R v Ashton-Rickardt (Puerto Acevedo)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSKILL |
| Judgment Date | 22 April 1977 |
| Judgment citation (vLex) | [1977] EWCA Crim J0422-11 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 6208/B1/76 |
| Date | 22 April 1977 |
[1977] EWCA Crim J0422-11
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Roskill
Lord Justice Shaw
and
Mr. Justice Talbot
No. 6208/B1/76
MR. R. BARRATT appeared on behalf of the Appellant.
MR. R. GORDON appeared on behalf of the Crown.
(As approved by the Judge)
This appeal comes before this court pursuant to the certificate granted by His Honour Judge Bulger at the conclusion of the trial of the Appellant, Carl David Ashton-Rickardt, at Gloucester Crown Court on the 30th November 1976. In fact, though one readily understands the judge's readiness to grant a certificate, it was unnecessary because there was a point of law involved and it is necessary once again to mention that there is no power to grant a certificate where a point of law arises.
The Appellant had been convicted before the learned judge of possession of a controlled drug, and the learned judge passed sentence upon him of six months imprisonment. A sentence of three months imprisonment which had been imposed in August, 1975, by Gloucester City Magistrates, for an earlier unlawful possession of a controlled drug, was activated and ordered to run consecutively. Thus, the Appellant received a total sentence of nine months imprisonment.
The ground of appeal in its final form, for which we gave leave this morning to Mr. Barratt, who appeared for the Appellant below and has appeared for him in this court, is that the learned judge in his summing up misdirected the jury as to the burden of proof which rested upon the Crown and as to the burden of proof, if any, which rested upon the Appellant.
The facts were of the simplest, and had the summing up been as it should, it is difficult to see what defence the Appellant could have to this charge. On the 9th-10th July, 1976, the police found him asleep in his Hillman Imp motor car; he was taken to the police station and his car was then searched; in the pocket of the driver's door - that is the door alongside which he was lying asleep - they found a reefer. That reefer was analyzed and found to contain some 200 milligrammes of cannabis resin. When they asked him about it the Appellant replied, "It is not mine" when asked if he knew what it was, he replied, "It looks like a joint to me." When he was asked if anybody else had been in the car with him that evening, the Appellant said "No".
We do not have a transcript of the evidence but it seems plain from the learned Judge's summing up that the Appellant at no time contested that police evidence at the trial, though in his evidence he did speak of a passenger who had been in his car earlier on that same evening.
That incident took place, as I mentioned, during the night of the 9th- 10th July - in fact, in the early hours of the 10th. Later that morning the police searched the Appellant's flat. In the waste paper basket they found a piece of torn card from a Benson & Hedges cigarette packet. It might be mentioned that the Appellant had a packet of this brand of cigarettes on him when he was interviewed. The piece of card composing the end of the reefer found in the car was described in evidence as a "mechanical fit" with that piece found in the waste paper basket. In the flat were also found cigarette papers and joss sticks.
At the trial the Appellant gave evidence that the day before his arrest he had met a man, who he described as a Scotsman named Bruce, whom he claimed to have known some two years previously: that Bruce was a "hippie" type and had spent the night in the Appellant's lodgings at the Appellant's invitation; that he remained there alone the following day and that Bruce had asked him if it would be all right to make up a reefer. He had not done so in the Appellant's presence, or to his knowledge. Later he gave Bruce a lift to the Motorway: his defence was that Bruce must have leaned over and put the reefer into the car door pocket as a gesture of thanks, when the Appellant was out of the car getting some petrol. Not surprisingly, the jury disbelieved that somewhat improbable explanation.
Accordingly, there cannot be the slightest doubt that this man was in possession of a controlled drug and, therefore, was liable to be convicted of an offence against Section 5 of the 1971 Misuse of Drugs Act. That section provides: "(1) Subject to any regulations under section 7 of this Act for the time being in force, it shall not be lawful for a person to have a controlled drug in his possession". Subsection (2), says: "Subject to section 28 of this Act and to subsection (4) below, it is an offence for a person to have any controlled drug in his possession in contravention of subsection (1) above". Therefore, once it was shown that the Appellant had a controlled drug in his possession he was liable to be convicted, unless he could avail himself of one or more of the defences which were open to him.
