No: 200703878 B4 
Neutral Citation Number: [2007] EWCA Crim 3228
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Thursday, 20 December 2007
 
B e f o r e:

LORD JUSTICE LONGMORE 

MR JUSTICE FIELD 
 
MR JUSTICE BLAKE 
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R E G I N A 

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M
 
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Mr RMT Price appeared on behalf of the Appellant
Mr P Gair appeared on behalf of the Crown
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J U D G M E N T 

1.	LORD JUSTICE LONGMORE:  Section 28(3) of the Misuse of Drugs Act 1971 provides (inter alia) that, if a person is charged with possession of controlled drugs with intent to supply and is found to be in possession (with the requisite intent) of a substance which is in fact a controlled drug, he is entitled to be acquitted if he proves that he neither believed nor suspected nor had reason to suspect that the substance was a controlled drug.  
2.	In R v Lambert [2002] 2 AC 545 the House of Lords considered whether sub‑section (3) was incompatible with the European Convention on Human Rights insofar as it imposed the burden of proving absence of belief and reasonable suspicion on the defendant in apparent contravention of the Article 6 provision that everyone is to be presumed innocent until proved guilty.  The House of Lords resolved that question by deciding that the word "prove" in the sub‑section was to read as an evidential burden of proof rather than a legal burden of proof.  In other words the defendant had to put forward sufficient evidence to satisfy the court that he or she neither believed nor reasonably suspected that the substance was a controlled drug, but once there was sufficient evidence of that, the burden of proving that he or she did, in fact, believe or suspect that the substance was a controlled drug remained with the Crown.  
3.	Not surprisingly this difference between the evidential and legal standard of proof is one that juries find elusive if not baffling.  So counsel sometimes ask the judge to decide in the defendant's favour that the evidential burden has been satisfied so that the judge can then just leave to the jury the question whether the Crown had satisfied them that the defendant did, in fact, believe or reasonably suspect that the relevant substance was a controlled drug.  This is what defence counsel did in the present case, and he thought that HHJ McKittrick had agreed that the evidential burden was satisfied so that the only question for the jury on this aspect of the case was whether the Crown had proved that the defendant did not believe or reasonably suspect that the substance in her possession was not a controlled drug, or in other words that the defendant knew or suspected that she had a controlled drug in her possession.  Of course, if a judge is not satisfied that the evidential burden has been discharged, he would have to leave that matter to the jury with a careful direction as to the difference between the legal and evidential burden of proof, as well as the differing standard of proof that has to be met in either case.  
4.	The facts of this case are these.  The appellant, M, is a single woman of 21 years and of previous good character.  On 15 October 2006 she visited her boyfriend, M2, who was a serving prisoner at HMP Highpoint.  At the time M2 was serving a sentence of seven years' imprisonment, having been convicted of the offence of conspiracy to supply class A drugs.  Before the visit took place, a dog handler, Mr Eddie Cragg, noticed that his trained dog showed an interest in the appellant, but did not give a full indication that the appellant was likely to be in possession of drugs.  The appellant was allowed to continue through the prison, and the visit took place with M2.  The visit lasted approximately an hour and a half.  No drugs were supplied.  When the visit had finished, the appellant walked to a waiting area where she was approached by prison officers who asked her to accompany them to the visit search room.  Officer Adams pulled up the appellant's right sleeve, whereupon seven small cling film packages fell to the floor.  On subsequent analysis, it was found that the packages continued a total of 5.93 grams of diamorphine.  The content of the packages was found to have a purity of approximately 47 per cent heroin.  The applicant was arrested and made no comment in interview.  
5.	The appellant gave evidence that she had received a telephone call from M2 while she was travelling to the prison.  She was told by M2 that a package had been left in the female toilets of the Visitor Centre and that he wanted her to convey them into the prison.  She said she was told by M2 that the package contained muscle building steroids. 
6.	She stated that initially she had refused M2's request, but was put under pressure in two ways to collect the items.  First, M2 stated that he had become addicted to the steroids and that he would kill himself if he did not receive them.  A little later, M2 made a veiled threat to the appellant.  The threat was made against a background of violence by M2 against the appellant, and it is fair to say such complaints as the appellant had made to the police were well documented in police records.  Hence, two limbs of a defence of duress were raised: first, duress of circumstances, ie a fear on the part of the appellant that if she did not do as her boyfriend requested, the latter would kill himself; secondly, if she did not do as requested, she herself might be severely attacked by associates of M2 who were at large.  
7.	Quite apart from any defence of duress, the appellant stated that, although she collected the items from the hiding place, she had no intention of actually supplying them to M2.  During the visit, M2 asked where the items were and the appellant told him that she looked, but the items "were not there".  
