Neutral Citation Number: [2009] EWCA Crim 1944
Case No: 200903518 D4 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Thursday, 24 September 2009
 
B e f o r e:

LORD JUSTICE DYSON 
 
MR JUSTICE DAVIS 
 
MR JUSTICE LLOYD‑JONES
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R E G I N A 

v 

ADIL REHMAN
 
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MR T CLARK appeared on behalf of the Appellant 
MISS K TOMPKINS appeared on behalf of the Crown 
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J U D G M E N T 

1.	MR JUSTICE DAVIS:  The appellant is a man now aged 20.  On 1 July 2009, after a trial at the Crown court at Peterborough before HHJ Moloney QC and a jury, this being a retrial, the appellant was convicted of possessing explosives contrary to section 4 of the Explosive Substances Act 1883.  The verdict was a majority verdict.  On the same date he was sentenced to 2 years 8 months' imprisonment.  
2.	He appeals against his conviction, and also has lodged an appeal against sentence, by leave of the single judge.  
3.	At the previous trial, on 29 January 2009, a co‑accused (David Crosby) was convicted of possessing explosives contrary to section 4 of the same Act, and on 26 February 2009 he had been sentenced to 2 years' imprisonment.  The retrial was occasioned by virtue of the fact that at the first trial the jury had been unable to agree on a verdict in the case of this appellant.  
4.	The background facts, given the relatively short nature of this appeal, can be shortly stated for present purposes and are these.  At approximately 9 o clock in the evening of 15 July 2008, the appellant met David Crosby in the square at Wolverton, Milton Keynes.  The appellant sold some cannabis to Crosby.  Crosby then gave the appellant a canister which in fact contained a powder which was agreed to be an explosive for the purposes of the legislation.  The exchange was captured by CCTV and the appellant then departed.  Subsequently, the car in which he was travelling was stopped by police.  He was arrested for possession of cannabis, a small quantity of which was in the car, and he was offered a caution.  He refused the caution and was taken to the police station.  At a later stage the canister was seized.  
5.	The prosecution case, in essence, was that the appellant intended to use the explosive to cause personal injury or fear, or to damage property.  The Crown relied on evidence which showed that for over a year a feud had been going on between the appellant's family and other members of the Asian community in the area where he lived.  In May 2007, the appellant's cousin had been murdered and three local men had been convicted of the murder.  The appellant was clearly involved in the feud, as the Crown's case was.  The Crown also relied on the fact that various weapons were in due course found in various parts of the address where the appellant lived.  
6.	The defence case, in essence, was that Crosby had told the appellant that the canister was a firework and he did not intend to use it to cause an explosion.  He denied arranging in advance to take possession of the canister.  The defence relied, amongst other things, on the fact that the appellant carried a lighted cigarette at the time of his meeting Crosby, tending to suggest that at that time he did not know that he had an explosive powder.  After the appellant handed over the drugs to Crosby, he turned away and made as if to leave, and it was Crosby who called him back and gave him the canister.  He said that if he had known about the explosive, or had some unlawful purpose in possessing it, why then would he have refused the police caution which led to his being taken to the station?  As to the feud, the defence relied on the fact that in June 2008, when threatened by some men, one of whom had been a suspect in the murder trial, the appellant had gone to the police instead of taking matters into his own hands.  As to the weapons found at the address where he lived, he said, in effect, that that was nothing to do with him and they belonged to others.  
7.	At an early stage of the trial, the judge granted an application by the prosecution, made pursuant to section 74 of the Police and Criminal Evidence Act 1984, to adduce evidence of the conviction of Crosby.  The application was opposed by the defence, first on the basis that the evidence was not admissible because it was not relevant to any issue, and secondly on the basis that, even if it was admissible, it should be excluded under section 78 of PACE.  The judge rejected both such arguments in reaching the decision that he did.  The trial thereafter proceeded and, as we have indicated, the appellant was in due course convicted.
8.	The sole ground of this appeal, and it is the submission of Mr Clark, is that the judge was wrong to admit the evidence of the previous conviction of David Crosby, the co‑accused at the first trial.  Mr Clark submits that the only proper course for the judge to have taken was to exclude such evidence by exercising his powers under section 78 of PACE.  
9.	To assess that submission it is vitally important to assess the purpose for which the previous conviction of Crosby was to be adduced.  The prosecution had, as we were told, at the request of the defence, read out as agreed evidence a statement of the brother of David Crosby, called Mark Crosby, whose name we are told in fact appeared on the back of the indictment.  The brother, Mark, had, it would appear ‑‑ in effect acting as an amateur scientist ‑‑ manufactured the powder at his home as some form of pyrotechnic powder or as some kind of energy device.  At David Crosby's request, he gave it to David Crosby in a container.  On one interpretation of his witness statement, in handing it to his brother, David, he (Mark) did not indicate in anyway that the powder was dangerous or could easily be made into an explosive or anything like that.  In the light of that witness statement of Mark Crosby, as read out at trial, the defence wished, as Mr Clark frankly accepts, to rely on that evidence as indicating in effect that the co‑accused, David Crosby, did not himself therefore know that the powder was dangerous or potentially dangerous and therefore could not have so communicated to the appellant himself that it was dangerous.  Thus, so the argument would go, the appellant himself would not have known that the powder was dangerous or would have it for an unlawful purpose, which would be an essential part of the offence.  
