No: 9607322 W4

IN THE COURT OF APPEAL
CRIMINAL DIVISION
 
                               Royal Courts of Justice
                               The Strand
                               London WC2
 
                               Thursday 26th June 1997
 
                    B E F O R E :
 
                 LORD JUSTICE HUTCHISON
 
                 MR JUSTICE BUTTERFIELD
 
                         and
 
                HIS HONOUR JUDGE ALLEN
                (Acting as a Judge of the
           Court of Appeal (Criminal Division))
 
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                     R E G I N A

                       ‑ v ‑

                JOHN FREDERICK GROVES
 
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   Computer Aided Transcript of the Stenograph Notes of
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MR A BUDWORTH appeared on behalf of the Appellant
MR V CHARBIT appeared on behalf of the Crown
 
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                      JUDGMENT
                    (As approved)
 
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                  J U D G M E N T
LORD JUSTICE HUTCHISON: On 8th November 1996 in the Crown Court at Southend before His Honour Judge Lockhart ^ the appellant having been convicted of possessing a controlled drug with intent to supply was sentenced to 12 months' imprisonment. He appeals against the conviction which took place on 3rd October 1996 with leave of the single judge.
      The prosecution's case was a simple one, at least initially. It depended upon the fact that at 2.45 in the morning of 21st December 1995 police officers searched a room registered in the appellant's name at Flax Hotel in Braintree, Essex. No one, policemen apart, was present in the room at the time of the search.  Found in it were a number of quantities of cannabis resin, some brass scales, a large knife (both of those articles had traces of cannabis on them) and some packets of cigarette papers. These articles and substances were disposed in various places in the room.  The cannabis amounted in all to 157.2 grams.
      The appellant, who it seems had returned to his room after the search, attended the police station and was interviewed regarding those items. His account in interview was that a man called Wesley had been living in the room in the time preceding the raid and that the  drugs belonged to Wesley.  He did not know where Wesley was to be found because he did not know him well.
      The Crown's primary case was, and remained throughout, that the man Wesley did not exist and that the appellant it was who at all material times was the sole occupant of this room and, accordingly, was, prima facie at least, responsible for and in control of the drugs and paraphernalia that were found there. The defence case, however, was, as he had said in his interview, that he was not living in the room and had not lived there since October 1995, although he accepted that he was registered as living there for housing benefit purposes. He had in fact, he said, been living at his girlfriend's address in Great Dunmow.
      On the Saturday preceding the search the appellant had lent the room to an associate of his brother's, the man Wesley, and given him the key.  The cannabis belonged to Wesley.  On the Saturday night he, together with other people, smoked some cannabis with Wesley in the room.  The appellant said that he returned to the hotel on 21st September about 3 o'clock in the afternoon, found the door of his room was insecure and found the search warrant form. He arranged to attend the police station on 2nd February. He agreed that articles of his, in particular a television, were still in the  room at the time of the search but asserted consistently that he had not lived there since October and that at the material time and immediately before the search the room had been lent to the man Wesley. Two witnesses named Sullivan and Burns, said that they had bought drugs from Wesley who was staying in the appellant's room at the Flax Hotel. Burns saw Wesley getting out drugs on the night that he arrived. Another man, Wilson, had also met Wesley and had seen him giving people cannabis. Wesley told Wilson that "John," that is to say the appellant, "is not about", when Wilson had knocked on the appellant's door.
      The Crown's case, as it was initially presented, had the attraction that once the jury decided, if they did decide, that Wesley was indeed an invention of the appellant's, it was a very simple case. The room of which he was the occupant was full of drugs and drug paraphernalia, and, absent some explanation, it would plainly be open to the jury to infer that he had knowledge of the contents of his room and was in control of the drugs there.  There was no issue on intent to supply.
      The problem in this case arose once it began to be contemplated or accepted that the man Wesley might indeed exist but the appellant nevertheless be guilty.  Had the case been left on the basis that the issue for the jury was whether it was true that Wesley was in occupation or the appellant was in occupation, and that acquittal or conviction depended on that, we think that no difficulty would have arisen. Once, however, the judge invited the jury to consider, as it seems to us he did, whether even if Wesley existed and occupied the room the defendant was nonetheless in possession of the drugs with intent to supply that created difficulties. If that was the factual situation, knowledge alone was not enough nor was mere acquiescence.  What had to be established was that the defendant not only knew of the presence of the drugs, but had some control over them and/or that he was a participant in their possession by being party to a joint enterprise with Wesley. In that connection we refer to the cases on which the appellant relies and which are helpfully cited in his skeleton argument of Searle [1971] Crim LR 592, Conway and Burker [1994] Crim LR 826.
      With those principles in mind we turn to consider the learned judge's summing‑up. At page 6 he said this:
 "The situation is this: if when you think about this case you decide that the drugs were introduced into the flat by this man, Wesley, or indeed anybody else, or you think the might have been introduced into the flat by Wesley without the defendant knowing then your verdict in this case would have to be one of not guilty." 
That direction, as far as it went, was unexceptional provided of course that the jury were not left to infer that the corollary was also true, namely that if they found that he did know that Wesley had introduced the drugs that meant that he was guilty. The judge returned to the matter at page 12 of his summing‑up and indeed I begin just at the bottom of page 11 when he said this:
"As I say, what the prosecution have to prove here, the issue that you have to decide is this:
 
