R v Hodges (Kevin John)
| Jurisdiction | England & Wales |
| Judgment Date | 22 January 2003 |
| Neutral Citation | [2003] EWCA Crim 290 |
| Docket Number | No: 200201260/W3-200201281 |
| Court | Court of Appeal (Criminal Division) |
| Date | 22 January 2003 |
[2003] EWCA Crim 290
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Lord Justice Rose
(Vice President of the Court of Appeal, Criminal Division)
Mr Justice Aikens
Mr Justice Royce
No: 200201260/W3-200201281
MR R GREY appeared on behalf of the APPELLANT HODGES
MISS L WILDING appeared on behalf of the APPELLANT WALKER
MR S FOSTER appeared on behalf of the CROWN
THE VICE PRESIDENT: On 31st January 2002, after a trial which, astonishingly, lasted 18 days, at Portsmouth Crown Court, these appellants were convicted of conspiracy to supply heroin to others, on count 1 in the indictment. Walker also pleaded guilty to possession of cannabis and to possession of heroin, on counts 2 and 3. On 1st March 2002, they were sentenced by Mr Recorder Mather, by whom the trial had been conducted, in the case of Hodges, to 5 years and in the case of Walker to 6 years' imprisonment on count 1. Walker was also sentenced on count 2 to 1 weeks' imprisonment and on count 3, to 2 months' imprisonment concurrently. They now appeal against conviction by leave of the Single Judge.
The appellants were arrested together in Portsmouth on 6th September 2000, after observations had been kept by the police on Walker's address in Outram Road, Southsea, on at least nine days between the middle of August and 6th September. The appellants had been observed outside Walker's house and on nearby streets. The effect of the observation evidence was that, either separately or, sometimes, together, the appellants had had numerous short meetings with a variety of people. Those meetings involved hand contact between the appellants and others which was not, according to the police officers, either in the form of handshakes or, as was suggested, in the form of high, medium or low fives. There was no evidence from the officers that they actually saw drugs being passed.
When Walker was arrested, he had £350 on him and a bag containing heroin. He claimed that there were 10 grammes inside. In fact there were 14 grammes, that is half an ounce. He said that it was for his personal use.
Hodges had £80 on him. When Walker's house was searched, there was found a set of scales, with traces of heroin on them, some pieces of plastic bag, metal foil and about one cigarette's worth of cannabis.
At a first trial the judge, sadly, suddenly died. So the appellants were convicted on a second trial.
The prosecution case against the appellants was based on the manual contacts to which we have referred, the drugs and money found on Walker, expert evidence from Detective Constable Stevens, to which we shall return and, so far as Hodge was concerned, statements which he had made in the course of interview.
The defence of both appellants was that they were not dealers. The manual contacts were merely handshakes or gestures of friendship to acquaintances. It was said on their behalf that the drugs found on Walker were for the personal use of both Walker and Hughes, over the coming week or so. It was said that the expert evidence of Detective Constable Stevens was without foundation, and evidence was given by the defendants which, in part at least, contradicted what Detective Constable Stevens said.
On the tenth day of the trial, during the evidence from the witness-box of Hodge, one of the members of the jury apparently fell asleep. In consequence, the following day, she was discharged from the jury. There was a report of that discharge in a local evening newspaper and, on the day after that, there were further reports of that in national newspapers. By reason of these events, applications were made by the defence, first, that the whole of the jury should be discharged and not just the one juror. Next, in the light of the local newspapers report, that the jury should be discharged. And, finally, following the items in the national newspapers that the whole jury should be discharged. The learned Recorder, as is implicit in the history already recounted, rejected those submissions.
There were two main issues of fact for the jury. First: were drugs being transferred during the manual contacts observed by the police? Secondly: were the drugs found on Walker merely for his and Hodges' personal use, or were they intended for commercial distribution?
