Case No: 200903841C1
Neutral Citation Number: [2010] EWCA Crim 1153
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM 
His Honour Judge Baker QC at St Albans Court

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 26/05/2010
Before :

LORD JUSTICE PITCHFORD
MR JUSTICE MADDISON
and
MR JUSTICE MACDUFF
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Between :

	JONATHAN WILLIAM MILLER	Appellant	
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	REGINA	Respondent	

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Melanie Simpson (instructed by Chadwyck-Healey - Solicitors) for the Appellant
Laura Blackband (instructed by CPS Hertfordshire) for the Respondent

Hearing date: 6th May 2010
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Judgment
Lord Justice Pitchford : 
1.	After a trial before HHJ Baker QC and a jury, the appellant was, on 23 June 2009 convicted of four counts of possession of Class A drugs with intent to supply, one count of possession of a Class C drug with intent to supply, and four counts of possessing criminal property.  In his defence, the appellant called a witness, Manny Clark, to support his case that neither the drugs nor the money which comprised the alleged criminal property were in his possession.  The judge permitted the prosecution to cross-examine Mr Clark as to his bad character under Section 100(1)(b) Criminal Justice Act 2003.  The appellant’s single ground of appeal against conviction with the leave of the single judge is that the judge should not have permitted cross-examination and, having done so, failed to give adequate directions to the jury concerning the outcome.
Evidence at trial
2.	On 9 April 2008 a search warrant was executed at 527 Long Chaulden, Hemel Hempstead.  The property comprised a one bedroom flat converted to two bedsits.  Bedroom 1 was occupied by a man called Tim South, the person to whom the flat was leased.  The second bedroom was occupied by the appellant.  Neither was present at the time of the search.  Found on the bed in bedroom 2 was a black ‘LA’ sports bag.  The police recovered a number of exhibits from the black sports bag, from a wash bag alongside the bed, and from a cupboard in bedroom 2.  They recovered further exhibits from bedroom 1.
3.	Each count in the indictment related to an exhibit as follows:
Count 1: a wrap of cocaine found on top of a cupboard in bedroom 2.
Count 2: three bags of cocaine, in total 34.5 grammes, recovered from a Heinz spaghetti tin concealed in a false bottom within the sports bag.  
Count 3: 41.7 grammes of cocaine recovered from a Sainsbury’s plastic bag found inside the sports bag.  
Count 4: a wrap of cocaine found in bedroom 1.  
Count 5: 157 grammes of herbal skunk cannabis inside a Co-op plastic carrier bag recovered from the sports bag.  
The cash representing the alleged proceeds of crime was distributed as follows:  
Count 6: £900 in a brown envelope found in the wash bag beside the bed in bedroom 2.  
Count 7: £1000 found in a box containing items of food within the cupboard in bedroom 2.  
Count 8: £400 found beside the telephone in bedroom 1.  
Count 9: £715 from Mr Miller’s rear trouser pocket on his arrest.
4.	Further discoveries which went to support the prosecution case that Mr Miller was a current drug dealer were as follows: Found on the same cupboard from which the Count 1 wrap of cocaine was discovered was Mr Miller’s passport.  From inside the LA sports bag officers recovered a number of used latex gloves such as might be used by a dealer handling and cutting class A drugs.  They were swabbed for DNA material.  On analysis, scientists found mixed DNA profiles.  The appellant’s profile was found on four of the gloves.  Also in bedroom 2 was found a plastic container holding 445 grammes of lignocaine and a second container holding 14 grammes of phenacetin.  These are both chemicals commonly used as cutting agents for cocaine.  There was strong scientific evidence reduced to the form of an admission that the count 1 wrap of cocaine found on top of the cupboard in bedroom 2 originated from the same batch as the cocaine found in the Sainsbury’s bag represented in count 3.
