Case No: 2000/04121/X3
 
Neutral Citation Number: [2001] EWCA Crim 2697
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BOLTON
(Mr Recorder Wright) 
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 4th December 2001

B e f o r e :

LORD JUSTICE POTTER
MRS JUSTICE RAFFERTY
and 
HIS HONOUR JUDGE ZUCKER QC
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	REGINA
-v-
DAVID JOHN HODGSON		

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Roger Green Esquire (instructed by the Crown Prosecution Service)
Neil Fryman Esquire (instructed by Russell & Russell, Bolton, for the appellant)

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Potter:
1.	On 26 June 2000 in the Crown Court at Bolton before Mr Recorder Wright and a jury the appellant was convicted and sentenced as follows.  On Count 1 (Supplying a Class A Controlled Drug- heroin) he was convicted by a majority of 10:2 and sentenced to fifty-four months imprisonment.  On Count 2 (Possessing a Class A Drug with intent to supply – heroin) the appellant was convicted unanimously and sentenced to fifty-four months imprisonment concurrent.  On Count 3 (Possessing a Class A controlled drug – Heroin) the appellant pleaded guilty and received a similar concurrent sentence.  An order was made under s.27 Misuse of Drugs Act 1971.  The appellant appeals against conviction with leave of the single judge who granted leave limited to two of the several grounds of appeal put forward.  Upon this application, counsel for the appellant applied for leave nonetheless to argue further grounds, which leave we granted.
2.	Before turning to the grounds of appeal against conviction it has been brought to our attention that the sentence upon Count 3 in respect of the appellant’s plea of guilty to ‘possessing’ was imposed in respect of the same quantity of drugs which formed the subject of Count 2 (Intent to supply).  That being so, at the outset of the hearing we granted leave to appeal in respect of that aspect of the sentence.  We quash the sentence imposed on Count 3 and substitute no separate penalty (c.f. Cole 49 Cr App R 199 and Bedington 67 Cr App R 285).
3.	A short synopsis of the facts is as follows.  On 29 September 1999, police officers seized a ‘wrap’ containing 83 mgs of heroin from Joan Dixon as she emerged from the address of the appellant (Count 1).  Shortly afterwards, police entered the appellant’s house where they recovered two further ‘wraps’ of heroin from a television remote control which the appellant was holding at the time (Counts 2 and 3).  The appellant denied supplying Miss Dixon.  He admitted possession of the heroin found, which he said was for his own use.
4.	A summary of the evidence for the prosecution is as follows.
Count 1
5.	Police officers observed the appellant’s house 28, Seven Street, on 29 September 1999.  At 11.59am they saw Joan Dixon enter the address and within minutes she left the property.  Police officers seized and searched her, discovering a ‘wrap’of heroin containing 83 milligrams of heroin said to be worth £10.  Thirty minutes later the police executed a search warrant.  When they entered he house the appellant was the only person there.  He was sitting in the lounge by the window with a television remote control in his hand in which the police discovered two ‘wraps’ of heroin.  One contained 87 milligrams of heroin and the other 111 milligrams.  The heroin and ‘wraps’, as well as foil which was also discovered, were forensically examined.  There was no evidence the ‘wraps’ came from the same piece of foil.  However, the heroin inside the ‘wraps’ matched, to the extent that each ‘wrap’ consisted of eighty per cent heroin, adulterated with caffeine and paracetemol.  As explained by a forensic scientist called for the Crown, that was evidence that the heroin in the three ‘wraps’ came from the same factory, having been submitted to the same manufacturing process, which produced its particular chemical makeup or ‘signature’.  During the police search they did not discover the £10 which Dixon would have paid the appellant had she bought the drugs from him.  PC Meeks, an experienced police officer, said that the ‘wraps’ of heroin were in the form of elongated rectangles, such wrapping being unusual, she never having seen similar rectangles before.  The forensic scientist, having first stated that the wrappings were slightly unusual said that this was probably an understatement.  
Count 2
6.	On 28 September 1999, the day before the arrest of Joan Dixon, the police observed and identified sixteen people and twelve visitors to the appellant’s property.  Many had stayed at the property for one or two minutes only.  At one stage a police van was called to the street to attend to a different property.  Whilst the van was present, a visitor went to the appellant’s house and was about to knock on the door when a hand appeared and pointed down an alleyway which the visitor then walked down.