(a) Were the drugs that were found in that room at 2.45 on that Thursday morning, were they drugs that the defendant had?
 
(b) Were they his drugs there?
 
(c) Was he aware that the drugs were there?
 
(d) Had he given permission for the drugs to be there? Or;
 
(e) Could/might it be that he was totally unaware that if the drugs did belong to Wesley that Wesley had the drugs there." 
Just pausing there, we would make two comments about that passage.  First of all it is not clear whether (a) to (d) are intended to be cumulative or alternative indications of the circumstances in which guilt would be established and second the judge appears to be drawing an antithesis between (a) to (d) on the one hand, indicative of guilt and (e) on the other hand, indicative of innocence. The jury would, you would think, have understood from that passage the crucial  question was whether in the event of Wesley existing and occupying the room the appellant knew of the presence of the drugs brought there by Wesley, in which case he was guilty or was totally unaware of it, in which case he was not. The judge then said:
"It is not a situation here where one says that there clearly is a Wesley, therefore, there must be a doubt. The question you have to ask yourself is this:
 
1(a) Were those drugs, that the police found, in the defendant's  possession?
 
In other words, were they in his flat with his knowledge and his consent?  Or;
 
1(b) could it be that he was totally unaware that they were there?" 
Again he is pointing an antithesis between presence of the drugs with the knowledge or consent of the appellant on the one hand and indicative of guilt, and total unawareness of their presence on the other, pointing to innocence. He nowhere addresses in either of those passages the questions that we have indicated necessarily arose were the jury to contemplate convicting on the basis of a finding that Wesley may have existed and occupied the room, the necessary ingredients of a direction as to control and/or joint possession on the part of the appellant.
      Counsel for the appellant, Mr Budworth, readily conceded in his skeleton argument that had the issue  remained the simple one of whether Wesley ever existed or not or whether the defendant was in occupation, directions of that sort would have been superfluous, but he contends, rightly in our judgment, that once the idea of Wesley existing and the defendant nevertheless being guilty is floated, a fuller and more detailed direction along the lines we have indicated was necessary.
      The learned judge then concluded that part of his direction by saying this:
"If he was unaware [or may have been unaware] that they were there he is not guilty. If you are satisfied that they were his drugs, and this is a matter for you to decide , then you would have to say that he is guilty. That is what you have to decide". 
That as far as it goes is unexceptional and seems to hark back to the Crown's original simple approach, but it is an approach inconsistent with what precedes it in the passages we have quoted. It seems to us therefore that the case was left to the jury on the basis that at least one scenario, which they might contemplate and which they might find to exist, was that, contrary to the Crown's contention, Wesley was a real person who had indeed gone into occupation of the defendant's room. The jury, it seems to us, would have been left with the impression that in that event the guilt or innocence of the appellant depended upon whether or not he knew that Wesley had drugs in the room or not. That was a serious  misdirection because knowledge, while necessary, is not a sufficient ingredient to a charge of possession with intent to supply in circumstances such as those. It seems to us that the conviction is accordingly unsafe and must be quashed.
      We add only that we have not dealt with Mr Budworth's final and supplementary ground of appeal, that in the last of the passages I have quoted the learned judge was guilty of a misdirection that he in some way qualified or lowered his perfectly proper earlier direction as to the burden and standard of proof. We shall say no more than, admittedly not having heard Mr Budworth argue that point, we are inclined to reject it out of hand.
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