Case No. 96/5182/Z2
Neutral Citation Number: [1996] EWCA Crim 1256
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2

Date: Thursday 31st October 1996

B E F O R E:

LORD JUSTICE HENRY

MR JUSTICE SEDLEY

and

RECORDER OF LIVERPOOL

(Acting as a Judge of the CACD)

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R E G I N A

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SEAN MICHAEL RYAN

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MR J JOHNSTONE appeared on behalf of the APPELLANT
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JUDGMENT

LORD JUSTICE HENRY:  The Recorder of Liverpool will give the judgment of the court.

THE RECORDER OF LIVERPOOL:  Sean Ryan, was given leave to appeal against conviction and now does so.  On 26th July 1996, he appeared at Snaresbrook Crown Court before Mr Recorder Kyte Q.C., he was convicted on one count of an indictment having pleaded guilty to possession of cannabis (27.7 grams of cannabis resin and 9.75 grams of herbal cannabis).  He was convicted by the jury of possessing the same cannabis with intent to supply to another.  
		The facts are very simple.  Two police officers saw the appellant outside a public house and one of them gave evidence that he saw another man come to the public house and that he then saw what he believed to be a drug transaction take place.  He says he saw the appellant's hand touch the hand of the other person who had come out.  He then saw the other person go back in and the appellant go into the doorway.  The other man came out again and there was another similar transaction.  The police moved in.  It turned out, when they searched the appellant, that he had some cannabis on him and subsequently he produced from his waistband some more cannabis wrapped in envelopes which were contained in another envelope.  In the circumstances the appellant had no alternative but to plead guilty to possession of the cannabis and that is what he did.
		Unfortunately, when the learned Recorder came to sum this case up he dealt with two matters, in our view, unsatisfactorily.  The first matter was this.  The judge said:
		"But, members of the jury, one of the points rightly and properly made by the defence is that when he was eventually arrested this defendant had no money on him.  But the officer is not saying that he sees money change hands, and if you are sure that these were transactions involving drugs, it may be, may it not I do not know, a matter for you, that this man in this thirties, whoever he was, was acting, as it were, as a runner for the person who had the cannabis, walking up and down on the forecourt of the public house.  And if that were right, it does not of course therefore necessarily follow that you could expect the person with the cannabis also to have the money.  That is a question, of course, of argument and that is how the Crown, I dare say, would put it.  It is a matter for you to decide."
		
		Whether the Crown would have put it that way or not, the fact is they did not do so, and this "runner" was never mentioned at all in the course of the case, as Miss Palmer, for the Crown, now concedes.  What happened was this: the Recorder introduced into his summing-up, as a possible explanation for the absence of money from the appellant's person, an entirely new factor: a runner.  Entirely new because it had never been canvassed in the course of the trial.
		Mr Johnstone for the appellant relies on two cases, R. v. Cristini  (1987) Crim.L.R. 504 and R. v. White (1987) Crim.L.R. 505.  The case of White is very close to this one.  Again, in that case the judge invented the possibility of a person whose existence had never been mentioned before.  In his summing-up the judge for the first time, and without consulting counsel, referred to the possibility that there may have been three men at the scene of a theft, one remaining in a vehicle as the driver.  There is no need to go into the facts in any detail.  Suffice it to say that this third man had never been mentioned before.    We think that the "runner" mentioned by the learned Recorder in this case is in exactly the same category as the third man in White.  If a judge mentions a new character that has never been mentioned before in the course of the case and puts that forward as a possibility for the jury to consider ("it is a matter for you to decide", he said) the likely consequence is that the conviction has to be quashed.
		That is not the only point put forward on behalf of the appellant.  A number of points in which there is no merit were abandoned; but one other point does have merit.  It was in issue in this case what the police officers saw.  They say they saw what seemed to them to be a drugs transaction, the hand of one man moving to the hand of the other, it then turning out that the first man had drugs in his possession.  That certainly looked like the passing of drugs from one to the other.  The finding of the drugs, subsequently, in the appellant's possession does not of itself necessarily mean that he was supplying drugs.  It certainly does not mean that he was supplying drugs to that particular person who came to the pub that night.  That was a very important issue.  The credibility of the police officer who gave evidence was very important in the case.  There he was watching this incident when he approached the appellant and searches him.  He has power to search for drugs under the Misuse of Drugs Act.  He has power to search for other articles, in particular, the power to search for offensive weapons under section 1 of the Police and Criminal Evidence Act 1984.   
		What the appellant was to say when he went into the witness-box was that the police, when they approached him, did not say were looking for drugs and wanted to search him for drugs, but they were looking for an offensive weapon and wanted to search him for that.
		When Mr Johnstone, who appears before us today and was representing the appellant at the trial, came to cross-examine the officer, he put it to the officer, as he was bound to do in view of the instructions he had been given, that the search was being carried out under section 1 of the Police and Criminal Evidence Act 1984.  The officer denied that, and said that he was searching under the Misuse of Drugs Act.  When, however, the officer was shown his statement he had to admit that he had put in his statement that he was searching under the Police and Criminal Evidence Act.  There it is, in the statement.
		The Judge was a little impatient with Mr Johnstone at that stage in the cross-examination because the Judge could not see the point of whether the search was under the Police and Criminal Evidence Act, or whether the search was under the Misuse of Drugs Act; but nevertheless the point was made and the Judge should have taken it on board at that stage.  He should certainly have taken it on board later on when the appellant gave evidence, and gave evidence that the police officers had told him that they were searching for an offensive weapon.   Nevertheless, what he actually said in his summing-up to the jury was:
		"Now, I do not know what you think about this point about the PACE search, or whether it is section 23 of the Drugs Act search, the fact is that the officer searched him for drugs."

		That, of course, totally misses the point, and clearly the learned Recorder had failed to grasp what counsel was putting, and the importance of  the distinction between these two statutes, and the manner in which it affected the credibility of the police officers.  If the officer was searching the appellant under section 1 of the Police and Criminal Evidence Act, which does not entitle the police to search for drugs, he was entitled to search for offensive weapons.  There is at least an inference that the appellant is right when he says that the officers said they were stopping him on suspicion of having an offensive weapon.  If that is what they said maybe they never saw anything which could have been a drugs transaction
 		For those two reasons we consider this summing-up is seriously flawed, and the conviction cannot stand and the appeal against conviction is allowed.

LORD JUSTICE HENRY:  Under the Criminal Appeal Act, 1968, this court has power where an appeal has been allowed in respect of part of the indictment, to pass such sentence in substitution for any sentence passed at the trial on the remainder of the indictment as it thinks proper.  The authorities summarised in paragraph 7120 of the present edition of Archbold indicate that the relevant section would be held to apply where a separate penalty is passed.  However, having regard to the fact that this successful appellant has served the bulk of his sentence in regard of Count 1 where the appeal has been allowed, it would clearly be quite wrong to impose any penalty in relation to the plea on Count 2.  Therefore, we will make an absolute discharge in relation to that.
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