No: 200103377/X2 
Neutral Citation Number: [2002] EWCA Crim 2401
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Thursday, 17th October 2002
B E F O R E:

LORD JUSTICE ROSE
(Vice President of the Court of Appeal, Criminal Division) 

MR JUSTICE PITCHERS 
 
MR JUSTICE TREACY 

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R E G I N A 

-v- 

DONALD DENZIL SMITH
 
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MR D BRADSHAW appeared on behalf of the APPELLANT
MR P STANDFAST appeared on behalf of the CROWN

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J U D G M E N T
1.	THE VICE PRESIDENT:  The territory in which this appeal lies has been described as one of the pitted battlefields of the criminal law.
2.	The appellant, following a trial at Bradford Crown Court before Mr Recorder Evans, was convicted on 14th September 1998, by a majority of 10 : 2, of possessing a Class A drug, crack cocaine with intent to supply.  He was subsequently sentenced to five-and-a-half years' imprisonment and an order for forfeiture was made in relation to a motorcar and a sum of cash.
3.	Leave to appeal against conviction and sentence was refused by the Single Judge and on, 18th November 1999, the Full Court dismissed a renewed application for leave.  He now appeals against conviction following a reference by the Criminal Cases Review Commission on 18th June 2001.  He has now been released from the sentence imposed following his trial.
4.	In outline, the facts were that, on 23rd April 1996, the appellant's car was stopped by police officers.  There was £1430 in cash in his possession. He was arrested and premises with which he was associated were searched.  Over 76 grammes of crack cocaine, of approximately 90% purity, was recovered from the back of a chair at those premises.  It was sufficient to make over 500 wraps.  Drugs paraphernalia, including weighing scales, cling film and a freezer bag were found.  The prosecution case was that, at a time shortly before his arrest in the street, when he was stopped by the police the appellant put something, (which they claimed was cocaine) in his mouth and swallowed it.  He refused to provide a blood sample after his arrest.  It was of significance that the appellant's thumb print was found on the scales to which we have referred.
5.	The defence case was that the appellant had not put anything in his mouth and he had been dragged by the throat from the car by the police. He knew nothing of the drugs recovered from the address with which he was connected: the premises belonged to another man.  The appellant did not give evidence before the jury but scientific evidence was called on his behalf as to the likely effect of ingesting crack cocaine as had been described.
6.	The police officers who gave evidence about the appellant in the street said that they saw him sitting in his car.  He got out of the car and appeared to exchange something with another man.  They did not see what it was and they did not see the appellant put anything in his pocket.  In cross-examination, they denied the suggestion, unsupported as is implicit in the fact that the appellant did not give evidence, that he, the appellant, had simply shaken hands with the other man.
7.	After that incident, the police evidence was that the appellant got back into his car, drove off and was followed by police officers and stopped. When they went to his door, according to them, he immediately took a small flat piece of of white coloured substance wrapped in plastic film and put it in his mouth.  An officer was unsuccessful in preventing him from swallowing it.  So he was arrested and taken to the police car.
8.	The premises with which the appellant had a connection were 5 Pennard House.  Mr Pryce, the owner, said the appellant was a regular visitor. On a day or two before the appellant's arrest, he, had been helping the appellant's sister move house. The appellant arrived and asked for the keys to Mr Pryce's flat and was allowed to take them because he said he wanted to go and get some food.  He, Mr Pryce, assumed that he had done just that.  Mr Pryce knew nothing about the crack cocaine or scales in the premises but he said there had been cling film in the kitchen.  He himself was initially charged in relation to these matters but the charges were later dropped.  Mr Pryce had four sons, none of whom lived with him and all of whom were called to give evidence.  All denied any knowledge of the drugs or the items for dealing to which we have referred.  There was evidence from the appellant's sister as to the possible legitimate source of the cash which had been found in his possession.  There was also the scientific evidence, to which we had referred, as to the possible impact of the consumption of cocaine from both prosecution and defence.
9.	When he was interviewed, the appellant claimed that, when approached by the police, in his car, he thought he was about to be robbed.  He denied swallowing anything. The money was to buy a car.  He had not visited Mr Pryce's home for weeks and certainly had not, as Mr Pryce claimed, taken the keys in the manner which we have described.  In a third interview, he eventually refused to answer any questions but he did deny that the drugs were his.
10.	The original grounds of appeal related, essentially, to the quality of the evidence and as to whether it showed that he had swallowed crack cocaine in the street.  The grounds were also critical of the evidence in relation to the search of the Pryce household and the inconsistencies within it.  It was contended that there were such gaps in the case for the Crown as to render the verdict unsafe.  Those criticisms, as we have indicated, were rejected by the Single Judge who commented, in remarks with which the Full Court in due course agreed, that the Recorder's approach to a submission of no case had been correct, and there were no sustainable grounds for criticising the summing-up.
