Neutral Citation Number: [2013] EWCA Crim 1744
Case No: 2013/2123/C1
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Friday, 20 September 2013
 
B e f o r e:

LORD JUSTICE FULFORD 

MRS JUSTICE COX DBE 
 
MRS JUSTICE SLADE DBE 
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R E G I N A 

v 

JUNIOR CLARKE LOPEZ
 
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Mr N Beechey appeared on behalf of the Appellant 
Mr D Stevenson appeared on behalf of the Crown 
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J U D G M E N T
1.	LORD JUSTICE FULFORD:  On 27th March 2013 in the Crown Court at Kingston upon Thames before Mr Recorder McCooey, the applicant was convicted in his absence of two counts of possessing a controlled drug of class A with intent to supply, namely cocaine (count 1) and diamorphine (count 2).  On 7th May 2013 before the same judge he was sentenced to 42 months' detention in a young offender institution on each count concurrent.  Before this court he applies for leave to appeal against conviction and sentence, the case having been referred by the Registrar.  
2.	We should say at the outset that the Crown does not oppose the application for leave to appeal the applicant’s conviction, although it is suggested that some of the applicant's various grounds of appeal are not sustainable.
3.	On 7th September 2012 at about 3.55 pm, police officers executed a search warrant at 70 Newton Avenue, Acton.  The only person in the premises was the applicant, then aged 17, who was in one of the bedrooms.  On the bed was a drawer with a large amount of cash (somewhere between £1,500 and £2,000).  The bank notes were split into bundles, each wrapped with a single note, and there was a large quantity of coins in a carrier bag.  The applicant gave his name, address (25 Chester Road, Slough) and date of birth.  He was handcuffed and taken into the living room.  On the sofa in the living room police found a ball of Clingfilm which was later found to contain 13 wraps of cocaine (count 1) and 17 grams of diamorphine (count 2).  Elsewhere in the same room they also found a knife with white substance on the blade, some large pieces of Clingfilm covered in brown or white powder which were in the bin, a set of scales, Clingfilm and a large quantity of correspondence in the name of somebody called Chanice Rainford‑Clark, the apparent occupant of the flat.  On the bathroom windowsill the police found a spectacle case containing a second ball of Clingfilm which contained another 20 wraps of diamorphine, also part of count 2.  The total street value of the 13 wraps of cocaine was £100 and the 37 wraps of diamorphine was £473.  Tests were later carried out on the respective wrappings and the applicant's fingerprints or DNA were not found on any of them.
4.	At about 4.30 pm Chanice Rainford‑Clark, aged 19, was spotted near the address paying close attention to what was going on and was arrested on suspicion of possession with intent to supply class A drugs, although she was not charged with any offence.  The applicant was arrested for those same offences.  The police went to 25 Chester Road in Slough and were told by the applicant's brother that his parents had "kicked him out" a year before and that he thought he was living in a hostel in Slough.  
5.	The following morning the applicant was interviewed under caution without a solicitor and he was charged.  He had admitted in interview that he had been selling drugs in £10 deals for about three months and that the money was his.  He said Miss Rainsford‑Clark was his friend and that he had been staying with her for about two weeks.  She knew about the drugs but was not involved at all.
6.	In due course, on 20th December 2012 at the plea and case management hearing ("PCMH"), the applicant was arraigned in the Crown Court and he entered a not guilty plea.  He submitted a defence statement in which he retracted the admissions we have just set out.  He denied knowing about the drugs in the house or that he had been in possession of them and he indicated that he had never touched them or any of the paraphernalia.  He said that he had slept in the lounge and he had only been in the bedroom to use a PlayStation.  He said that he had lied in interview to protect the true owner of the drugs, which he regretted, and he made various requests for disclosure.
7.	During the PCMH the defence requested that PC Sturridge, the officer in the case, attend to give evidence at the trial.  Although the history is sketchy, it appears that the applicant had had some medical problems in the past because there was reference during the PCMH for the need for a letter from a medical practitioner if there was to be an adjournment of the case for medical reasons.  
8.	The case was transferred from Isleworth Crown Court to Kingston Crown Court.  It was placed in a warned list at Kingston for a two week period that had been identified, as we understand the position, at the PCMH and at 10.00 or 10.30 on 26th March 2013, the day when the case was put in the list for trial (we assume this latter step was taken on the previous afternoon), prosecuting counsel and the officer in the case failed to attend.  The reason for counsel's absence was that the clerk in the set of chambers that had been sent the brief had not been notified by the Crown Prosecution Service of the new trial venue and therefore he missed the listing because the court number allocated to the case changed when the case was transferred.  Later in the morning, Mr Stevenson, who appears before us today, attended on behalf of the prosecution.  He had been briefed at the last moment.  PC Sturridge, the officer in the case, did not attend court, notwithstanding the defence indication at the PCMH that he was to be called to give evidence.  He had not been warned to attend, but he was contacted and fortunately was able to give evidence on 27th March.  Finally on the subject of non-appearance, the appellant also did not attend court.  When questioned about his absence, counsel then instructed ("trial counsel") told the court that his instructing solicitors had been contacting the appellant via his girlfriend's mobile telephone, because the applicant's own mobile had been seized when he was arrested.  Contact with the girlfriend had ceased about a week before the hearing, in that the telephone was no longer answered, although messages could still be left on the answering service.  Trial counsel told the court that a message had been left to the effect that the case had been transferred to Isleworth and the applicant was reminded that it was in the current warned list but no acknowledgement of that message had been received.  Attempts to contact the girlfriend on this telephone number on 25th and 26th March 2013 had been unsuccessful.  As the Recorder stated during exchanges with counsel, this was an inefficient and precarious method of keeping in contact with a defendant awaiting trial.
