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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Hayes, R. v [2010] EWCA Crim 773 (23 March 2010) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2010/773.html Cite as: [2010] EWCA Crim 773

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Sitting at Cardiff Crown Court Cathays Park Cardiff, South Glamorgan CF10 3PG
		23 March 2010

1. THE VICE PRESIDENT: This appellant was convicted on a single count of possession of cocaine with intent to supply. It was a case in which he admitted the possession but denied the intent to supply. He had also pleaded guilty to other drug offences and, relevantly, those included two of either supply or intended supply of cannabis.
2. On his behalf, Mr Cordingly takes two points. First, he contends that the conviction is rendered unsafe by irregularity. When the jury asked to see an exhibit, he says that something was innocently but erroneously sent to them which had not properly been dealt with in evidence. Secondly, he contends that the judge's direction as to the proper approach to the finding of a four figure sum of cash was inadequate.
3. There had been a drugs search. The police had found a substantial quantity of material. Some of it was no longer relevant to the limited issue before the jury, which was confined to the intention to supply cocaine. As in many such cases a number of different items, whether of drugs or paraphernalia, were found in different places about the house where the defendant lived. Sometimes the exact location of where an exhibit was found is extremely material, but in this case it was not. What mattered in this case was whether the various exhibits admitted of an innocent explanation or whether they demonstrated that the defendant was guilty of intention to supply. The defendant's case was that the things found were either attributable to his cannabis dealing, which he had admitted and which was not before the jury for decision, or were simply entirely innocent household items.
4. The present argument revolves around plastic bags found. Quite a quantity of different sorts of plastic bag were found in a number of places about the defendant's house. There were some freezer and sandwich bags in the kitchen, some more bags and some ice bags in a sports bag in the boot of his car, and some sandwich bags in a separate holdall inside the cabin of the car. In addition to those, in a sports bag, itself contained in a bin liner near to the front door, there was found together with digital scales and some cannabis bush, a quantity of small plastic self-sealing bags which were later described as about an inch square.
5. In organising the exhibits for a trial limited to the single count of possession of cocaine with intent to supply, there had been sensible and helpful co-operation between counsel. The jury had an exhibit list which itemised both the contents of the sports bag by the front door, which included small plastic bags, and also a compendious quantity of plastic bags from various other places. The first of those was labelled P1 and the second was labelled P5. All the bags were of course potentially relevant to a charge of possession of drugs with intent to supply, but of particular potential significance were the smallest ones. The officer in the case, DC Banks, had given evidence about those and his evidence was that cocaine is typically sold in such square transparent bags. He looked in the witness box at the bags which had come, as we understand it, from the sports bag by the front door and were part of P1 and he described them as "typically those that would be used for that purpose." He had also given some evidence of a similar kind about clingfilm.
6. During retirement the jury sent a note asking if they could have exhibit No 5 on their list, which they may or may not have had with them. Exhibit 5 was, if we may so describe it, the miscellaneous or compendious collection of plastic bags. But there were also plastic bags in P1. The judge took the trouble to ask for the assistance of counsel and asked them to check what it was that the jury was asking for. He was aware that it was plastic bags. Counsel for the Crown, Miss Parry-Evans, pointed out that P5 did not contain all the plastic bags because some of them were in P1, although she did not specifically say that. But there was assembled for the jury either all or alternatively a selection of all available types of plastic bag including therefore the little ones about which DC Banks had given specific evidence.
7. In dialogue with the judge Miss Parry-Evans explained what had been done. The judge enquired specifically of counsel for the defence whether that was agreed and counsel for the defence, as it seems to us entirely properly, answered: "Yes". It was made clear, said counsel, that although there was a large number of plastic bags, they had all come from different places. The jury knew that but the exhibit was the plastic bags generally. The judge was accordingly satisfied that the right thing was going to the jury in answer to its question and there was sent through to them, as we understand it, a compendious selection of plastic bags which included the little ones.
8. The submission now made is that that may have meant that additional plastic bags were sent to the jury. Moreover, says Mr Cordingly, who has understandably been concerned about what in the end occurred, the little plastic bags which were sent through to the jury and about which Constable Banks had given evidence had never been covered by the defendant in evidence, either in chief or for that matter in cross-examination.