10.	The judge concluded that the evidence of the previous conviction was relevant and admissible.  He put the matter in this way.  Having summarised the background he rightly focused on what was in issue for the jury: that is, essentially, what was the appellant's intention, not what was David Crosby's intention.  Having said that he went on to say:
"In the present case the defence have made no secret of their intention to contend ‑ by reviewing the evidence of the Crown as to how Mr David Crosby got the item and what he knew ... he had been told about it by his brother, who had actually made it, they will seek to rebut the Crown's contention that Mr Rehman, in receiving the object, knew ‑ probably because he was so informed by Mr Crosby ‑ what its nature was, or at any rate believed, whether truly or not, that its ... believed that its nature was of such a kind that it could be used for an unlawful purpose.  
If the defence are putting forward contentions as to the state of knowledge or the state of mind of Mr David Crosby in relation to the item at or before the time when he handed it over, it appears to me plainly relevant for other evidence that bears on that issue to be put before the jury, including, particularly, the evidence of the conviction which conveys directly what his intention was, as I have already adumbrated".  
11.	The judge then went on to deal with the question of unfair prejudice, and he dealt with this in this way:
"I have considered that very carefully because I do see the potential unfairness of reliance on evidence of that kind, but it appears to me that, just as at the previous trial, the answer lies in a careful direction to the jury as to the purposes for which they can and cannot take into account this evidence.  The Crown have nailed their colours to the mast in that respect, but they rely on the conviction purely as evidence of the state of mind of Crosby and his intention as he handed the tube to the defendant.  It is evidence which the jury can take into account, along with the evidence as a whole, in working out whether what they can be sure of as to what was communicated by Crosby from that intention to Rehman, if anything, and what as a consequence Rehman's intention was.  So long as the jury receives that careful direction, and it is clear to them that the fact Crosby was convicted is not in any sense conclusive or determinative of the guilt of Rehman, it appears to me that, though perhaps prejudicial in the sense that it is evidence against Mr Rehman, it will not be unfairly prejudicial and in all the circumstances therefore, I will permit the evidence to be adduced." 
12.	It is important to stress that, for the purposes of this appeal, and in contrast to the stance adopted below, Mr Clark accepts that the evidence of the previous conviction of David Crosby was relevant and admissible.  The ground of this appeal rests solely on the exercise of the discretion of the judge pursuant to section 78.  In support of his argument, Mr Clark has referred us to a number of authorities; but it is sufficient we think simply to cite the passages in Archbold which he has set out helpfully in his skeleton argument, from Archbold paragraphs 9(90) and 9(90)a:  
"In R v Curry, the court endorsed observations in R v Roberts and R v Golder that section 74 should be sparingly used, and particularly so in relation to joint offences such as conspiracy and affray (riot and violent disorder would have been better examples).  Where the evidence sought to be put before the jury by virtue of section 74, expressly or by necessary inference, imported the complicity of the person on trial, the exclusionary discretion under section 78 should be exercised."  
13.	Then a little further on: 
"In R v S it is held that the law as summarised in R v Kempster is still the law, ie a judge should exercise his discretion so as to admit the guilty plea of the co‑defendant only sparingly, taking into account the enormous weight such a conviction may have in the minds of the jury and the difficulty of properly testing it at trial, especially where its admission would close off many or all of the issues which the jury are trying on the basis of the co‑defendant could not or could scarcely have been guilty unless the defendant was also guilty."  
14.	Thus Mr Clark emphasises, amongst other things; first, that the exercise of discretion in such a case should be sparingly exercised; and secondly, such evidence should normally be excluded where the admission of such evidence would expressly, or by necessary inference, import the complicity of the person on trial.  That, he says, is the position here.  He stresses, moreover, that all this arose from the evidence of the brother, Mark Crosby, which evidence had been adduced by the Crown and read out to the jury as agreed evidence.  
