victimised. The pieces of paper with letters and numbers were not "dealer's lists" but either gambling lists or something from his army days. He believed they were taken from him on an earlier occasion in February 2011 and that PC Hussain was lying when he said they were found on 21^st October 2011.
11. In relation to the two sums of cash (counts 2 and 3), these may have been the proceeds of gambling, or may have been a loan from his sister, or money to buy his baby daughter a Christmas gift.

The grounds of appeal

12. We have in the papers grounds of appeal against conviction and sentence drafted by Mr Taylor. When the papers were before the single judge it was thought that these were lodged out of time. We now have a signed statement of the solicitor then acting for Mr Smith to the effect that they were lodged on 27^th September 2013. We are prepared to accept that the application was made in time. Mr Taylor's grounds relating to the conviction complained that the judge "erred in law in refusing an application on 27/8/13 at the end of the prosecution case of no case to answer and/or to stay the proceedings as an abuse of process of the court". Mr Hossain's revised grounds, contained in his skeleton argument of 15^th March 2015, substitute the following:

a) trial counsel ought to have applied to exclude (under s78 of PACE 1984) the evidence of "dealer lists" relied on by the prosecution to prove an intent to supply in respect of count 1;

b) details disclosed in the CAD were not adduced at trial or relied on for further enquiry resulting in prejudice to the applicant in the conduct of his defence;

c) crucial witnesses of fact were not called on behalf of the applicant resulting in a failure adequately to advance his defence at trial.

The dealer lists issue

13. The documents said to be dealer lists consisted of a few sheets of paper with entries consisting of initials and the figure 1 or 2 (e.g. CR 2 or TP 1). It was not disputed that these were in the defendant's handwriting, nor that they were his. The prosecution case was that they had been seized from him by PC Hussain on 21^st October 2011 following his arrest on the drugs charge and that they were dealer lists. The defence case was that they had been seized from the applicant by PC Hussain on a previous occasion and that they related to gambling, not to drugs. It was at the heart of the defence case that PC Hussain had unreasonably stopped and searched Mr Smith on several previous occasions that his evidence as to what occurred on 21^st October 2011 was untrue, both as to observing the defendant throw a package of drugs over a fence and as to the alleged seizure on the day of the dealer lists, the latter being in truth "recycled" from the previous seizure as part of PC Hussain's dishonest evidence.
14. As we have noted, there was an application at the close of the prosecution case for the case to be dismissed on the grounds of abuse of process or unreliability of the evidence, which was rejected by the learned judge; and Mr Taylor's original grounds of appeal argued that the judge should not have allowed the case to go to the jury. The single judge refused leave on that point and Mr Hossain did not reargue it. He was right not to do so. It was plainly for the jury to decide whether or not PC Hussain was lying. There were no obvious inconsistencies in the prosecution evidence such as to make the case too unreliable to proceed further.
15. However, Mr Hossain puts the case in a different way by criticising trial counsel's decision not to apply to exclude the alleged dealer lists under section 78 of PACE. He submits that the police record of property seized makes no mention of the dealer lists; that the CAD log compiled on the basis of PC Hussain's telephone call giving basic details of the arrest made no mention of them either; that the seizing of the dealer lists, if that did indeed occur on 21^st October 2011, had not been properly recorded; and that there had accordingly been significant (and to a large extent undisputed) breaches of the requirements of the relevant PACE Code of Practice which could and should have been made the basis of an application for the lists to be excluded from the evidence placed before the jury.
16. We consider that the decision not to go down that route was a tactical one properly within the discretion of trial counsel. The potential disadvantage of an application of this kind was that it would have necessitated PC Hussain being cross-examined before the judge in the absence of the jury on the voir dire. This would have afforded the allegedly dishonest main witness for the prosecution a dress rehearsal in advance of being required to give evidence before the jury. There were other weaknesses in the prosecution case (for example the height of the fence over which the drugs were allegedly thrown, as shown in photographs taken by the defendant) which trial counsel may understandably have wished to be able to raise in cross-examination without such a dress rehearsal.
17. We think it is most unlikely in any event that an application to exclude the lists would have succeeded. The judge would no doubt have said, as he did in his ruling rejecting the "half time" submission, that the truthfulness of the police officer should be a matter for the jury to decide and that the failures in recording the seizure were not so egregious as to justify preventing the documents from being placed before the jury. In the event the provenance of the documents was explored before the jury in cross-examination and the defendant then gave evidence both on this issue and on the nature of the documents, namely that they related to gambling and not to drugs. This ground of appeal, which Mr Hossain described as his best ground, is in our view not arguable.
18. We take the same view about the separate but very similar ground relating to the CAD log, which does not contain mention of the alleged drugs seizure. Complaint is made that the document was not explored at trial, nor relied on in support of the abuse of process application. We have seen the document and in our view it is far less significant than Mr Hussain suggests. It is of course no more than a record of some information reported over a police radio. It says that "one [suspect] making off has now been detained". It records which officers arrived at the scene and when, and similarly when each of them left. It gives the location of the incident, and some of the history of the defendant's previous encounters with the police obtained from the police national computer.
19. Although the document was not made an exhibit nor shown to the jury it is apparent from the transcripts which we have that it was available to counsel on both sides at the trial and that PC Hussain accepted when giving evidence that it made no mention of the finding of drugs (nor for that matter, of the dealer lists). No application was made to place the document as such before the jury and we do not see how it could have assisted the defendant's case.