Now the first thing that the Crown had to prove, and the burden of proof, of course, was on the Crown, was that this reefer was in the Appellant's possession. The learned Judge dealt with this matter in the summing up in this way. At the bottom of page 2, he said: "You have got to consider - we will see in a moment how far you have to be sure about it - whether, on this day in question, the Defendant was in possession of a controlled drug. Well normally, in offences like burglary, or larceny, the Prosecution have got to prove the case from beginning to end. They have to prove everything. There are a few cases where some obligation rests on the Defendant to prove something, and this is one of those cases. First of all, what do the Prosecution have to prove? The Prosecution have to prove beyond reasonable doubt - they have to make you sure - that the Defendant had in his possession a controlled drug". So far so good. The Judge went on: "We know it was a controlled drug. Was it in his possession? Members of the Jury, it was found in his motor car, in the pocket of his off-side door. He was the only person who drove that car. It was his car. You will have to ask yourselves, as a matter of commonsense, was it in his possession? It is the same as when something is in his flat. Is it in his possession in his pocket? It is a matter of commonsense. Ask yourselves, what do you think about that? Ask yourselves, have the Prosecution made you sure about it? 'Have they satisfied us beyond reasonable doubt?'" Then, at the bottom of page 4 and the top of page 5, the Judge went on: "I said just now that in this particular case - unlike most criminal cases - there is a division of the burden of proof" - pausing there, with all respect to the learned Judge, that is not the happiest of phrases and one which should be avoided - "I do not want to complicate the matter. I will put it as simply as I possibly can. The Prosecution have to prove he was in possession of a controlled drug. You have heard the police evidence about it. The property was in his door, it is not contradicted. Ask yourselves, 'Are we satisfied, beyond reasonable doubt, that he was in possession of it?'". That is the totality of the direction which the Judge gave the jury in relation to possession. It will be apparent from what I have read from those passages at pages 2, 4 and 5, that thus far there is no word about the need for the Crown to prove knowledge of the presence of the "thing" - and I use the word "thing" advisedly, as it was used in Warner's case to distinguish the article from the controlled drug, which in fact it was - knowledge of the presence of the "thing".
Then the Judge went on: "The next question is, did he know that it" - and that must, in the context, mean the controlled drug - "was there, or did he know it was a controlled drug? Now on that, you see, the Prosecution have not got to satisfy you beyond reasonable doubt. What we call 'the burden of proof' rests on the Defendant, so far as he has got to prove to you that he did not know it was there, or did not know it was a controlled drug. But, Members of the Jury, he has not got to prove it to anything like such a high extent as the Prosecution have to prove their part of the case.
"Once you are satisfied - if you are sure that he was in possession of a controlled drug - you then have to ask yourselves, 'Has the Defendant, by his evidence, satisfied us that it is more likely he did not know?'...
To continue reading
Request your trial
-
R v Lambert
...is nothing to show that Parliament intended any other meaning to be given to the word in the later legislation ( Reg v Ashton-Rickhardt [1978] 1 WLR 37, 42). The meaning of possession for the purposes of the Misuse of Drugs Act 1971 is now well established. The first of the two elements, c......
- R v Lambert
-
Bridgelall v Hariprashad (Officer Customs Anti-Narcotics Unit)
...CA. 6 (1967) 63 WWR 174, [1968] 2 CCC 183. 7 [1969] 2 AC 256. 8 (1968) 52 Cr App Rep 334, 112 Sol Jo 417. 9 [1986] LRC (Crim) 849. 10 [1978] 1 All ER 173. 11 (1964) 6 WIR 235. 12 (1964) 6 WIR 350. 13 (1995) 54 WIR 233 . 14 Bridgelall v Hariprashad (Full Court, 4 December 2009) per Chang CJ......
-
Britton v Paul
...and, more recently, in R. v. Goodchild and R. v. Mitchell [1977] 2 All E. R. 163 and 168, respectively, and R. v. Ashton — Rickardt [1978] 1 All E.R. 173. But in all those matters there were convictions following pleas of “not guilty”, and the central question propounded for determination h......
-
Court of Appeal
...has beenput on inquiry. Where, as here, that is not so, actual knowledgemust be proved: see, per Roskill L.J. in R. v. Ashton-Rickhardt[1978]1 All E.R. 173. But the question of actual knowledge wasnot in issue in that case, so that the case itself could afford noauthority for counsel's prop......