15.	We are not able to agree with Mr Clark's submission.  The judge here, it must be remembered, had a discretion under section 78.  We repeat the challenge as to relevance has not been made in this court.  The circumstances here were unusual and an issue was going to be raised, and raised by the defence, on the back of the evidence of Mark Crosby as read out by the Crown, as to what the state of knowledge of David Crosby was.  That evidence being relevant, as it is now accepted it was, clearly in a sense it was detrimental to the defence if the evidence of the previous conviction of David Crosby was adduced.  But the question is not whether it was detrimental to the defence, the question was whether it was unfairly prejudicial; and the judge, for the reasons he gave, decided that it was not.  Indeed, this whole issue as to the state of mind of David Crosby being before the jury, it might well be said that the jury might have, in effect, been misled had they not known of the previous conviction of David Crosby, given the use that the defence were proposing to make of the evidence of Mark Crosby.  
16.	In our view, the judge acted within the ambit of the proper exercise of discretion in the rather unusual circumstances of this particular case, and we do not think his ruling can be faulted.
17.	Mr Clark did also make some criticisms of observations made by the judge in his subsequent summing up to the jury.  This in fact does not constitute any formal ground of appeal.  We should note that the judge set out at considerable length passages of the witness statement of Mark Crosby as read out to the jury in the course of his summing up.  The judge repeatedly stressed that what was in issue for the jury was the question of the intention and knowledge of the appellant and not that of David Crosby.  Mr Clark did complain that at one stage in the summing up, the judge indicated that the evidence, in so far as it related to David Crosby, was, taken of itself, of little or no relevance to the issue they had to decide with regard to the appellant; but that has to be set in context, and of course part of that context was that the defence itself had put in issue what was the state of mind of David Crosby himself.  
18.	In such circumstances, we think the judge was entitled to rule as he did, and we do not think there is any real substance in these grounds, cogently argued though they were by Mr Clark.  The conviction was not unsafe and this appeal against conviction is therefore dismissed. 
19.	MR CLARK:  My Lord, there is also leave been granted for an appeal against sentence.
20.	LORD JUSTICE DYSON:  Yes.
21.	MR CLARK:  My, Lord, I have set out at paragraph 27 of my original advice the arguments relied upon in that appeal.  I hope you have a copy of my original advice?
22.	LORD JUSTICE DYSON:  Yes, we do.  We are provisionally of the view that 2 years 8 months was too long and, weighing all the relevant considerations, that the judge should have passed the same sentences on your client as he did on David Crosby.
23.	MR CLARK:  Well, I have nothing further to say for risk that you might change your mind.  That is the point I make.  
24.	LORD JUSTICE DYSON:  I will ask Mr Justice Davis to explain why we get there.
25.	MR JUSTICE DAVIS:  The court having set out the background facts in relation to the appeal against conviction, the appeal against sentence can be relatively shortly dealt with.  The central submission on the part of Mr Clark is that the judge was not justified in imposing a more severe sentence on this appellant than the sentence which was imposed on the co‑accused at the first trial, David Crosby.  We do, of course, bear in mind that the judge had the benefit of hearing all the evidence adduced at the trial in this case, and also indeed, had been the judge at the previous trial.  What the judge said in the course of his sentencing remarks included the following:
"In the present case I take into account in your favour your youth, the fact you are not a man with a bad record, and ‑‑ I think I can take this into account in your favour to some extent ‑‑ the fact that your family were under threat; your cousin had actually been murdered and you yourself had, very recently before the incident in question, been subjected to serious threats according to the information before this court." 
26.	Then a little further on:
"All things considered, it appears to me that as the person who wanted this material and wanted to use it for an unlawful purpose, for your own unlawful purpose, you are, if anything, more culpable than your co‑defendant, Mr Crosby, and the least sentence that I can impose in those circumstances it appears to me is one of 2 years and 8 months' imprisonment".  
27.	Mr Clark submits that there was no basis for distinguishing between the person who supplied the explosive substance and the person who took possession of it.  It may well be that in some cases the courts can properly distinguish between sentences on a supplier of explosives and a sentence on the taker of the explosives, but in this particular case the judge gave no reasons for drawing the distinction that he gave.  Moreover, the judge highlighted certain mitigating factors which were available to this appellant which were not available to the co‑accused, Crosby; and to the extent that the judge has indicated, "you are, if anything, more culpable than your co‑defendant", one might wonder why the rather moderate use of the words, "if anything", did not at least indicate that, if there was some greater degree of culpability in the offending, it was cancelled out by the strong personal mitigation available to this particular appellant.  
28.	In the circumstances, we think there might be perceived injustice if the appellant receives a greater sentence than the co‑accused, David Crosby.  As a result, we quash the sentence imposed by the judge.  For it we substitute a sentence of 2 years' imprisonment, and time spent on remand shall continue to count towards sentence.  
29.	LORD JUSTICE DYSON:  Thank you both very much.