5.	Mr Miller gave evidence that he lived on benefits and odd jobs such as gardening.  He occasionally paid rent to Mr South.  The LA sports bag belonged to him but when he had last seen it in bedroom 2 it was empty.  He did use latex gloves for painting but could not explain their presence in the sports bag.  Mr Miller gave evidence that for the week before the police search, he was staying virtually full time with his girlfriend at a separate address.  He had told his close friend, Manny Clark, that he could use bedroom 2 as a place where he could meet a married woman with whom Mr Clark was having an affair.  He gave the keys to Mr Clark.  On his arrest, however, Mr Miller had the keys to the flat in his possession.  Mr Miller denied that either the controlled drugs or the money recovered from the flat belonged to him.  When, on 11 April 2008 the appellant was interviewed, he declined, in the main, to comment but submitted a prepared statement:
“I deny any knowledge of the existence of controlled substances within my room.  In addition, I am not aware of any cash being in my room other than approximately £300 that I withdrew from my post office account.  I would like to add that I have been spending a lot of time at my girlfriend, Debbie Moore’s home address.  During this time a friend has been using my room occasionally.  I do not wish to name him at present.”
On 1 May 2008 a police officer visited Mr Miller on remand in prison and was informed that the person who was using his room was Manny Clark.
6.	The prosecution was, without complaint, given leave to adduce evidence of Mr Miller’s previous convictions.  They were admitted in proof of a propensity to possess and deal in drugs.  His relevant convictions comprised the following:
(1)	At St Albans Crown Court on 15 November 2002 Mr Miller pleaded guilty to three offences of possessing cannabis with intent to supply, one offence of possessing cocaine with intent to supply, one offence of possessing MDMA (ecstasy) with intent to supply, and four further offences of possessing Class A and Class B drugs.  
(2)	At Stoke Crown Court on 23 April 2008 Mr Miller pleaded guilty to one offence of possession of cannabis with intent to supply.  He was in possession of over 1000 cannabis plants with a value exceeding £20,000.
7.	Manny Clark gave evidence that he and Mr Miller were good friends.  Mr Miller had handed the keys of 527 Long Chaulden to him in order that he could take his girlfriend there.   They would use the flat to consume alcohol and cocaine.  Mr Clark needed to be out of the way because the woman’s husband was serving a prison sentence.  The jury was shown photographs of the flat as it was found by the police.  The prosecution suggested that the state of disarray was such that it would hardly have been used even for the purpose suggested by Mr Clark.  Mr Clark explained that he owed money to some drug dealers.  He had borrowed £5,000 some years earlier and the debt had risen to £20,000.  He was threatened that if he did not repay £2,000 within a week he would be shot.  This threat had been uttered he said in the presence of his girlfriend in the car park of a public house and the girlfriend told him her mother may be able to assist him.  On Sunday 6 April he met the men again.  He did not have the money.  He said he would have it by Tuesday 8 April.  The men told him he had to look after things for them, by which Mr Clark assumed they meant drugs.  He said he could not mind drugs for them at his own home since his house had been raided by the police and cocaine found there.  He was asked if he wanted a bullet in him.  He responded that he had a mate called Jonathan Miller who had a flat that he could use.  He took the men to the flat.  There the men noticed a black sports bag.  They placed two plastic carrier bags inside it.  He assumed the bags contained cocaine.  According to Mr Clark, neither the men nor he entered bedroom 1.  On Tuesday 8 April Mr Clark’s girlfriend gave him £2,000 in cash in an envelope.  He went with the money to 527 Long Chaulden to wait for the men.  He waited for a period of two hours but they did not turn up, so, having deposited the envelope containing £2,000 in cash inside the sports bag, at 10.00 pm he left.  That was the point at which Mr Clark’s evidence in chief was adjourned for the day.  