9. If there had gone to the jury something which was, first, damaging to the defendant and, secondly, something which had not been properly in evidence, that would indeed be an irregularity and it would demand a careful investigation as to the safety of the verdict. However, it is abundantly clear from the body of the summing-up, from the depositions in the case and specifically from the discussion which the judge carefully had with both counsel, that this is not what happened. The small plastic bags may well have been added to what had previously been labelled P5, having come from what had been labelled P1. But as we have said, the location of finding was irrelevant. What mattered was whether there was or was not an innocent explanation for their possession. What went to the jury may or may not have been the subject of the defendant's evidence but that was a matter for him and his advisers on the one hand and for counsel for the Crown on the other. What went to the jury was in evidence and had been discussed before the jury because Constable Banks had given evidence about it. The jury was entitled to see what Constable Banks had been talking about. There was accordingly no irregularity at all and Mr Cordingly should reassure himself that his assent to the exhibit being sent to the jury in the form that it was was entirely proper.
10. As to the money, the position was this. There was £1,100 found on the defendant made up of £50 notes and in a jacket upstairs there was another £1,500, or indeed if the defendant was accurate rather more. The Crown clearly relied on the money found as evidence consistent with the proceeds of habitual drug dealing. That was in this case of rather less value than it might have been in some for two reasons. The first was that the defendant's own case was that he was a regular dealer in cannabis and the second was that he said he was a gambler. The latter is easily said but in this case there was evidence that he had been in the casino the night before he was arrested. However, there was a question for the jury about the money. The defendant's own case was that his level of profit from cannabis dealing was about £200 to £300 a fortnight. Given that he had insisted that he was spending extremely heavily on cocaine for personal use and on his own account was spending at a minimum about £600 a week on that, the jury would have been entitled to conclude cannabis dealing at the level he suggested would not have accounted for the presence of £2,600 in cash. There was also inevitably a question to be decided as to whether the jury accepted his explanation as to the gambling.
11. It is now agreed, the transcript of the summing-up being available, that the judge at an early stage of the summing-up gave the jury an exemplary direction as to the necessity before treating the possession of money as supporting the case that they were sure that the defendant's explanation about it was untrue. There is nothing more to be said about that. But what Mr Cordingly submits is that the judge omitted to add what he calls the second limb of a money direction - in this case that they had to be satisfied that they could reject the defendant's account that the money was the product of cannabis dealing. Careful inspection of the summing-up demonstrates that that criticism is not made out. The judge in fact gave them quite a lengthy account of the money. He made it clear what the defendant's asserted innocent explanation of the money was. He made it clear that it was the Crown's case that the money was too much to be attributed to cannabis dealing. He dealt with the gambling evidence and the expenditure on cocaine. He made it, as it seems to us, entirely clear that the jury had to address the question of whether the dealing in cannabis could be the explanation for the possession of the money.
12. We are satisfied that the direction to the jury was fair and comprehensive. We should add that Mr Cordingly initially framed his submission in terms of a complaint that the direction did not conform to a Judicial Studies Board model direction. That, as so framed, it needs to be said as clearly as possible, is not and never can be by itself a ground of appeal. The Judicial Studies Board does not issue directions or orders to judges. It is a forum within which they can compare their practices. The so-called model directions which are in any event about to be supplemented by additional sample directions are no more than that. They are examples which may be helpful to judges in framing a direction which is tailored to the individual case. It is fundamentally to misunderstand the nature of the Judicial Studies Board and the materials provided by it to treat any of its materials as carrying any force of law at all. None of that undermines the real gist of Mr Cordingly's submission which is that the direction failed to give the jury the help that it needed and that we hope we have dealt with. But it is important that it should be understood what the significance is and more importantly what the significance is not of model directions issued by the Board.
13. We are, for the reasons we have given, entirely satisfied that the direction which the judge gave was adequate; indeed comprehensive, fair and neutral. It placed the issues squarely before the jury for their decision and the jury reached its decision upon it. In those circumstances, the conviction is safe and neither of the grounds carefully advanced by Mr Cordingly persuade us otherwise. The appeal must accordingly be dismissed.