Neutral Citation Number: [2017] EWCA Crim 100
Case No. 2015/04809/B1
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Friday  17th  February  2017

B e f o r e:
LORD  JUSTICE  SIMON

MR  JUSTICE  HOLROYDE

and

MR  JUSTICE  SOOLE

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R E G I N A
 
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LEON  PALMER
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Miss G Frost appeared on behalf of the Applicant
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J U D G M E N T (Approved)
LORD JUSTICE SIMON:   I shall ask Mr Justice Holroyde to give the judgment of the court.

MR JUSTICE HOLROYDE:
1.  Early in the evening of 4th October 2014 police officers in Chelmsford stopped a car in which were three young men who lived a significant distance away in East London.  The applicant, Leon Palmer, was the front seat passenger.  He was holding a mobile phone.  When he stepped out of the car he was seen to discard a lock-knife.  Each of the other two men in the car had two mobile phones, at least one of which was receiving repeated incoming calls whilst the police were at the side of the vehicle.  In a pocket behind the driver's seat were found two packets containing respectively 22.2 grams of crack cocaine and 13.5 grams of diamorphine.  The aggregate street value of these Class A controlled drugs was around £3,500.  

2.  When interviewed, the applicant made a short, prepared statement in which he denied any knowledge of the drugs, but then made no comment and put forward no explanation as to why he was in the car or why he was in Chelmsford.

3.  On 2nd October 2015, following his trial in the Crown Court at Chelmsford, the jury found the applicant guilty of an offence of having an article with a blade or point, contrary to section 139(1) of the Criminal Justice Act 1988 (count 1), and two offences of possession of a controlled drug of Class A with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act 1971 (counts 2 and 4).  

4.  On the applicant's behalf, Miss Frost advanced in writing two grounds of appeal: first, that the trial judge had been wrong to refuse her application that count 1 (having a bladed article) should be severed from the other counts on the indictment; secondly, that the learned judge had been wrong to refuse the submission of no case to answer, which was made at the conclusion of the prosecution evidence.

5.  The applicant now renews his application for leave to appeal against conviction following refusal by the single judge.  We are grateful to Miss Frost for her oral submissions, which were focused upon the ground of appeal which related to the submission of no case to answer.  The applicant further seeks an extension of time of approximately six months in which to renew his application.  The basis of that application is that he did not receive in prison the correspondence informing him of the adverse decision of the single judge.  

6.  The applicant himself subsequently sent a letter to the court seeking, in courteous terms, to add a third ground of appeal which appears to be based on the decision of the Supreme Court in R v Jogee.  That has not been pursued by Miss Frost.  It was based, we think, on a misapprehension of the effect of the decision in Jogee, and we need say no more about it.

7.  The explanation advanced for the application for an extension of time is a reasonable one, and if there were merit in the grounds of appeal this court could be persuaded to extend time.

8.  We turn to the grounds of appeal.  The first has not been actively pursued by Miss Frost, although it has not been formally abandoned.  It is implicit in her submissions that the counts in the indictment were properly joined, pursuant to rule 3.21(4) of the Criminal Procedure Rules because they were founded on the same facts.  The application to sever was made pursuant to section 5(3) of the Indictments Act 1915 on the basis that the applicant would be embarrassed or prejudiced in his defence to the drugs charges if the jury were aware of the evidence relating to the bladed article charge.  As part of its case on count 1, the prosecution successfully applied to adduce evidence of a propensity to carry knives by proving that the applicant had twice been convicted of similar offences.  The written submission was that the evidence relating to those previous convictions caused the applicant prejudice in his defence to the drugs offences.   Accordingly, it was argued that count 1 should have been severed.

9.  The learned judge rejected that application.  He concluded that there was "simply no basis for severing count 1".  He observed that this was an entirely straightforward case in which the jury would be (and in due course were) directed to take the evidence relating to propensity into account only in relation to count 1.  The learned judge felt that the jury would have no difficulty in following such a direction.

10.  We agree.  We take the view that Miss Frost was realistic in not seeking to pursue this ground of appeal.  The familiar decision in  Ludlow v Metropolitan Police Commissioner [1971] AC 29 suffices by way of authority.  The judge was entitled to exercise his discretion to refuse severance for the reasons which he gave.

11.  We turn to the second ground of appeal.  Miss Frost tells us that all three defendants submitted that there was no case to answer.  She naturally focuses her submissions on the position of the applicant.  She observes that there may have been factual distinctions between his case and those of his co-accused which might have enabled a different decision to be reached in their cases.  Basing herself upon the first limb of Galbraith, she submits that there was simply no evidence upon which a jury could find the applicant guilty.  She observes that there was no direct evidence that he either knew about the drugs or was in joint possession of them, and that there was no reliable basis for any inference of individual or joint possession on his part.

12.  The judge gave a short ruling in relation to all the applications.  He said:

"I am entirely satisfied that there is a prima facie case to answer.  These are three young men, some distance away from their home, in a car with £3,500 worth of Class A drugs.  Two of them are sporting a pair of phones, which we are all used to encountering in these courts as being indicative, not probative of but indicative of involvement in the drugs trade.

It seems to me that whilst each defendant has strong arguments to advance in front of the jury, I should not usurp the role of the jury, and that there is plainly a basis here for them being able, if they think it appropriate in the light of all of the evidence that they hear in this case, to draw the inference that the Crown invite them to, which is, effectively, that this was joint possession."

13.  With that short ruling this court agrees.  The flaw in Miss Frost's able submissions, as it seems to us, is that they treat the applicant as if he were in complete isolation from the other two young men travelling in the car with him.  The reality of the situation was, as the learned judge observed, that all three were some distance from their home and all three were in a car with a stash of drugs, which were valuable but were wholly illegal.

14.  The jury were entitled on the evidence adduced by the prosecution to be sure that they could safely infer joint possession of the drugs by all three young men.  Once the inference of joint possession was drawn, then it seems to us that the further inference of an intention to supply was overwhelming, having regard to the quantity of drugs involved.

15.  The test for the learned judge to apply at the conclusion of the prosecution evidence was whether, taking the prosecution case at its highest, a reasonable jury, properly directed, would be entitled to draw those inferences.  In our judgment, the learned judge was correct to conclude that that test was satisfied.

16.  It follows that none of the grounds of appeal is arguable and that, accordingly, no purpose would be served by granting the extension of time.  The application for an extension of time is accordingly refused, with the result that the renewed application for leave to appeal must fail.

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