8.	Mr Clark’s evidence created a difficulty for the defence because the cash in bedroom 2 (which totalled £1,900) was recovered in two separate amounts, £900 in the wash bag, and £1,000 in a box in the cupboard.  On the face of it, their discovery was inconsistent with the evidence of Mr Clark.  When he resumed his evidence in chief on the following morning, Mr Clark gave a different account of the distribution of cash.  This time he said that of the £2,000 he had spent £80-£100 in the pub on alcohol and cocaine.  That would reduce the sum in the envelope to about £1,900.  He was shown a photograph of the wash bag.  He explained that while waiting for the men he had taken cocaine and was getting paranoid.  He thought he had put the money in the holdall but he could have left it anywhere.  He was then shown a photograph of the box recovered from the cupboard.  Mr Clark responded that he recalled he had put money in the box but thought he had afterwards removed it.  Mr Clark’s evidence did not explain the presence of other articles found in the sports bag.  They comprised electronic scales, a spoon, a pair of scissors, a quantity of magazines and cut up magazines, the latex gloves, and the spaghetti tin within the false bottom.  He had no explanation to give as to the cocaine, money, and an envelope on which a number of names were written, found in bedroom 1.  It had been Mr Miller’s evidence that Mr South, the occupant of bedroom 1, was not at that time a drug user.
Application to adduce bad character evidence
9.	On Friday 19 June the prosecution made an application to cross examine Mr Clark as to his bad character.  Mr Clark had been charged with two serious offences.  The first was that between 9 January and 17 February 2009 he had conspired with others to supply drugs to undercover police officers.  The second was that on 20 February 2009 he had supplied a shot gun to an undercover police officer.  The application was made by Ms Blackband under Section 100(1)(a) and (b) Criminal Justice Act 2003 on two grounds, first that it was “important explanatory evidence” and, second, that it had “substantial probative value in relation to a matter…in issue in the proceedings”, which was of “substantial importance in the context of the case as a whole”.  Both Ms Blackband and Ms Simpson were counsel at the trial.  In the absence of a transcript of the application they were agreed that Ms Blackband sought from the learned judge leave to ask limited questions about Mr Clark’s remand in custody for these offences.  She wished to suggest that Mr Clark was expecting a lengthy sentence of imprisonment.  For this reason, he was prepared to take responsibility for drugs and money belonging to Mr Miller in the belief that his sentence would not be significantly increased.  Furthermore, the prosecution wished to suggest that a man with access to firearms was unlikely to be intimidated by the threats which Mr Clark claimed was the underlying reason for the presence of the drugs and cash in bedroom 2. 
10.	Second, Ms Blackland wished to suggest to Mr Clark that he was guilty of the offences with which he had been charged.  If he agreed that he was guilty, his bad character would be substantially probative of the prosecution’s assertion that his evidence could not be believed.  
11.	It was not, however, the intention of the prosecution, should Mr Clark deny his guilt of the matters for which he had been charged and remanded, to prove his guilt by adducing evidence in support of the truth of the assertions made in cross-examination.  Ms Blackland conceded in the course of her application that in the event Mr Clark denied involvement she would be bound by his answer.
The Judge’s preliminary ruling
12.	On Friday 19 June 2009 time was short and the judge agreed to announce his decision with the intention of giving full reasons later in the trial.  In the course of evidence in chief Mr Clark had himself referred to his background including investigations into his alleged involvement in drug dealing in 2008.  It is unnecessary to make reference to the Judge’s ruling in relation to those matters.  He said about the 2009 matters:
“The conclusion that I have reached is that the Crown should be permitted to ask questions ... in relation to the other matters arising out of an undercover police operation.  I am going to invite Ms Blackband to be particularly careful to avoid going into detail so far as possible to relation to either of these matters, but particularly the second more serious series of offences alleged.  And she has already acknowledged that she will be bound by the answers that are given.  I am not going to exclude her from making reference to the fact that [Mr Miller] is charged with a firearms offence, among other offences.”
Cross Examination of Manny Clark
13.	In the absence of a transcript we were again dependent upon the joint recollection of counsel.  Ms Blackband put to Mr Clark her assertion that he was motivated to tell lies on Mr Miller’s behalf by his expectation of a substantial sentence for the matters with which he was charged.  Mr Clark denied the suggestion.  Ms Blackband put to him that he was in fact guilty.  He suggested that he was being set up.  He was the victim of a conspiracy.  Anyone, he remarked, could get hold of an antique gun.  We are informed that Ms Blackband, as she had undertaken, did not further seek to support her assertions.