9.	We are told by counsel now representing the applicant, Mr Beechey, that he had split up from his girlfriend a week before the trial and hence the breakdown in this method of communication.  The Recorder simply observed that it was the applicant's obligation to contact his solicitors to find out whether the case was in the list.  
10.	Trial counsel was asked by the judge as to his views as to what should happen.  The response was simply: "It is very much a matter for the court and the Crown as to whether the case goes ahead" and "I have instructions, so I am in a position to represent Mr Lopez in the event the trial goes ahead today."  
11.	Neither prosecution counsel nor the applicant's trial counsel made further submissions to the judge on the issue.  Once it was clear the officer in the case was able to give evidence, the Recorder failed to give any ruling on whether he should try the accused in his absence.  Apart from discussing timetabling, the court simply proceeded on the basis that the defendant would not be present for his trial.  Trial counsel took no steps to avoid that result.  
12.	The prosecution case, as presented during the trial, was that the applicant's admissions in interview were true and that he was in possession of all the drugs in order to supply them as he had indicated.  It was suggested his admissions were consistent with what was found in the flat.  The defence case was put in accordance with the defence statement and trial counsel relied on certain misunderstandings or mistakes on the applicant's part about the drugs as identified in the interview and the prosecution was criticised for failing to pursue some of the forensic tests that had been requested.  Counsel suggested that the result of those tests might have put the matter beyond doubt in favour of the applicant.  There was evidence before the jury, although it was not referred to in the summing‑up, that fingerprints on a ball of wrapping in the flat matched a man by the name of Dwayne Stephens.  
Discussion 
13.	The approach that should be taken to trying defendants in their absence is abundantly clear and has been for a considerable period of time.  A decision "to commence a trial in the absence of a defendant should be exercised with the utmost care and caution" (see Lord Bingham, R v Jones [2003] 1 AC 1, paragraph 13).  One of the most important factors that the court must resolve is whether the defendant deliberately and consciously chose to absent himself from the court (ibid Lord Nolan, paragraph 18).  Even if the court resolves that question against the defendant, the court must go on to consider all of the relevant circumstances which include as set out by the Court of Appeal in Jones [2001] QB 862, paragraph 22 and expressly approved by the House of Lords:  
"22 ... 
 (ii) whether an adjournment might result in the defendant being caught or attending voluntarily and/or not disrupting the proceedings; 
 (iii) the likely length of such an adjournment; 
 (iv) whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation; 
 (v) whether an absent defendant's legal representatives are able to receive instructions from him during the trial and the extent to which they are able to present his defence; 
 (vi) the extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him; 
 (vii) the risk of the jury reaching an improper conclusion about the absence of the defendant; 
 (viii) the seriousness of the offence, which affects defendant, victim and public; 
 (ix) the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates; 
 (x) the effect of delay on the memories of witnesses; 
 (xi) where there is more than one defendant and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present.
14.	The judge failed to consider any of these issues and we fear he was not assisted by counsel who did not alert him to the steps that needed to be followed, notwithstanding the full analysis provided in this regard in the two leading practitioner guides, Archbold and Blackstone.  The judge had no material before him on which to base a decision of "the utmost care and caution" that the applicant had "deliberately and consciously" chosen to absent himself from the proceedings.  The system established by his solicitors for keeping in touch with him was, as the Recorder observed, precarious.  Nonetheless, he had seemingly been in contact with his lawyers during the period leading up to trial and it was simply unexplained as to why during the week before the 26th March the telephone of his girlfriend ceased to be answered.  Without further investigation, the possible explanations for this state of affairs were, in reality, limitless and his absence may not have involved a deliberate and conscious decision to abscond.  The judge and trial counsel had no means of knowing the reason for his absence.
15.	We note additionally that given the applicant's account was that his confession in interview was not genuine, his defence to a very great extent depended on his own evidence as to why he had, as he suggested in his defence statement, falsely implicated himself in order to protect a friend of his.  That factor standing alone should have given the judge reason to pause before moving immediately on the scant information before the court into a trial in‑absentia.  Accordingly, there was no proper justification for proceeding with the trial at that stage without the defendant.  