The fresh evidence application

20. We turn to the application to adduce fresh evidence. Counts 2 and 3 of the indictment alleged, respectively, that cash found on the defendant on two occasions was criminal property (that is to say the proceeds of drug dealing), £1210 was found on him on the date of his arrest on 21^st October 2011 and £1810 on 20^th December 2011.
21. The defendant's former partner Cheryl Gunter had given a witness statement to his solicitors, signed on 20^th November 2012. This stated that between 2007 and 2009 she had withdrawn between £300 and £400 each month from her bank account to give to Mr Smith in order that he in turn could make instalment payments in respect of a car registered in her name. She said that they were in a relationship at the time; her credit score was low; and it was therefore better for him to make the payments from his account. She confirmed this evidence before us.
22. Lisann Smith, the defendant's younger sister, had not given a signed witness statement to his solicitors prior to the trial, although we have in the papers an unsigned and undated draft. Her evidence was that on 19^th December 2011, the day before the defendant was arrested and found to have £1810 on him, she had withdrawn the entire contents of her bank account except for 20p, the sum involved being £1353, and handed the whole sum over in cash to her brother. Again, she confirmed this in evidence before us. Her bank statement for December 2011 shows that on 19^th December she made a withdrawal of this amount which reduced her credit balance to 20p, and that no replenishment of the account took place until 30^th December 2011. She could give no explanation of why she (as a single parent looking after three children, and in the week before Christmas) should have been willing to reduce her account to 20p simply because her brother asked her for a loan.
23. Neither of these witnesses gave evidence at trial. The grounds of appeal complained that these two witnesses of fact should have been called and that Mr Taylor's failure to do so resulted in a failure to adequately advance the defence. In accordance with the procedure laid down in the case of McCook the applicant was invited to (and did) waive legal privilege; statements were obtained from the applicant's then solicitor Mr Taj and Mr Taylor; and we heard from both of them in oral evidence.
24. It seems clear to us that Mr Smith's lawyers were leaving it to him to secure the attendance at the trial of his former partner and his sister if they were required. It is also clear that no steps were taken even to request their attendance until the trial had begun. The trial began on Wednesday 27^th August. Prosecution witnesses gave evidence on that day and for some of the next day. Following the unsuccessful submission that there was no case to answer in the course of the second day the defendant then gave evidence.
25. Ms Gunter said that on the day of the trial Mr Smith telephoned her asking if she could attend the next day. He then passed the telephone to his lawyer: she did not recall a name, but there is no dispute that this was Mr Taylor. She told him that there was no way that she could attend the following day because a new phone and computer system was being installed in her department at work and she had been told in advance (as had everyone in the office) that they had to be at work that day.
26. Lisann Smith, similarly, was only asked to attend the day before she was required. She told her brother that she could not get a babysitter at such short notice. She said that if the matter had been put off "for a few days" she could have attended.
27. Mr Taylor told us, and we accept, that he discussed with his client before the latter gave evidence how to proceed in respect of the witnesses. He advised Mr Smith that he could apply to the judge to issue witness summonses against either or both of Ms Gunter or Mr Smith. Mr Smith said that he was not willing to have summonses issued. He said that he could account for the money. There was another discussion at the conclusion of the defendant's evidence on the afternoon of the second day of the trial. This was confirmed by Mr Taj, who told us that his impression was the client and trial counsel had discussed the matter. He (Taj) was satisfied that the decision had been made by both of them together, and also confirmed that the client had said that he didn't want the witnesses to be summonsed.
28. Although Ms Smith was not summonsed to attend court and did not do so, her bank statement was adduced in evidence (the prosecution having consented to this course of action) and the defendant told the jury that the £1353 shown to have been withdrawn by his sister on 19^th December 2011 was paid over to him.
29. Mr Hussain submits that Mr Taylor should either have applied for witness summonses or have sought an adjournment, presumably to the following week, to enable the witnesses to attend. As to the first alternative, we are entirely satisfied that the defendant instructed his lawyers that no application was to be made for a witness summons. As to the second, we have no doubt that the judge would have refused such an application had it been made. The defendant had had the opportunity of arranging for his sister and ex-partner to attend court. In the case of the sister there was not even a signed witness statement in existence. An adjournment to the following week would have caused significant and costly disruption. We are confident that in respect of Lisann Smith the judge would have said that either she was to attend at the start of the hearing on Friday or not at all, and that if the defence wished the witness summons to be issued he would do so. As for Ms Gunter, the judge would no doubt have asked what relevant evidence she could give, and, on seeing the contents of her witness statement, would have asked why it was necessary for her to attend court at all. It seems to us inconceivable that the judge would have adjourned the case until the following week.
30. There is another factor to which the judge would have been entitled to have regard in deciding whether to adjourn to enable Ms Smith to attend. The relevance of her evidence was to support the defendant's case on count 3, which was: the £1810 he was carrying around late at night on 20^th December 2011 was not the proceeds of drug dealing. On the contrary: 80% of it was given to me by his sister Lisann the previous day. Yet when interviewed following his arrest he confined himself to handing in a prepared statement including the line "I had £1400 last night, it is money given to me from family to buy a car and pay off my overdraft". Lisann is mentioned neither in that prepared statement nor in his subsequent defence case statement which was on the same lines.
31. We turn to consider the statutory questions under s 23(2) of the Criminal Appeal Act 1968. We consider that Ms Gunter's evidence is capable of belief (indeed it was scarcely disputed) but that it adds nothing to the case: certainly it does not arguably form a ground for allowing the appeal. As for Ms Smith, her evidence that she handed over £1353 to her brother on 19^th December 2011 is not capable of belief. We also take into account the defendant's deliberate decision not to name his sister at any stage prior to the trial as the source of most of the money the subject of count 3, or as a material witness in any other respect, and his (not his lawyers') failure to secure her attendance at the trial.
32. After we had reserved judgment on the application Mr Taj saw fit to send in yet another witness statement. This consists partly of argument and partly of an account of a conversation with his client in prison after the trial relating to what he had been advised by Mr Taylor about the nature of a witness summons and whether an application could be made for an adjournment. In our view it adds nothing to the applicant's case.
33. We decline to receive the statements of either Ms Gunter or Ms Smith in evidence. In the result there are no arguable grounds for doubting the safety of the conviction in this case. The renewed application for permission is refused.