The Judge’s Second Ruling
14.	When, on 23 June 2009, the jury were in retirement the learned judge gave, as he indicated he would, his fuller reasons.  He said:
“... These are my deferred reasons.  The Crown ... sought to cross examine [Mr Clark] on the fact that following an undercover police operation, he had been arrested for offences of possession with intent to supply undercover police officers with controlled drugs, and also he had supplied a sawn off shotgun ....  In relation to the ... matter, a 38 page summary, giving a chronology of the undercover operation over a protracted period of time was disclosed.  Most of that concerned persons other than Mr Clark.  A few pages, however, dealt with conversations between Mr Clark and the undercover police officers and with the transactions upon which the Crown relied.  The conversations were perhaps more revealing than the transactions themselves.  The defendant has been charged but not yet arraigned in relation to these matters themselves.  The Crown asserted that the evidence was important explanatory evidence, and it had substantial probative value to a matter in issue to the case, and it was of substantial importance in the context of the case as a whole.  It was therefore admissible under Section 100 (1) (a) and (b) Criminal Justice Act 2003.  The defence submitted that neither route to admissibility was available...  It is to be noted that the application was only to cross-examine the witness, it was not to adduce other evidence to present to the jury.  In the old days before Section 100 came into force, the Crown would have been permitted without the necessity of seeking leave to cross-examine the witness about his misconduct in order to impeach his credibility.  Nowadays, leave is required because the old common law rule has been effectively demolished (see section 99 (1) of the Act).  Mr Clark’s evidence was that he had been compelled by two men to whom he owed £20,000 to find a safe place to leave some items which he thought were cocaine, with a threat that if he did not, he would be shot.  He said he took the threat to be a serious threat to his life and to his safety.  His credibility was an issue, a fact accentuated by what was arguably a significant change in direction in his evidence after the overnight adjournment.  The Crown’s case was that the story was concocted and that Mr Clark was prepared to give evidence to support the defendant, his friend, and incriminate himself because he knew he faced a long sentence for the matters with which he is presently charged, because his own incrimination would not add significantly to his sentence.  This submission seemed to me to overlook the fact that his evidence had not necessarily incriminated himself, for it left open the defence of duress, and it overlooked the fact that he has not been convicted of the most recent drugs and firearms offences...  Mr Clark’s credibility as a witness is a central issue in this case.  Far fetched as the Crown’s approach to this case may be, the jury are entitled, in my judgment, to learn about his involvement in matters which might have a bearing on his truthfulness as a witness, not so much for the purpose of establishing the Crown’s theory as to why he might be prepared to support the defendant, but more simply to impugn the truthfulness of his claim as to what happened, namely that he left drugs in the defendant’s bedroom because he had been threatened.  I make it clear that the fact he had not been convicted of these offences would also inevitably emerge, if, as I understood, he disputed these charges too and indeed he did.  But those then are the reasons for permitting this evidence to be put before the jury.  I have now given them.”
Directions in Summing Up
15.	As the evidence turned out, the judge clearly took a jaundiced view both of the theory advanced by the prosecution as to why Mr Clark should give false evidence in support of Mr Miller and as to the state of the evidence that he, Mr Clark, was guilty of the offence of conspiracy to sell a firearm.  Accordingly (at page 9 of the transcript of summing up), the judge directed the jury as follows:
“He denied being a dealer in drugs.  He said he had no convictions for drugs offences, and that is not, I think, disputed.  Though he currently faces a trial in relation to allegations concerning drugs and a shot gun.  I’d better have a word about these.  Those allegations are allegations.  And allegations don’t by themselves prove anything.  Furthermore, they are denied by Mr Clark.   Ms Blackband says that a man who comes forward in matters which have led to him being charged, as Mr Clark is, is hardly a man who would be scared by a drug debt and threats in relation to it.  Mr Clark didn’t actually say that he was scared by the drug debt, but he did say that he took seriously the threat of being shot.  Be very careful to treat Mr Clark fairly.  There is no evidence of him being a drug dealer, nor is there evidence that he is guilty of the offences that are currently charged.”