This appeal raises two grounds. First, on behalf of Hodges, Mr Grey, in submissions adopted by Miss Wilding on behalf of Walker, submits that the evidence of Detective Constable Stevens was wrongly admitted by the Recorder, in so far as it dealt with three different matters: first, as to what was the usual method of supplying heroin, namely, in a £20 bag; secondly, as to the purchase price of heroin in Portsmouth at the time; and, thirdly, that 14 grammes was more than would have been for personal use alone.
In advancing those submissions Mr Grey, rightly, drew attention to certain authorities. In R v Bryan, (unreported, Court of Appeal (Criminal Division) transcript of 8th November 1984) evidence had been called, in the course of a trial of the appellant for possessing cannabis with intent to supply, that the quantity of cannabis found in his possession was too much for personal use and, in the course of this court's judgment, as appears from paragraph 3E of the transcript, this was said:
"The point taken is that one of the police officers, as indicated in the summing-up at page 15F, had given some evidence about the quantity of cannabis and the cost of a deal on the street. Apparently he was a man who had some two years' experience in the drugs squad and was described by the learned Recorder thus: 'In the course of that time he has gained considerable knowledge of the street drug trade. He said that the usual quantity of cannabis pushed in a street deal (for one deal) is about one to two grams, and this costs about £5 for a deal.' It is said that that evidence was hearsay and that, even if it was as to fact, the police officer was not enough of an expert to give that evidence. Indeed it was not a field of expertise which was recognised and therefore that evidence should not have been admitted and that it was unfair because it was not rebuttable. The view of this court is that police officers with their experience of dealing with these problems, being on the streets and with their knowledge and meeting with those having a drug problem and those pushing the drugs, have a very wide experience and can give evidence of fact of what takes place on many occasions on the streets."
The court went on to hold that the evidence had been properly admitted.
Mr Grey accepts that, following that decision, for very many years, it has been common in Crown Courts for evidence to be given by police officers, in relation to, in particular, the street value of elicit drugs. But, he submits, the position is now changed by reason of a decision of a differently constituted division of this Court in ( R v Edwards unreported, Neutral Citation 2001 EWCA Crim 2185, Court of Appeal transcript dated 19th October 2001). That was a case in which the Court upheld the trial Recorder's decision to exclude evidence proffered on behalf of the prosecution and the defence, when the allegation related to the possession of Ecstasy with intent to supply. It was said, in the course of the judgment, that the material on which the two proffered witnesses relied was "classic hearsay". Mr Grey submits that, notwithstanding that Bryan was not referred to in Edwards, Edwards should have been followed by the Recorder at trial in the present case and should, indeed, be followed by this court. Therefore, he submits, the evidence of Detective Constable Stevens ought not to have been admitted in the present case.
In support of that submission, he relied upon a ruling given by His Honour Judge Burford QC, in R v Stebbing at Southampton Crown Court (transcript of 17th September 2002). In the course of that ruling, the learned judge concluded that he should follow Edwards, it being a more recent decision than Bryan, and he quoted from a judgment of Lord Justice Kerr in Abadom 76 Cr App R 48. It is pertinent to rehearse the citation starting at page 53 in Kerr LJ's judgment, which is set out from page 9C of the transcript of Judge Burford's ruling:
"It seems to us that the process of taking account of information stemming from the work of others in the same field is an essential ingredient of the nature of expert evidence. So far as the authorities are concerned, the position can be summarised as follows. First, where an expert relies on the existence or non-existence of some fact which is basic to the question on which he is asked to express his opinion, that fact must be proved by admissible evidence. Secondly, where the existence or non-existence of some fact is in issue, a report made by an expert who is not called by a witness is not admissible as evidence of that fact merely by the production of the report, even though it was made by an expert. These, however, are, in our judgment, the limits of the hearsay rule in relation to evidence of opinion given by experts, both in principle and on the authorities. In other respects their evidence is not subject to the rule against hearsay in the same way as that of witnesses of fact. Once the primary facts on which their opinion is based have been proved by admissible evidence, they are entitled to draw on the work of others as part of the process of arriving at their conclusion…… It does not seem to us in relation to the reliability...
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