R v Chatwood
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE FORBES |
| Judgment Date | 19 October 1979 |
| Judgment citation (vLex) | [1979] EWCA Crim J1019-4 |
| Docket Number | No. 1626/B/79 No. 1628/B/79 No. 1833/B/79 No. 1631/B/78 |
| Court | Court of Appeal (Criminal Division) |
| Date | 19 October 1979 |
[1979] EWCA Crim J1019-4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Bridge
Mr. Justice Forbes
and
Mr. Justice Sheldon
No. 1626/B/79
No. 1627/B/79
No. 1628/B/79
No. 1833/B/79
No. 1631/B/78
MR. R. BENNETT appeared as Counsel on behalf of the Appellants Chatwood, Egan, and Flaherty.
MR. E. PEREZ appeared as Counsel on behalf of the Appellant Proctor.
THE APPLICANT Walker did not appear and was not represented.
MR. A. STUTTARD appeared as Counsel on behalf of the Crown.
On 26th March 1979, at the Crown Court at Proston, these four Appellants pleaded not guilty to a number of related offences concerned with the possession of controlled drugs. In addition, Egan was charged with theft.
The case arose out of the finding of the body of a drug addict named Fisher by the side of a motorway in Lancashire in the middle of June 1978. Subsequently the police made extensive enquiries among those involved in the abuse of drugs in the area, including these four Appellants - Chatwood, Egan, Flaherty and Proctor. Each of them denied having anything to do with Fisher's death, but each admitted, orally and in writing, to police officers, that they had been in possession of the various drugs specified in the indictment. Egan too admitted that he had stolen £3 from the wallet of the dead youth, apparently to pay for the transport of the body to the motorway.
The case was complicated by the fact that both the forensic scientist called for the Crown and one of the experienced police officers from the drug squad were asked questions about the nature of the drug heroin itself. The forensic scientist (cautious as scientists usually are) said that he could not tell whether a substance was heroin without analysing it. The police officer (with 9 years experience with the drug squad) said effectively that while he might have a pretty good suspicion about a substance being heroin, he could not be certain.
On the basis of that evidence, submissions were made to the trial judge that there was insufficient evidence to go to the jury in the case of these men, because the only evidence against them was their own belief that the drug that they had administered to themselves was heroin or pethidine (whichever it may have been in the individual oases) and that that belief was not good enough.
Those submissions were supported by reference to a number of cases. one or two of which I shall have to turn in a moment.
The three Appellants Chatwood, Egan and Flaherty did not give evidence but Proctor did. Proctor, in his evidence, maintained that the substance with which he had injected himself was flour. The cogency of that evidence was somewhat eroded, because evidence had been given by the detective sergeant in the prosecution case that during the course of questioning Proctor, having admitted possessing heroin, had gone on to say: "How can you prove it was heroin? I could say it was flour: in fact I probably will say it was flour when it comes to court. It was poor stuff, it made me sick after cranking it". "Cranking it" is the cant term for injecting it, as I understand it. The evidence of the interview goes on: (Q) "How long have you been abusing drugs?" to which Proctor replied: "Since I was about thirteen years old. I'm not as fit now as when I first started I'II tell you that. They do say it's habit forming. I was a registered addict at one time". Then Detective Sergeant Oldcorn said: "If you have been taking drugs for this length of time, you of all people should know the difference between heroin and flour" To which Proctor replied: "I know the difference all right; that was heroin I got off that lad. Poor stuff, I know, but you" (i.e. the police) "have got to be one step ahead. You have to prove it was heroin". In face of that statement, that he knew perfectly well that it was heroin, the jury convicted him, quite clearly disbelieving his evidence that he thought it was flour and accepting the evidence of that statement that it was heroin.
There is that distinction between the case of Proctor and the others, that he did give evidence - unlike the others - and that the jury were able to test that evidence against what he had said in his statement.
The case got off - if one may put it this way - on the wrong foot by the fact that in their submissions counsel for the defendants relied on the case in the House of Lords of Haughton v. Smith (58 Cr. App.R.198)Haughton v. Smith was a case concerned with the question whether a person could be guilty of an attempt to commit a crime, (in that case handling stolen goods) when his belief that he was committing it turned out to be erroneous. I need not go into the details of their Lordships. Opinions in the House. It is sufficient to say that really the proposition which that case established was that merely to have an intention to commit a crime, without more, could not be a crime. If I may turn round the usual aphorism, mens non facit reum nisi actus sit reus. The case was not concerned in any way with any question of proof that the goods were stolen, or of whether an admission by a defendant that the goods were stolen goods amounted to evidence of that fact, or anything of that kind at all. It was a case concerned solely with this issue about attempt In fact of course in that case - and I need not go into the facts - the prosecution had established by their evidence that the goods were not in fact stolen at the time they were handled.
The case of Mieras v. Rees, upon which much reliance was placed in the Crown Court, was a case to the like effect. That is reported only in the 1975 Criminal Law Review at page 224. The account of that case in that publication is inaccurate. The defendant was not charged, as is said there, with unlawfully supplying a substance, believing it to be a controlled drug: he was, in fact, charged with attempting (under Section 19 of the Misuse of Drugs Act, 1971) to commit an offence under Section 4 (3) by unlawfully supplying a substance believing it to be a controlled drug, in this case one called STP. The only evidence against him was his own statement that he supplied the substance believing it to be STP, but had subsequently been told that it was not in fact STP, but something similar. Once again this case was clearly concerned with attemp and not with whether there was prima facie evidence that the substance supplied was a controlled drug. Had there been such evidence, the proper charge would have been one of supplying it under Section 4(3), as was pointed out by Michael Davies J. in the judgment of that case in the transcript at page 2. Having dealt with the defendant's statement to which I have just referred, he goes on: "It is perfectly plain that the diffi- culty which the prosecution were in was apparent to them before the...
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