16.	The judge returned to the same issue (at page 24 of the transcript) just before reminding the jury of Mr Clark’s evidence:
“Counsel’s suggestions, members of the jury, about his guilt, do not amount to evidence.  And a suggestion about facing a long sentence has no foundation in anything that has been put before you.  My direction, which I add to what I have already said is this.  You should disregard those particular suggestions and don’t take into account what you have heard about his arrests in 2008.  They really cannot help you in any way which would be fair to your assessment of him, and in any way which would be fair to the prosecution’s case.”
Discussion and Conclusion
17.	Ms Simpson challenges only the Judge’s decision to permit cross-examination as to the firearm charge.  She submits that the judge had formed the view that the prosecution’s theories were unimpressive.  The prosecution did not seek to prove Mr Clark’s bad character. In the absence of admission or proof of guilt the mere assertion in cross examination was incapable of probative force.  Since the judge understood Mr Clark to deny the recent offences with which he has been charged, there was no question of the jury being entitled to have regard to the allegations when assessing either his motivation for giving evidence or his credibility as a witness.
18.	We accept the submission made by Ms Blackband that the credibility of a witness’s account in evidence is, depending upon the circumstances, capable of being an issue of substantial importance in the trial (see, in this respect, the decisions of this court in Yoxley–Lennon (reported with Weir) [2005] EWCA 2866, [2006] 1 Cr App R 19 at paragraph 73; and Osbourne (reported with Renda) [2005] EWCA Crim 2826 at paragraph 58). Whether the bad character of the witness relied upon by the opposite party can be regarded as of substantial probative value in relation to the issue of credibility is the second and a very important judgement the trial judge has to make.  
19.	We agree also that if bad character could expose a witness’ motive it may indeed constitute important explanatory evidence.
20.	Evidence of bad character is not confined to proof of previous convictions, but whether or not the evidence relied upon comprises convictions or previous conduct otherwise proved, it must pass the section 100(1) test of being (1) important explanatory evidence or (2) of substantial probative value on an issue of substantial importance.  The purpose of section 100 in the present context is to limit the ambit of cross-examination to that which is substantially probative on the issue of credibility, if credibility is an issue of substantial importance in the case.  One of its intended effects is to eliminate kite-flying and innuendo against the character of a witness in favour of a concentration upon the real issues in the case.  Ms Blackband had sound material upon which to suggest to Mr Clark in cross examination that he was guilty of the offences with which he had been charged, but unless she was in a position to prove his guilt and intended to prove his guilt in the event of denial it does not seem to us that this was an exercise which should have been embarked upon at all.  Furthermore, the evidence was not, on any view, capable of amounting to important explanatory evidence unless the witness’s guilt was proved. The suggestion that Mr Clark had the motive attributed to him for assisting Mr Miller held no water unless it was proved that he was guilty of the offences with which he had been charged. It was a speculative exercise of the very kind that section 100 was intended to prevent.
21.	We do not suggest that there will be no circumstances in which one party will be permitted to ask a question in cross-examination with a view to eliciting an answer implicating the witness in bad behaviour which behaviour that party would otherwise be unable to prove, but we suggest that such occasions will be infrequent and limited in scope, for example during cross examination as to the discrete detail of an admitted conviction or admitted behaviour.  In the event that the accusation is denied and otherwise unproved, the jury will require a specific direction to the effect that they must not regard the question as in any sense assisting the prosecution case.