Sentence

34. In passing sentence the Recorder said that the defendant fell within the significant role category of the sentencing council guideline for supplying controlled drugs, being "motivated by financial or other advantage, whether or not operating alone". He took into account the fact not merely that Mr Smith had been convicted of possessing eight wraps of cocaine with intent to supply, but also the possession of dealer list, the fact that the drugs were bagged up for supply, and the fact that on two occasions he was found to have substantial sums of cash on him which the jury had found to be the proceeds of drug dealing. The Recorder also found that as a street dealer selling direct to users the defendant fell into category 3 for the purpose of the guidelines. He said that he would impose no separate penalty in respect of counts 2 and 3 because that would be a form of double counting.
35. The judge took into account that the applicant was substantially a man of good character (he had been convicted by a court martial of relatively minor offences many years previously) and that his career in the army had left him suffering from post-traumatic stress disorder: though, as the Recorder rightly said, having PTSD does not in any sense justify a course of drug dealing. He imposed a sentence on count 1 of 4 years, 6 months imprisonment, which is the starting point for a significant role at category 3 level, the category range being from 3 years 6 months to 7 years.
36. Mr Hossain's submission on sentence is that the judge must either have given no credit for the applicant's personal mitigation or have gone above the starting point before making allowance for it. He submits that his client should have been given a discount for personal mitigation from the starting point, so as to result in a lower sentence than 4½ years. We disagree. For the reasons given by the judge, who had of course heard the evidence at trial, he was entitled to go a little way above the standard starting point of 4½ years before returning to that figure after taking account of the applicant's personal mitigation. We are unable to say that the sentence which he imposed was excessive or wrong in principle. The renewed application for permission to appeal against sentence is refused.