8.	The appellant also had another defence, namely that she had no idea that the packages contained class A drugs, as she believed them to contain steroids.  It is this third (or perhaps logically first) defence that has given rise to this appeal.  As we have said, counsel for the defence thought he had secured an indication that the case would be summed‑up without leaving to the jury the question whether the defendant had discharged the evidential burden on her, to which we have referred.  
9.	In his summing‑up, however, the judge explained to the jury that the defendant was not in legal possession if the contents of the packages were different from what she believed they were.  He then said this:  
"Of course, she says does she not, that she thought they were steroids.  If you find that she was in the possession of these drugs and the drugs contained heroin, the defendant on her evidence must prove, to the standard so it is more likely or more probable than not, that she was a bailee, or if you like an agent who had no right to open the package and no reason to suspect that the contents were illicit or drugs, or that she had no knowledge of or had made a genuine mistake as to the nature of the contents, and had received the package innocently and had no opportunity to acquaint herself with its actual contents.  
Now, she must show that on the evidence to you, but it does not detract from what I said a few moments ago.  At all times, the Crown must prove her guilt.  It is not for Miss M to prove her innocence, and she having raised her apparent lack of knowledge, then the Crown will have to prove it from evidence that has been deployed in this case against her."  
10.	Counsel submits that in that passage the judge did what he had indicated he would not do, and thus he undermined the basis on which counsel had made his closing speech, and secondly, that if the matter was going to be left to the jury at all, it was left in too muddled a way.  As to the first argument, counsel for the Crown before us was not able to agree that the judge had accepted he would not leave the evidential burden to the jury, but accepted that, since no transcript of the discussion which counsel for the appellant was relying on had been ordered, he really had to accept that such an agreement with the judge was reached.  That may of course be unfair to the judge.  We have had no opportunity of considering the terms of the discussion.  We observe only that it is very surprising that counsel can say in this court that the judge had agreed to do something that he then in fact did not do.  So we do not decide the appeal on that ground, despite our concerns as to what had happened, because we do accept Mr Price for the appellant's second submission.  
11.	If a judge decides to leave to a jury the question whether a defendant has discharged the evidential burden of raising sufficient persuasive evidence that she did not know or suspect that the substance of which she had possession was a controlled drug, as well as the question of whether the Crown has discharged the legal burden of proving that the defendant did in fact know or had reason to suspect that the substance was a controlled drug, a much more careful direction is needed than that supplied by the judge.  At a minimum, such direction must explain the difference between an evidential burden and a legal burden of proof in terms that a jury can understand.  It must then also explain that the evidential burden can be discharged on a balance of probabilities, but the legal burden on the Crown has to be discharged to a criminal burden of making the jury sure.  Without some such careful explanation, a direction that the burden on the defendant "does not detract from the fact that the Crown must prove her guilt" is, with respect to HHJ McKittrick, not readily understandable.  
12.	The difficulty of giving a comprehensible direction, which this court readily recognises, only serves to underline the good sense of trying to get an agreement (if possible) that the evidential burden has been discharged so that only the Crown's burden need be left to the jury.  In these circumstances we feel we have no option but to quash this conviction.  
13.	Mr Gair, for the Crown, relied on the case of McNamara [1988] 87 Crim App R 246, but that only goes to the question of possession.  Mr Gair's submissions in relation to that case only go to the question of possession in fact, not the defence of absence of belief or reasonable suspicion.  
14.	Mr Price has referred us to the cases of Forsythe [2001] EWCA Crim 2926, Lang and Deadman [2002] EWCA Crim 298 and Carrera [2002] EWCA Crim 2527.  It is not necessary for us to refer to those authorities, save to say that we consider that our decision is consistent with them.  In all the circumstances, this conviction will be quashed.  
15.	Are there any applications?
16.	MR GAIR:  My Lord, I imagine the court will direct a retrial.  As regards the issue of bail, the appellant was on bail throughout until the date of sentence, 2 July.  No pre‑sentence report was ordered.  She was sentenced without such a report to 30 months.
17.	LORD JUSTICE LONGMORE:  Yes, she was sentenced to a term of 30 months, and she has been in prison presumably since the date of conviction, has she? 
18.	MR GAIR:  That is correct, 2 July.
19.	LORD JUSTICE LONGMORE:  Yes, that is five months.  What do you have to say about that, Mr Price? 