11.	The Criminal Cases Review Commission, in the course of their investigations into this case, sought the comments of prosecuting counsel at the trial. He told them that the case had been put against the appellant, at trial, on the basis that the possession with intent to supply related to the drugs in the flat and the evidence as to what had gone on in the street was merely part of the chain of evidence, leading to, as it was said, proof of possession of drugs in the flat.
12.	The Criminal Cases Review Commission make this comment, having described the prosecution case at trial:
"By the conclusion of the judge's summing-up, however, the car incident had been elevated from being mere evidence in support of the flat allegation, to being a factual basis upon which the jury could find Mr Smith guilty of the offence." 
We shall refer, in a moment, to the passages in the summing-up to which the Criminal Cases Review Commission referred in support of that proposition.
13.	In the light of that transformation of the case the Commission, having considered a number of authorities, including Smith [1997] 1 Cr App R(S) 14, to which we shall return later, Brown 79 Cr App R 115 More 86 Cr App R 234 and Price [1991] Crim LR 465 reached the conclusion that this case should be referred to this Court on the basis that, while the majority of the jury were clearly sure that the appellant had possessed cocaine with intent to supply it, it was impossible to say whether all ten were sure that he possessed the same cocaine, that is to say, cocaine in the street and in the flat.
14.	On the appellant's behalf Mr Bradshaw, who did not appear at trial, embarked on his submissions by reliance on Brown where the appellant had been changed with fraudulently inducing investments.  At first he said that Brown clearly applied to this case.  Brown was a very unusual case.  Events followed a course which culminated in Lord Justice Eveleigh, who gave the judgment of the Court, saying at 119:
"In a case such as that with which we are now dealing, the following principles apply (i) Each ingredient of the offence must be proved to the satisfaction of each and every member of the jury subject to the majority direction (ii) However, where a number of matters are specified in the charge as together constituting one ingredient in the offence and any one of them is capable of doing so, then it is enough to establish the ingredient that any one of them is proved but because of the first principle above any such matter must be proved to the satisfaction of the whole jury.  The jury should be directed accordingly and it should be made clear to them as well that they should all be satisfied that the statement upon which they are agreed was an inducement as alleged."
The unusual course of that case included the jury asking the specific question:
"If the individual members of the jury find him guilty of different parts of the count, is he guilty of the whole count and is the verdict of guilty unanimous?"
The second unusual feature was that, in response to that question, the trial judge directed them that it was sufficient if all agreed that there was a dishonest inducement, even if they were not agreed as to which inducement was made. 
15.	Brown has been the subject of discussion and has been distinguished on a number of subsequent occasions in this Court.  It is those authorities which constitute the pitted battlefield to which, at the outset, we referred.
16.	The House of Lords in More 86 Cr App R 234, in a speech given by Lord Ackner, with which the other members of their Lordships' House agreed, declined to decide whether Brown had or had not been rightly decided because it was said that that appeal was not the appropriate vehicle for such a decision.  Lord Ackner, at page 252 of the report, went on to say this:
"Clearly each ingredient of an offence must be proved to the satisfaction of each and every member of the jury (subject to the majority direction). It is equally essential that a jury be directed in a manner easily comprehensible and devoid of unnecessary complications.  Whether or not a particular direction adequately expresses to the jury the obligation of the prosecution to prove to the jury's satisfaction each ingredient of the offence must depend essentially upon the precise nature of the charge, the nature of the prosecution's case and the defence and what are the live issues at the conclusion of the evidence."
17.	Mr Bradshaw drew attention to the way in which the learned Recorder left this matter to the jury, the prosecution having proceeded on the basis to which we have already referred as identified by the Criminal Cases Review Commission.  At 7E:
"...the Crown do not have to prove for the purpose of this charge that both quantities of drug were in his possession. One or other of them will be sufficient, provided you are sure that in each case it was crack cocaine.  But in this case the prosecution say that you can be sure that he was in possession of those two quantities, and they base it on the evidence which they have adduced in the case."
At page 11D the Recorder said:
"What the prosecution say is that if you are satisfied so that you are sure that what Police Constable Pysarczuk said he saw was in fact a piece of crack cocaine being put into the defendant's mouth, then you can apply that knowledge to other circumstances relating to the findings at the flat to infer well, if he was consuming drugs in the car then the likelihood - and it was crack cocaine, and you are sure of it, then you can draw from that fact an inference that the drugs found at Mr Pryce's flat were the defendant's. As I say, it depends what your view of the evidence is, Members of the Jury, in relation to both the evidences of the drugs at the flat and the evidence of what happened on 23rd of April when the defendant was stopped.  Well, Members of the Jury, that is the first element of the offence that the Crown have to prove - possession; [and we stress these words] either of the piece of crack cocaine in the car on the 23rd, and/or the drugs at the flat." 
He then went on to direct as to the second element of intention to supply.  At page 13C, he went to say:
	
