R v Grant

JurisdictionEngland & Wales
JudgeTHE LORD CHIEF JUSTICE
Judgment Date27 February 1995
Judgment citation (vLex)[1995] EWCA Crim J0227-10
Docket NumberNo. 94/4215/X4
CourtCourt of Appeal (Criminal Division)
Date27 February 1995

[1995] EWCA Crim J0227-10

IN THE COURT OF APPEAL CRIMINAL DIVISION

Before: The Lord Chief Justice of England (Lord Taylor of Gosforth) Mr Justice Owen and The Recorder of London (sir Lawrence Verney Qc)

No. 94/4215/X4

Regina
and
Steven Grant

MR ICAH PEART appeared on behalf of THE APPELLANT

MR BARTHOLOMEW O'TOOLE appeared on behalf THE CROWN

1

Monday 27 February 1995

THE LORD CHIEF JUSTICE
2

THE LORD CHIEF JUSTICEOn 5 July 1994, in the Crown Court at Harrow, the appellant pleaded guilty to count 2 on an indictment, a charge of possessing a controlled drug of Class A (crack cocaine). That plea was not accepted by the prosecution. There was a trial. On 6 July 1994 he was convicted on count 1 of the indictment which charged the more serious offence of possessing a Class A controlled drug with intent to supply. Sentence was adjourned for the preparation of reports. On 3 August the appellant was sentenced to five years imprisonment on count 1. There was a confiscation order in the sum of £912.50. He now appeals against conviction by leave of the single judge who also referred the application for leave to appeal against sentence to the full court.

3

On 17 March 1994 police officers in a car in the Harrow Road, Harlesden, saw the appellant and a witness who was called for the defence, Gary Harriett. They were scuffling in the street. When the police approached the two men, the appellant pushed something inside his trouser and behaved in a fidgety fashion. When searched he had £912.50 in his pocket. He was arrested. At the police station he was seen to push something up his boxer shorts and to put his hands over his mouth. He was told to spit out whatever he had in his mouth and he produced 4.86 grammes of crack cocaine, said to be equal to 25 doses. He said that he had bought that for personal use from a man whom he called Pebbles. The officers noticed that four wraps of crack cocaine, containing five lumps, a total of 23.4 grammes, were on the floor. He said that Pebbles had dropped it in the street and he had picked it up and, in effect, stolen it. There was thus a total of 28.26 grammes of crack cocaine found on the appellant after his arrest.

4

The only issue before the jury concerned intent to supply. The appellant gave evidence on his own behalf. He said that he had smoked cocaine for two or three years. He intended to buy a second-hand car which he had seen advertised on the day of his arrest and the £912.50 which he had in his possession consisted of £300 from his mother and £600 which he had saved. He claimed that he had a test drive of the car he had in mind, and on advice he decided not to buy the car after all. Having made that decision, he then decided to buy £250 worth of cocaine from Pebbles as he happened to have the money on him. He said that he had Pebbles' telephone number on a piece of paper and was therefore able to telephone the man and get him to bring the supply of cocaine. Although only a short period of time had elapsed between the phone call and the arrest, the piece of paper on which the appellant said he had the relevant telephone number was not to be found. Pebbles arrived in the Harrow Road by car and he bought the smaller quantity of the drug which was found on him on his arrest.

5

He said that Pebbles had dropped the larger amount when answering his mobile telephone. He had not realised he had dropped the amount and had left the scene without picking it up. The appellant had taken possession of it and intended to keep it for his own use. At that stage his friend, Gary came up and wanted to see what he had picked up from the road. When he declined to show Gary there was the scuffle observed by the police officers.

6

A man named Verney (nicknamed "Beefy") gave evidence for the defence that the appellant had been to his garage on a day in February or March. However, he rather let down the appellant by saying that the appellant had not test driven the car and that he had agreed to buy it and return when it was ready. That was in contradiction to what the appellant had said about the vehicle. Another man called Martin, whom the appellant said was at the garage at the relevant time, was (according to Mr Verney) not there that day.

7

The man Harriett, with whom the appellant had been scuffling, was called for the defence. He confirmed that he had seen the appellant talking to a man from across the road. He had seen that man drop something. But, according to Mr Harriett, the man had dropped it before his mobile telephone rang, not (as the appellant said) whilst the man was on the mobile telephone.

8

There was a submission on behalf of the defence to the trial judge that the evidence of the finding of the £912-odd should not be admitted in the trial. The submission was based upon the judgment of this court in R v Batt [1994] Crim LR 592. We have a transcript of that and of a number of other cases which it is necessary to refer to. The first of the cases in point of time was R v Wright (CA 6.5.93), in which the appellant had left a car at Heathrow Airport. The car was searched and packets of cocaine were found. Wright denied he had anything to do with that. He had hired the car three days earlier. His flat was searched. £16,000 in cash, together with a gold necklace, was found. The issue in Wright was whether the evidence of the finding of the £16,000 in the flat should have been admitted before the jury. Beldam LJ, who gave the judgment of the court, said at page 6 of the transcript:

"Substantial capital in hard cash is essential for someone who is minded to deal in these drugs, and so it comes about that those who carry on the trade are frequently found to have in their possession large amounts of cash, either because they have received it for sales already made, or because they need it to take advantage of any opportunity which may arise for the purchase of fresh supplies of the drug. Sometimes quantities of cash are concealed on the person; sometimes they are concealed in the home where it is thought that it will be safe from discovery.

The question for decision is whether the finding of such a large amount of cash is a fact which, if proved, makes it more probable that a person suspected of dealing in narcotic drugs, and who is found to be in possession of them, is in possession of them for the purpose of supplying them….. no doubt that the finding of a large quantity of cash is capable of being relevant to an issue the jury had to consider in this case, and we reject the submission that this evidence was inadmissible because it was irrelevant."

9

There then followed R v Batt (CA 25.3.94), upon which reliance is placed. That was again a charge of possession with intent to supply. The police found £150 in notes in an ornamental kettle at the appellant's house. The question was whether the evidence of the finding of the money should have been admitted before the jury. At page 3 of the transcript Saville LJ, in giving the judgment of the court, said:

"For the Crown, Mr Virgo submitted that it is in fact a hallmark of intent to supply, that the supplier has not only of course cannabis itself but such things as scales and the like and money, by way of a float or capital in order to aid and assist this trade.

We disagree with that submission in the context of this case. This case was not unlike, for example, the case of R v Wright…. a drug trading case….

It is indeed a hallmark, as Mr Virgo put it, but it is a hallmark not of intent to supply the cannabis found, but the hallmark of a propensity to supply generally, or a hallmark of the fact that there has been past supply, or that the money will be used in the future to obtain cannabis for future supply."

10

On the facts of that case the court ruled that the evidence of the £150 found in the house should not have been admitted.

11

This issue was also considered in R v Morris (CA 14.10.94), in which reference was again made to R v Batt. At page 8 of the transcript Morland J, giving the judgment of the court, said:

"…. we were told that, in some quarters, the judgment [in Batt] has been understood as laying down a general proposition that evidence of possession of money is never admissible when the charge is possession of a drug with intent to supply. We do not so read the judgment, particularly bearing in mind that the court in Batt held to have been rightly admitted the evidence of...

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