R v Burke
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ACKNER |
| Judgment Date | 21 June 1985 |
| Judgment citation (vLex) | [1985] EWCA Crim J0621-1 |
| Docket Number | No. 221/C/81 |
| Court | Court of Appeal (Criminal Division) |
| Date | 21 June 1985 |
[1985] EWCA Crim J0621-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Ackner
Mr. Justice Jupp
and
Mr. Justice Anthony Lincoln
No. 221/C/81
MR. B. AVES appeared for the Appellant.
MR. M. FIELD appeared for the Crown.
The appellant, Loderick Burke, appeals against his conviction in the Wood Green Crown Court on 17th December, 1984. The appellant was tried together with Emma Macauley on an indictment containing five counts of offences relating to cannabis. There was a sixth count against Emma Macauley alone of obstructing the police in the execution of their duties. On the first day of the trial, the appellant pleaded guilty to count one of the indictment - possessing 4.35 grammes of cannabis. This count arose out of a raid by the police on the appellant's maisonette in North London, carried out on 5th March, 1983. The police on that occasion not only found the cannabis, but seized £1,920 in notes, bundled into packets of £100 each.
The remaining counts related to a second raid by the police on the appellant's premises on 6th November, 1983. To these counts, the appellant having pleaded not guilty, a five-day trial followed, at the end of which the jury, by unanimous verdicts, found him guilty on count four of possessing 47.45 grammes of cannabis which the police discovered during this second raid; also on count two of supplying cannabis on or before that date. Emma Macauley was convicted of assisting in the supply and also of intentionally obstructing the police officers in the 6th November, 1983 raid.
There is no criticism of the summing-up by the learned judge, His Honour Judge Krikler. The grounds of appeal relate entirely to what is alleged to be the wrong exercise of his discretion. First, in giving leave for the appellant to be cross-examined on his previous conviction in December 1981 for possession of cannabis with intent to supply, secondly, on his plea of guilty to the first count, and, finally, on the result of the search on the earlier raid when, as previously stated, £1,920 in notes was discovered, this raid having resulted in his plea to possession of cannabis as at the beginning of the trial.
The case for the prosecution was that on 6th November, 1983 (the second raid) at about 10.15 in the evening, six police officers raided the premises as a result of information they had received. The officers forced the front door open, rushed upstairs and forced the bedroom door open, whilst a woman police constable named Haggerty remained at the back of the premises to keep observation. She heard two crashing noises (probably the front door being broken and then the bedroom door being opened) and immediately after saw the accused, Emma Macauley, throw a bag outside from an upstairs window. The woman police officer caught the bag, went into the house and confronted the appellant with it. Meanwhile, the other police officers had found both the appellant and his co-accused Macauley together in the upstairs bedroom. According to the police evidence, the appellant admitted that he had cannabis on the premises, but pointed out that it was only a small amount. The police officers found various quantities of cannabis and a large bag of herbal mixture used to make cannabis go further. They also removed a bag which contained 60 small plastic bags and a pair of scales. In the pan of the scales were found traces of 11 milligrammes of cannabis. The officers also found a substantial amount of cash, totalling £1,343, in a drawer.
On the following morning, it having been too dark and the premises too badly lit for a proper search to be made then, the officers went and searched the appellant's premises further. They found a small amount of cannabis in the kitchen. The total amount of cannabis recovered was 47.45 grammes. It was with possession of this amount of cannabis with intent to supply, that the appellant was convicted on count four.
On the same day, Detective Constable Hay, in the presence of Woman Police Constable Haggerty, interviewed the appellant who, to quote the learned judge, made substantial admissions to substantial parts of the case. These admissions, and indeed the whole interview, was produced by the officers in the form of what purported to be a contemporaneous note written by Detective Constable Hay, which they stated the appellant refused to sign.
The appellant gave evidence. He denied the offence utterly. On the night in question he had left his friend, the co-accused Macauley, downstairs in the front room waiting for a lift home. He himself was in bed when the officers entered his bedroom and searched it and found the money in a drawer. He claimed that £500 of the money was his, whilst £800 belonged to a friend he only knew as Bill and did not know where he lived. Some £200 of his own money was the result of successful gambling on horses, but he could not remember the details of his good fortune. However, the balance represented savings from his earnings from his work. He had not worked since January 1983, i.e. two months prior to the first, i.e. the March raid. According to the appellant, he had heard someone during the course of the search shout, "I've found something", and said that an officer must have dropped a white plastic bag which was on the premises and contained horse manure and wood shavings out of the window, and then had gone to pick it up and bring it back into the house. He maintained that his co-accused Macauley remained downstairs during the whole time and that no one else threw anything out of the window; the officers never asked about cannabis; there were no drugs on the premises; he maintained the scales were his kitchen scales and cannabis could not have been found on them. He said that the Woman Police Constable Haggerty did not come into the bedroom; he did not see here until the following day at the police station. In short, he denied the offences, said that the police had concocted the evidence of cannabis at his house and did not accept that the plastic bags were on his premises. He agreed that an interview had taken place, but he had not been asked the questions or made the admissions alleged. The herbal material found in a white plastic bag he said was used to feed plants and not to mix with cannabis.
If the defendant's evidence were true, it is clear, first, that at least four police officers had conspired together to concoct a case against the defendant and had committed perjury in order to carry out the conspiracy. There was no room for mistake, exaggeration, even of a painting of the lily. Secondly, the police had themselves brought the cannabis to the appellant's house, planted it there and pretended to find it in the appellant's possession. Thirdly, Detective Constable Hay and Woman Police Constable Haggerty had manufactured questions and answers and purported to record them as made in a contemporaneous note of interview. Fourthly, that unless the forensic scientist had concocted his evidence, the officers had deliberately contaminated the pan of the scales with cannabis resin.
There could scarcely be a more blatant case of imputations on the character of the prosecution witnesses. Accordingly, there could not be and there was no challenge to the Judge's jurisdiction under the Criminal Evidence Act 1898, section 1(f)(ii), to permit the cross-examination of the appellant as to his previous convictions. Thus, the sole question for the learned judge was whether or not this was a fit and proper case for the exercise of his discretion.
The leading case is the decision of the House of Lords in Selvey v. Director of Public Prosecutions (1968) 52 Cr.App.R. 443, but for the reasons which will become apparent later, this decision was not drawn to the learned judge's attention. It may be convenient at this stage to set out the cardinal principles which readily appear from that decision. These are: 1. The trial judge must weigh the prejudicial effect of the questions against the damage done by the attack on the prosecution's witnesses, and must generally exercise his discretion so as to secure a trial that is fair both to the presecution and the defence, (thus approving the observations of Devlin J., as he then was, when giving the judgment of the full court (five judges) of the Court of Criminal Appeal in R. v. Cook (1959) 43 Cr.App.R. 138, at 143).
2. Cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused, even though there may be some tenuous grounds for holding it technically admissible (thus approving the observation made by Lord de Parcq, giving the opinion of the Privy Council in Noor Mohamed v. R. (1949) A.C. 182, at 192. Thus, although the position is established in law, still the putting of the questions as to character of the accused person may be fraught with results which immeasurably outweigh the result of questions put by the defence and which make a fair trial of the accused almost impossible (thus approving the observations of Singleton J. in R. v. Jenkins (1945) 31 Cr.App.R. 1, at 15).
3. In the ordinary and normal case the trial judge may feel that if the credit of the prosecutor or his witnesses has been attacked, it is only fair that the jury should have before them material on which they can form their judgment whether the...
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