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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Johnson, R. v [2013] EWCA Crim 2001 (22 October 2013) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2013/2001.html Cite as: [2013] EWCA Crim 2001 |
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CRIMINAL DIVISION
Strand London, WC2A 2LL |
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B e f o r e :
MR JUSTICE HENRIQUES
MRS JUSTICE COX DBE
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R E G I N A | ||
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STEVEN OLIVER JOHNSON |
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Mr J Murray-Smith appeared on behalf of the Crown
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"As I have said, it is for the prosecution to prove the defendant's guilt, and each element of the indictment has to be proven. There are some about which you may have little need to dwell. For example, you have heard evidence in relation to the forensic analysis of the things that were found at Mr Johnson's flat, and certainly, the drugs were found, 7.35 grams of crack cocaine is a matter upon which you have heard the evidence from the expert. About which there was, you might think, very little in the way of challenge. And you may not necessarily be detained long in consideration of that. But it is for the prosecution to prove that Mr Johnson had those drugs in his possession, and it is for the prosecution to prove that he had them with the intention of supplying them to others. What does this mean? Well let me explain. Let me tell you what possession is."
The judge then explained to the jury, in terms about which there is no criticism, what was meant by possession. In connection with the issue of intent the Recorder said this:
"Of course, there are two other elements of the charge that I should deal with, and that is supply. Well what does supply mean? Supply means... passing on a thing to another person so that other person can do with it what they want. And what the prosecution's case here is, is that Mr Johnson was in possession of this triangular piece of crack cocaine with the intention of passing it on to others. And there is the third element that I wish to direct you on, intention. The prosecution must make you sure that Mr Johnson intended to supply this crack cocaine to somebody."
The Recorder said nothing about the evidence, if any, that was capable of supporting the prosecution case of an intention to supply. He did, in connection with the issues of knowledge, as it applied to the legal concept of possession, draw the jury's attention to the other articles found in the flat, which may, depending upon their view, assist them as to whether or not the appellant had knowledge and therefore possession of the crack cocaine in his jacket pocket.
"10.... There is no automatic requirement on a judge to leave an alternative verdict if such a verdict would not properly reflect the facts of the case, when judged realistically, or would not do justice to the gravity of the case. This court stressed [in Foster] that whether it is necessary to leave such a verdict, even when legally available as an alternative, will depend on the facts of the individual case. But if it is a realistically available verdict on the evidence, as an interpretation properly open to the jury, without trivialising the offending conduct, then it should be left.
11. It is, in our view, particularly important that this is done where the offence charged requires proof of a specific intent and the alternative offence does not. Even then there may be circumstances where the issue of specific intent does not truly arise... However, there will be cases, as Coutts recognised, where it is necessary to leave the lesser offence as an alternative to avoid the dangerous situation where the jury is faced with the stark choice of convicting for the serious offence or acquitting altogether. That may give rise to a miscarriage of justice."