"Say the prosecution, that you can infer an intention to supply from the fact that the defendant - if Police Constable Pysarcuzuk's evidence is correct - swallowed the piece of crack cocaine at the time of his arrest.  The prosecution say in addition you can rely on the evidence of the observations of the police officers on Lumb Lane on the afternoon of the 23rd of April, because they say that what was going on that afternoon was that there was a transfer."
At 13H:
"The prosecution say that you can infer an intention to supply drugs from the evidence of items that were found at Mr Price's home."
It is apparent from those passages, as the Commission concluded and as Mr Bradshaw submits, that, in a different way from that which the prosecution had advanced, namely, that the real issue for the jury's determination was possession or not with intent to supply of the drugs at the flat, the judge directed the jury that they could convict the appellant, if they were sure that he had possessed the drug either in the flat or in the street. Mr Bradshaw conceded, as his submissions developed, that Brown may not apply.  Nonetheless, he submitted, either the prosecution should have had separate counts in the indictment relating to the street and the flat; or the Recorder should have directed the jury in accordance with the way in which the prosecution presented the case, namely, that events in the street were merely background to or persuasive, in relation to events in the flat, but it was possession in the flat about which the jury must be sure before they could convict.
18.	On behalf of the Crown Mr Standfast, who did not appear in the court below, stressed that Brown was an unusual case. He rightly conceded, however, that it is not only in cases where there are a variety of ingredients set out in particulars in the indictment where a Brown direction may be called for.  He referred to Houlden 99 Cr App R(S) 244 and Smith (supra). He accepted that the Commission, in their report, had rightly identified the Crown's case at trial as being based on the drugs in the flat.  He drew attention to Flynn 82 Cr App R 319, Rowe [1990] Crim LR 344 and Price [1991] Crim LR 465, on which he placed particular reliance.  In that case, this Court, differently constituted, declined to quash convictions for dishonestly obtaining services by deception, and dishonestly evading existing liabilities. 
19.	So far as count 4 in the indictment was concerned, three particular representations giving rise to deception were identified in the indictment.  This Court concluded that it was not necessary for there to be unanimity in the jury in relation to each of the deceptions relied on by the prosecution, in that each would of itself have been sufficient to sustain a conviction for that particular offence.  The Court pointed out that the judge had ended his summing-up by saying "the verdicts which you are going to discuss and decide are going to be the verdicts of you all, that is unanimous verdicts." When the judge said that the Crown need only prove one of the allegations of deception the jury, this Court said, must be taken to have understood him to mean that the Crown need only prove one of the allegations so as to make them all sure of that allegation.  It did not need to be spelt out in greater detail. There was no discernible risk of misunderstanding.
20.	Mr Standfast submitted that the circumstances of the present case were sufficiently comparable to those in Price for him to be able to rely on Price in support of the safety of the appellant's conviction.  However, he conceded that the nature of the summing-up in the present case was such that some members of the jury may have been sure of possession in the street and some may have been sure of possession in the flat.  He conceded that whether or not the appellant was in possession in the street, or in the flat, or both, might well affect what was the appropriate sentence.
21.	It is to be observed that Lord Bingham of Cornhill CJ giving the judgment of the court in Smith, which was a case of affray, but in which Brown and Houlden, were considered by the Court, having dealt with circumstances in relation to affray where a continuous course of conduct was relied on so that there might be no need for separate counts, or specific directions, said this, at page 17E:
"Different considerations may, however, arise where the conduct which is alleged to constitute an affray is not continuous but falls into separate sequences. The character of the conduct relied on in each sequence may, in such a case, be quite different and so may be the effect on persons who are (or might hypothetically be) present at the scene. The possibility then arises that half the jury may be persuaded that the first sequence amounted an affray and the second did not and the other half of the jury may be persuaded that the second sequence amounted to an affray and the first did not. The result would then be that there was no unanimous jury verdict in support of conviction based on either sequence."
Although, as we have said, those observations were made in the context of affray, the principle which they enunciate is, in our judgment, applicable in the circumstances of the present case.  The reality is that the case, as advanced by the prosecution, was not that which the learned Recorder invited the jury to consider. He they went beyond what the prosecution were suggesting and invited the jury to convict on alternative bases, that is to say, possession in the street, or possession in the flat.  Because he directed the jury in that way, it is impossible to know whether the jury were unanimous in relation to possession in the flat, which was the crucial matter upon which the prosecution relied.  They may have been; they may not.  Some of them may have been sure that there was possession in the flat, some of them may have been sure that there was possession in the street.  Not all of them may have been sure that there was possession in the flat.
22.	In those circumstances, as it seems to us, it is unnecessary to express a view as to whether this can properly be categorised as a case within the Brown principle or not.  What is clear, in our judgment, is that the verdict of the jury cannot be regarded as safe.  The terms of this summing-up did not ensure unanimity by the jury on the matters about which it was necessary for them to be unanimous.  It follows that this appeal is allowed and the conviction quashed.
23.	We add merely this.  Had it not been the case that the appellant has already served the sentence which was imposed upon him, we would unhesitatingly have ordered a retrial.  It is apparent that there was very substantial evidence against him and this judgment should not be understood in any way as amounting to a declaration of his innocence.  But, for the reasons already given, this appeal is allowed and his conviction is quashed.