7.	Justin Doyle, who was known to the police, was seen leaving the house at 11.48.  After he had left, others continued to arrive, go in and stay at the property for some two minutes before leaving.  On two occasions the appellant left the property for periods of fifteen and eighteen minutes respectively.  Whilst he was away, another visitor arrived.  That visitor did not leave, but instead waited for the appellant to return before leaving.
8.	The police seized a McDonalds’ spoon of distinctive type from the appellant’s residence.  It was not in dispute that the spoon was of a kind favoured by drug dealers in order to measure 100 milligrams of heroin.  It was found in a silver tankard in a wall unit at the house.  PC Meeks said that she was aware that McDonalds had stopped supplying the spoons some two years before when it became known to what use they were put.  Two rolls of foil were also found at the appellant’s house.  Such foil could be used for the smoking of heroin.  It could also be used to wrap up deals of heroin.  Neither roll was in the kitchen.  One was found on the coffee table in the lounge and the other in the television unit. 
9.	A benefit book was also discovered in the appellant’s house.  Again, it was not in dispute that benefit books were frequently used by people by way of security when they could not pay for the drugs which they had bought, the books being left with the dealer as a deposit until next pay day.  The benefit book was found in a locked cashbox on the coffee table in the lounge. 
10.	At interview, the appellant agreed that the ‘wrap’ discovered on Joan Dixon was similar to the two discovered in his television remote control.  He refused to comment when he was questioned concerning the short amount of time that Joan Dixon had spent in the house on 29 September 1999, although it was later to be his evidence that she had called and had a conversation about some puppies. 
11.	In evidence the appellant stated that he was not the tenant of 28, Seven Street, the tenant being Justin Doyle with whom he had been staying for some two and a half months.  He said that other people would also stay the night at the house which had a back door which people could use if they were coming to the house from the Metro link.  He admitted he had been in possession of two ‘wraps’ of heroin and that he had himself been a heroin addict for seven years.  He said he injected heroin and would inject two bags of heroin a day spending £100-£140 a week on drugs.  He received £70 a week and gave £20 a week to Doyle for food.  He stated that he funded his habit by shoplifting coffee and soap powder which he would then sell on to buy drugs.  
12.	The appellant accepted that the visitors whom the police had seen entering the premises did so, and that he had been present on most of the occasions when they came to the house.  He accepted he had answered the door to them on a couple of occasions.  He said he injected himself whilst he was in the house and that other people would also take drugs in the house.  He said both his and Doyle’s friends used heroin and cannabis.  He stated that nearly all the people who had come to the house were on heroin, but denied that he had supplied it to anyone.  He refused to name his own supplier.  
13.	The appellant denied knowing Joan Dixon or that he had supplied drugs to her.  He accepted that he had let her into the house when he was on his own.  She told him she had met Doyle at the shops and Doyle had told her that she could have one of the puppies in the house.  He said the puppies had not allowed Dixon near them; consequently she had been told to return a week later when they would have been weaned from their mother.  He said a number of other people had visited the house to enquire about the puppies and that a man called Sean Crawshaw had visited the house and used the bath and left.  He said he had hidden his own heroin in the television remote control because he had not wanted any visitors to steal it.  He denied owning the foil, stating that he used a syringe to take his heroin.  He admitted that a metal spoon (not the McDonalds’ spoon) found on the premises was his and explained that he used it to prepare heroin prior to injection.  He denied knowing anything about the McDonalds spoon.  He said that, when the police entered the house, he had not had any money on him.  He said Doyle used 15-20 bags of heroin a day.  He said that he had answered ‘no comment’ to various parts of his police interview on the advice of his solicitor.  
14.	In cross-examination, the appellant said that he made £10-£15 day shoplifting.  He would fill up a sports bag with goods and sell them half price at different houses.  He had said ‘no comment’ during interview when asked where he found the money to fund his drug habit because he had not wanted to incriminate himself.  He said he did not know where Doyle got the money from in order to fund his own habit.  He knew that Doyle had previous convictions for dealing in heroin, but he would not say whether he knew that Doyle dealt in heroin.  Nor would he say whether Doyle supplied him with drugs.  He said he had bought his two ‘wraps’ of heroin on the morning of the search and had part used one.  He had been hiding his wraps in the television remote control for four or five weeks, but admitted that, when he went out of the house, he would leave the wraps at home.  He denied seeing the McDonalds spoon before, but said he knew that it could be used for measuring heroin.  He said that all sixteen people who had visited the house on the 28 September had not gone to buy drugs but to talk to himself or Doyle and see the puppies.  He did not know any of the visitors who had stayed in the house for a short period of time.  He said he had found the benefit book which he had placed in the cash box, putting the key to the box into a jar which only he and Doyle knew about.  He knew the woman whose benefit book it was, but did not know how to contact her because the address in the book was that of her parents and she did not live with them.  He knew that the woman concerned was herself a heroin user but he did not know where she got her heroin.  He denied that he had supplied Dixon with drugs.