22.	In Bovell and Dowds (2005) EWCA Crim 1091, the court was faced with a similar problem as to proof of the bad character alleged.  Mr Bovell was charged with and convicted of an offence contrary to Section 18 Offences Against the Person Act 1865, wounding with intent.  His defence had been self-defence.  Following conviction in January 2005, his legal representatives discovered that the complainant had himself been the subject of an investigation in 2001 for an offence of wounding with intent.  The alleged victim eventually withdrew the complaint for reasons which were unknown.  Mr Bovell argued on appeal that, had he been aware of the allegation, he would have sought, and should have been given, leave to cross examine the complainant upon this incident, since it went directly to the issue of his credibility and, therefore, the safety of the conviction.  At paragraph 21, Rose LJ giving the judgment of the court said:
“21...	It seems to us to be unlikely in the extreme that the judge, had he known of the events in 2001, would have admitted the allegation of a Section 18 offence made against the complainant.  We say that, first, because we entertain considerable doubt as to whether the mere making of an allegation is capable of being evidence within Section 100(1).  As the allegation was, in the circumstances which we have identified, withdrawn, our doubt on this aspect is increased.  
22. It is apparent from the circumstances, as we have summarised them, that if there was to be any question of the Section 18 allegation being admitted before the jury, it would necessarily have given rise to investigation of the other subsequent matters, including the aspersion on the credibility of the victim, the want of independent confirmation of his account, and the fact that he had withdrawn the allegation.  An excursion into these satellite matters is, as it seems to us, precisely the sort of excursion which, as was suggested, in paragraph 12 of the judgment in Hanson, a trial judge should be discouraged from embarking upon.  All of this adds to the unlikelihood of the judge permitting evidence of the 2001 events even if they had been known about at trial.”
23.	In our judgment, the same insuperable problem arose here.  The prosecution was seeking to pose questions to Mr Clark in the speculative hope of obtaining an admission that he was guilty of very serious criminal offences.  As it was understood at the time of the application, he would deny his involvement.  He would need to be, or should have been, advised that he did not have to answer the question if to do so might incriminate him.  The result could only have been a denial by which the prosecution would have been bound, or Mr Clark would have refused to answer.  These questions should not, by reason of the unfair prejudice they were capable of producing, have been permitted, certainly not unless the prosecution intended, with the judge’s leave, to prove them.  Having regard to the scale of the exercise necessary to prove them, it is clear that the judge would not have permitted it, and, indeed, he received an undertaking from the prosecution to be bound by Mr Clark’s answer. We consider that the learned judge should have refused Ms Blackland’s application, particularly in the light of his own scepticism as to its relevance to the issue of guilt and to the issue of motive.
24.	We turn to the safety of the verdict.  In our judgment, the judge could hardly have been more emphatic in his instruction to the jury to the following effect: that they should pay no attention to the allegations put in cross-examination; that there was no evidence to substantiate them; that Mr Clark’s evidence must be treated fairly; and that the questions put could not assist a fair assessment of his evidence.  It is the joint experience of the members of this court that juries play close attention to warnings of this kind.  We have no reason to think that the jury would not have followed the judge’s instructions faithfully.  They were, in our opinion, sufficient to remove from Mr Clark the taint that his evidence should somehow be discounted or diminished on the grounds of mere assertion or suspicion.  This was, in any event, by the end of the evidence a strong case.  We entertain no doubt that the verdicts were safe.
25.	By way of postscript, however, we should add that following Mr Miller’s trial at St Albans, Mr Clark was arraigned upon the two disputed matters relating to a conspiracy to supply drugs and a conspiracy to supply a firearm, and he entered pleas of guilty. His denials to the jury during Mr Miller’s trial were therefore untrue. It follows that the directions given by the judge to the jury were much more favourable to Mr Miller and Mr Clark than they would have been entitled to expect had the true facts been known at the time of trial. Had the jury known the truth of the allegations put to Mr Miller they would have been entitled to apply that knowledge both to their judgement of the credibility of his evidence and to their evaluation of the worth of the prosecution’s theory as to motive.
26.	At the conclusion of argument the parties were informed that the appeal would be dismissed, and these are our reasons.