16.	We emphasise this conclusion is not meant to deter judges from making decisions of this kind when there is a proper foundation, based on direct evidence or sustainable inferences that the accused has waived his entitlement to attend his trial.  Furthermore, an undoubtedly relevant factor is that defendants have a responsibility to maintain contact with their lawyers by means that enable communication at short notice and they must ensure that they are aware of the date of their trial or the period of any relevant warned list.  In the latter situation, they will need to contact their solicitors or the court on a daily basis to find out whether the case has been listed the following day.  It may be thought to be a matter of good practice for defendants to be reminded in terms of these obligations by the judge at the PCMH.  
17.	In Jones, the House of Lords emphasised the importance of bespoke directions to the jury on the issue of the accused's absence and particularly the instruction that they should try the case solely on the evidence.  They should not speculate as to why the defendant was absent and they should not assume that the defendant's failure to attend court in any way established guilt (ibid paragraph 66, per Lord Rodger of Earlsferry).  As was observed, these directions are "no mere formality" (paragraph 67) and this requirement for careful directions is set out comprehensively for the convenience of judges in the Crown Court Bench Book (Directing The Jury) between pages 23 and 26.  It is emphasised that an explanation should be given to the jury at the first opportunity during the trial and repeated in the summing‑up.  The judge failed to direct the jury on this issue during the summing‑up and it would appear he did not give a suitable direction at any other stage of the trial.
18.	In the circumstances of this case, the decision to proceed in the absence of the applicant without further investigation or proper consideration of the issue and the failure to give a direction to the jury about his absence in the summing‑up, were material irregularities in the trial that render the jury's verdict unsafe and the convictions must in the result be quashed.
19.	It follows that it is unnecessary for the court to go on to consider the other grounds of appeal that have been helpfully advanced in written submissions by Mr Beechey.  
20.	However, before we part from this case, we regret the need to observe that the summing‑up more generally gives this court cause for grave concern.  Putting to one side the wholesale lack of structure in the judge's remarks and the appearance that the summing‑up was delivered without any real preparation, it is defective in a marked number of respects.  We take three conspicuous examples.  
21.	First, although the Recorder informed the jury that the prosecution had brought the case, he never explained that the burden of proof rested on the Crown and that in consequence the defendant did not have to prove his innocence.  It is arguable that in a case in which the defendant was not present, even greater importance attached to that direction than in other trials.  
22.	Second, although on more than one occasion the judge told the jury they should only convict the defendant if they were sure of guilt, this was fatally confused at the end of the summing‑up when the judge directed the jury: 
"... and the verdict which I require of you, or the verdicts, are ones where you are all unanimously satisfied that you are sure either the defendant is guilty or not guilty as charged."  
This clearly left the choices as twofold.  The jury had to decide whether they were sure of his guilt or sure of his innocence.  This direction undermined one of the central tenets of our system of criminal justice, namely that the accused is entitled to the benefit of a reasonable doubt.  In order to be acquitted, he does not have to establish – to make the jury sure of – his innocence.  
23.	Third, the judge gave the jury little, if any, meaningful direction as to the ingredients of the two offences of possessing a controlled drug with intent to supply and the elements that needed to be proved.  The directions to the jury on the charges were as follows:  
"The case is one which is very familiar in this country.  We all know ‑‑ indeed around the world ‑‑ that drugs are everywhere, and certain drugs (most drugs) we can take from the prescriptions and we can use them for our health and there is no problem.  But there are others that these drugs have been determined to be dangerous to health and should not be taken and, in particular, should not be dealt with, or sold, or handed to other people.  And, therefore, the courts do try these cases.  
This is not a case of a slap on the wrist.  This is a serious case, because we are dealing with class A drugs.  We are not dealing with class C drugs or class B.  We are dealing with the most serious drugs (class A):  Cocaine and heroin.  
And the allegation is not just that the defendant was in possession (in his pocket) of some drugs.  But, here the case for the Crown is that he was not only in possession, but he had possession with intending to supply those drugs to third parties for cash.  And we have seen, what [the] Crown would say, here all the accoutrements of a drug dealer (which is the things that go with the trade of dealing in drugs).  The Crown would say, 'Look at the environment.  The Environment is one which is a two‑bedroomed flat and it has drugs in the bedroom ‑‑ cash in the bedroom, drugs in the lounge, scales, wraps, all the things that are needed to deal in drugs rather than just being simple possession.'  So the charge against the defendant is a serious one." 
That was the full extent of the judge's directions on the charges.  
24.	In this case, the applicant was found in someone else's property and at the very least the judge should have directed the jury that in order to convict him they would need to be sure that the drugs were in his custody and under his control.  In other words, the jury would need to have been sure that he was not simply a visitor to a flat in which there happened to be drugs belonging to someone else.  It is instructive that after the jury had been in retirement for over an hour they sent a note to the judge asking for assistance on the meaning of the word "possession".  
25.	There were many other faults with this summing‑up but those three examples will suffice for these purposes.  
26.	In the result, for multiple reasons, we have no hesitation in granting leave to appeal.  The appeal against conviction is allowed and we quash both verdicts.  The Crown does not seek a retrial and in the result the appellant is to be released.