15.	There was an objection by the defence to the admission of evidence about the McDonalds spoon, its use by dealers and the fact that such spoons had ceased to be supplied some two years earlier  The judge ruled as follows:
“.. it seems to me that the kernel which I have identified [i.e. the fact that the spoon could be used for drug dealing] is admissible, is relevant and the only substantive counter argument which Mr Fryman has advanced in relation to that relates to the jury drawing adverse inferences with regard to the fact that they may speculate that the defendant has been dealing in drugs since 1998 and has retained possession of it since that date and, if that were right, that would have an adverse affect on the fairness of these proceedings.  But I think that Mr Fryman’s concerns can be met by a strong direction on my part to the jury to deal with the counts on the indictment [on which] he is charged on the evidence before them, and there will be a proper direction in relation to them not speculating in relation to what has happened over the period of time concerned.  I will give the jury a clear basis on how they should approach this particular aspect and to meet the concerns which have been advanced by Fryman.”
16.	Counsel for the appellant also submitted that the observations on the appellant’s house made by the police on 28 and 29 September 1999 should be ruled out because they were not relevant to the charges which the appellant faced, alternatively that they should be excluded under s.78 of the Police and Criminal Evidence Act.  The judge ruled that the circumstances of the observation i.e. the frequent visits by people for a short period of time, was relevant evidence from which a jury could draw the inference that they had gone there for the purpose of acquiring drugs from the appellant.  The judge said:
“It seems to me that the issue on Count 2, the defendant having pleaded guilty to possession of the diamorphine, is whether he had that with intent to supply it to others i.e. a future state of affairs.  In my judgment, the circumstances of the observation – the frequent visits by people for short periods of time – is evidence on which the jury can draw the inference that they had acquired drugs from this defendant.  It is not the strongest of evidence because … there is no additional evidence to show that drugs were actually transmitted from the defendant to these other people, but it is some evidence – not as strong as it might be – that took place and the question is, is that relevant to show his intention on this particular day …  In my judgment, [it is] relevant to the issue as to whether the drugs, which he admitted being in possession of, he was in possession of with intent to supply to other people and, accordingly, I am going to allow the Crown to admit evidence of observations on 28th and 29th as being relevant.
17.	With regard to the question of fairness under s.78 of PACE the judge said:
“I bear in mind the points that Mr Fryman has made, his client will be in a position to deal with the people who have attended to explain why they may have been attending him so frequently on those occasions.  It seems to me that the view I come to is, having regard to all the circumstances [and] having regard to the provisions of s.78, the Crown have satisfied me that he adverse effect of the admission of this evidence … on the fairness of the proceedings are such that I ought not to admit it and, accordingly, I would allow the Crown to introduce that particular evidence.”
18.	The first ground of appeal is that the judge erred in admitting before the jury the evidence of the observations, whether in whole or in part, on the house over two days (apart from Dixon going to and from the address).
19.	While counsel for the appellant acknowledges that observation evidence of this kind is frequently sought to be introduced in dealing cases, he submits that, bearing in mind its prejudicial effect, it should only be introduced in cases where a substantial link is demonstrated to the defendant or the drugs involved.  Here it is protested that there was no evidence called that any of the visitors were users of drugs or caught with drugs, apart from Dixon, or that they had been directly observed making exchanges of any type.  The house was rented in the name of Doyle and there was access to the back of the house which was unobserved.  In summary it was an ‘open house’ where, if dealing had been taking place, it was not sufficiently connected to the appellant and it was not fair to require him to deal with it in evidence.  Finally, it is submitted, if the judge was correct to allow the observations to go before the jury, he should have made his views clear to the jury, as he had stated on the voir dire, that it was not the strongest of evidence, giving his reasons why.  
20.	Having considered the evidence and the summing-up, we do not consider that this ground of appeal has been made out.  The intensity of the visits for a short period of one or two minutes on the day before the arrest of the appellant was plainly evidence from which an inference that dealing was going on at the property could have been drawn, particularly in the light of the signal given when the police van was present in the street.  Although the defence suggested that Justin Doyle, the owner of the house, might equally have been dealing drugs, the visits largely occurred when he was away from the house and, specifically on one occasion, shortly after Doyle had left the house.  Further, on the occasion when the appellant had left the property, another visitor arrived and awaited his return.  The appellant in fact had no difficulty in giving evidence in relation to the visits.  It is not suggested he was at any concrete disadvantage in having to do so.