20.	MR PRICE:  Yes, five and a half months.  She has served virtually six months of a sentence which would otherwise be, in terms of service of the sentence and before parole, of 15 months.  It is entirely a matter for the court, but I would respectfully submit that this is a matter where she has now been punished.  It is not an insubstantial term for a young woman of previous good character, and it is not an offence that is likely that she will commit again.  If it was an offence before the court where there was a real danger that the defendant would regard clemency by the court as an invitation to go out and commit further offences, such as a burglar or a drug dealer or something of that kind ‑‑ but this was really a one‑off single instance of her seeking to smuggle something into her boyfriend for which she has already been sorely punished.  The court could, in taking a lenient view of it, be perhaps assured of the fact that it is extremely unlikely.  There is no evidence historically that this young lady would offend again.
21.	LORD JUSTICE LONGMORE:  It is just that taking drugs into prison is such a serious offence.
22.	MR PRICE:  I accept that.
23.	LORD JUSTICE LONGMORE:  Very well, we will retire.  
 (Short Adjournment)
24.	LORD JUSTICE LONGMORE:  We will order a retrial in this case because, as we have indicated, it is a serious offence.  So we will allow the appeal.  We will quash the conviction.  The count on which the appellant is to be retried is the original count 1 of the indictment.  I hope that is right, Mr Price.
25.	MR PRICE:  Yes.  There was an alternative one of possession simpliciter on the original indictment.
26.	LORD JUSTICE LONGMORE:  Perhaps that ought to be there also then. 
27.	MR PRICE:  Yes, perhaps as it was there before, yes.
28.	LORD JUSTICE LONGMORE:  So we will order a retrial on both counts of the indictment.  We will order that a fresh indictment be preferred.  We will direct that the appellant be rearraigned on that fresh indictment within two months, at such court as a presiding judge of the south eastern circuit will direct.  We will admit the appellant to bail on similar terms as she was on bail before her trial, and we will make a representation order for the retrial.
29.	MR PRICE:  I am grateful, your Lordship.  Your Lordship, the position is this: there is an address that has been checked through her trial solicitors in the last two days.  The original address that she had at the time was Housing Association premises and she is able to return to that, namely Flat 3, 45 Earls Court Square in South London.  I have written this down for the clerk of the court.  The conditions, my Lord, were twofold.  One is to surrender her passport, and the second was not to apply for travel documentation.  Your Lordship, the position is that I am assuming that the passport is in the possession of the police, but bearing in mind the time of the year, I would not want there to be a particular problem if in fact for some reason it had been returned to her.  The court may consider that perhaps a condition of residence in all the circumstances, bearing in mind that she has served quite a substantial part of the original sentence, would be sufficient in this case.
30.	LORD JUSTICE LONGMORE:  Well, if the original condition was that she should surrender her passport, I think she should re‑surrender it if she has now got it, but it is not very likely she has got it, is it? 
31.	MR PRICE:  It is very unlikely she has got it.  I am just a little anxious that the prison hearing the terms of bail may not be able to resolve that this side of question ‑‑ the issue as to whether she has the passport or the police have the passport.  I am just a little anxious about that.  If the prosecution could undertake, through the officer in the case or an officer, to inform the prison that they have the passport, that might make consideration ‑‑ 
32.	LORD JUSTICE LONGMORE:  If they have the passport, they will tell the prison that they do.
33.	MR PRICE:  Exactly.  If the Crown are prepared to look into that so that that can be resolved quickly, then ‑‑ 
34.	LORD JUSTICE LONGMORE:  Can you undertake to inform the Prison Service what the situation with her passport is, Mr Gair? 
35.	MR GAIR:  That should not be a difficulty.  I would respectfully suggest simply that there be a condition precedent, if you like, to the grant of bail that the passport be surrendered to the police prior to the grant of bail, and the Crown will undertake to contact the police today, and the police can then notify the Prison Service as to whether they do have possession of her passport.
36.	LORD JUSTICE LONGMORE:  Yes.  She is not very likely to have it with her in prison, is she? 
37.	MR GAIR:  I think it is highly unlikely, and it should also be remembered that immediately after trial she was sent immediately into custody.  She had no time to make arrangements for anything else. 
38.	LORD JUSTICE LONGMORE:  Right, we will record your undertaking to investigate the position about her passport, and let the prison authorities know within 24 hours.
39.	MR PRICE:  I am grateful, your Lordship.  I wonder whether a transcript of the judgment of the court today could be made available.  I submit it would be of great use to a trial judge in relation to the retrial.  This is an area which can create confusion in the minds of various persons, and I am wondering whether today's judgment would be of assistance to the judge who presides over the retrial.
40.	LORD JUSTICE LONGMORE:  Yes.  What do you want us to do about it? 
41.	MR PRICE:  Make an order that a transcript be provided to the Crown, to the defence and to the Ipswich Crown Court.
42.	LORD JUSTICE LONGMORE:  Very well.  We will make that order.  We will order that a transcript of the judgment be provided both to the defence and the Crown and Ipswich Crown Court.  Was it Ipswich?  I said something about the western circuit, did I not?  I think that was the last case.  
43.	MR GAIR:  It was Ipswich. 
44.	LORD JUSTICE LONGMORE:  I mean of course a presiding judge of the south eastern circuit, and we will direct that a transcript be sent to the Ipswich Crown Court.