R v Gent (Stuart Brian)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LLOYD |
| Judgment Date | 09 March 1989 |
| Judgment citation (vLex) | [1989] EWCA Crim J0309-10 |
| Court | Court of Appeal (Criminal Division) |
| Date | 09 March 1989 |
| Docket Number | No. 1653/F3/88 |
[1989] EWCA Crim J0309-10
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Lloyd
Mr. Justice Saville
and
Mr. Justice Mckinnon
No. 1653/F3/88
MR. R. WINBERG appeared on behalf of the Appellane.
MR. R. BURNS appeared on behalf of the Crown.
On 5th February 1988 in the Crown Court at Leicester, this appellant was convicted on the directions of the Judge on three counts of conspiracy to supply amphetamines. He was sentenced to a total of four and a half years' imprisonment.
He now appeals against conviction by leave of the single Judge.
The case has had an unfortunate history. We have had to do our best to piece it together from what we have been told by counsel.
The trial commenced at Derby Crown Court on 21st September 1987. On 25th September the jury was discharged. The trial restarted in January 1988 at Leicester.
One of the witnesses called by the prosecution at the abortive trial was Mr. Rose, a retired police officer. He had made a witness statement dated 30th October 1986, in which he said that the appellant had given him accurate information relating to drug trafficking. In particular he had given an account of large scale distribution of amphetamines in Nottinghamshire, and had told him that a man called Marshall was the supplier. Mr. Rose passed on this informtion to Detective Inspector Shand of the Nottinghamshire Drugs Squad. It was suggested that the appellant should make a controlled purchase from Marshall. The appellant agreed.
When the trial restarted in January 1988, the prosecution, for whom leading counsel was by now acting, elected not to call Mr. Rose. Presumably the prosecution no longer regarded him as a witness of truth. But whatever the reason, they made him available to the defence, as was their duty. A witness summons was issued to secure his attendance at the fresh trial. But he failed to comply. He was said to be unfit.
Evidence for the prosecution was called in the normal way. The appellant then gave evidence.
At the conclusion of his evidence defence counsel raised the question of Mr. Rose in the absence of the jury. They evidently regarded Mr. Rose's evidence as supporting the appellant's case. It is not clear whether they made a formal application for the admission of a transcript of his evidence under section 68 of the Police and Criminal Evidence Act 1984. But if they did, the Judge did not rule at that stage. Instead he indicated that, in view of certain answers given by the appellant in the course of his evidence, he would be directing the jury in due course that the appellant had no defence in law.
The position was explained to the appellant. Counsel thereupon withdrew from the case. We were told that they took this course, if for no other reason, then to save any further costs to the legal aid fund.
After counsel had departed the appellant continued on his own. He renewed the application for the admission of the transcript of Mr. Rose's evidence. The application was refused on the grounds that section 68 applies only to business documents, and that a transcript of evidence is not a business document. It is conceded by the Crown that the Judge was wrong to exclude the evidence on that ground.
The trial continued without Mr. Rose's evidence. In due course the Judge summed up. He referred to the appellant's case as very strange and one which was unique in his experience. He said that in the course of his evidence the appellant had made certain admissions. The Judge then reminded the jury of certain answers which the appellant had given.
He then continued: "Members of the jury, that amounts to admissions by Gent that he had agreed with Marshall to supply amphetamines to another and he has no defence to that. He said that he thought that he was acting as a police agent. Members of the jury, if a policeman had done that he would be guilty of the charge."
He then referred to the appellant's mental state and said that it did not amount to a defence. He concluded: "In other words, coming back to what I have said before, in his own evidence Mr. Gent admitted his part in the first count and his evidence did not give rise to any defence. Cnsequently, in respect of that yor verdict in respect of Mr. Gent on the first count can only be one verdict and that is guilty."
The Judge gave similar directions in relation to the other conspiracy counts on which the appellant was convicted. Counsel for the Crown at first sight sought to uphold the convictions on the ground that this was one of those very rare cases where the Judge was entitled to direct the jury to convict. In the course of his submission however he conceded that he could not support the conviction on that ground. Instead he invited us to apply the proviso.
We shall return to the proviso in a moment. In the meantime, in fairness to the Judge, we should say why in our judgment counsel's submission was correct.
Whether or not there is still a category of rare cases where the Judge is justified in directing a conviction, it is perhaps unnecessary to decide. There is no reference to any such category in the speeches of the majority in Director of Public Prosecutions v. Stonehouse (1978) A.C.55; and the existence of such a category is inconsistent with the thrust of Lord Keith's speech at page 94.
Our own view would be that, if such a category exists at all, it must be confined to wholly exceptional cases where, for example, there has been something in the nature of a formal admission of guilt. The fact that on the evidence, including the evidence of the defendant himself, only one verdict is possible, does not justify the Judge in directing the jury to convict. If the Judge takes the view that the defendant has, in the course of his evidence, admitted his guilt, then it is always open to him to give the defendant an opportunity, in the absence of the jury, to change his plea. But if he maintains his plea, the defendant is entitled to the verdict of a jury, even though in the view of the Judge, an acquittal would be perverse.
Thus it is the function of the jury to assess the evidence and from that evidence to determine the facts. If the evidence is overwhelmingly one way, then their task will be easy, but it remains their task. The confusion seems to arise from equating overwhelming evidence with the existence of the facts necessary to found a conviction, but the two are not the same. Overwhelming evidence is likely in the nature of...
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