21.	Having given a comprehensive review of the evidence, the judge instructed the jury:
“The questions you might want to ask yourself about those comings and goings are, first of all, are we sure that drug dealing (the supplying of drugs) was going on on that particular day and remember, of course, that the defendant said he will not say what was going on.  He did not deal with drugs, but he will not say what was going on when that was put to him when he was being cross-examined.  But that is not enough, Members of the Jury.  If you are sure (Yes, drugs were being supplied on the previous day) that is not enough.  You have to go on and ask yourself a second question and that is this; are we sure this defendant was supplying drugs on that day?  If you are not sure of that, you ignore the evidence relating to the comings and goings on the previous day.  But if you are sure that he was involved in the supply of drugs on the 28th, then that is some evidence that that is what he would be doing on the 29th with the two wraps that he admits being in possession of.”
22.	We consider that was a fair direction.  The case was not a long one.  All such weaknesses as there were in the evidence had been fully rehearsed before the jury by counsel for the defence, and the strength or weakness of the evidence was essentially a matter for the jury.  Accordingly, we reject this ground of appeal.  
23.	The second ground of appeal is that the judge erred in admitting before the jury evidence of when McDonalds’ spoons in general were taken out of circulation at McDonalds’ restaurants.  While it has been conceded that the Crown was entitled to adduce evidence that McDonalds’ spoons could be used by dealers to measure 0.1g doses, as indeed the appellant conceded in evidence, it is submitted that the judge was in error to permit WPC Meeks to give evidence that the spoons had been out of circulation for some two years.  It is objected that such evidence was unduly prejudicial in that it might have led the jury to infer that the spoon had been retained in the house for the purpose of drug dealing over that period.  Again, we do not consider that there is anything of substance in this ground of appeal.  It was conceded by the defendant that, although he took the drugs by injection, other people would take drugs in the house, both his and Doyle’s friends using heroin (and occasionally cannabis).  As to the day in question, he denied knowing anything about the McDonalds’ spoon or having seen it before; however, he said that he knew that it could be used for measuring heroin.  In summing-up, the judge expressly directed the jury not to speculate about how long the spoon might have been in the house.  He stated that that was irrelevant, the jury being concerned only with the events of 29th September.
24.	The next ground of appeal is that the judge over-stressed certain prosecution points, alternatively that he made points which had not been made by the Crown in two particular respects.  The first arose in this way.  The prosecution relied upon the fact that Dixon and Hodgson were in possession of two similarly packaged drugs of similar chemical makeup or signature.  So far as the chemical signature was concerned, defence counsel had suggested in his final speech that the North-West might have been flooded with that particular type of heroin.  In his summing-up, the judge informed the jury that the submission constituted a “classic case of speculation because there is no evidence about batches of heroin of this make up in the North-West … we do not know, there is no evidence”.  In our view the judge was correct in what he said.
25.	The second matter of which complaint is made is that the judge gave the jury a detailed speculative account as to why the police might not have found the money in the house upon searching it after the alleged cash deal with Dixon.  The position is that the judge, having emphasised that the matter was one to which the jury must give very careful thought, said this:
“You are going to have to decide is there an explanation or not, does it point to the fact that she cannot have got this heroin from the defendant or it may be that she got it elsewhere.  What the Crown can only say about this is clearly the money must have been hidden and the police never found it and, of course, what the defendant says, “we have got experienced police officers here, how could they not find the ten pounds?”
26.	The judge went on to observe that, while the premises were searched:
“… it was not the search that happened down in Bristol to Mr West’s house when they demolished walls and took up floorboards (nothing of that sort) but still the money was not found.”
27.	He went on to make the point that the police appeared to have missed or ignored citric acid which the defendant had said was on the table by his side and a number of syringes which he said were on the premises.  The judge directed the jury to consider whether, in fact, those items were available to be found but were missed or whether they had been hidden carefully somewhere where the police missed them.  Again, it seems to us that those were questions which properly arose for the consideration of the jury and the judge was entitled to raise them in his summing-up.  The reference to the West trial was unnecessary, but it cannot seriously be suggested it was prejudicial rather than illustrative.
28.	Finally, it is complained that the judge failed to stress adequately, or at all, certain points for the defence, in particular to the following effect.  It is complained that the judge failed to remind the jury of the appellant’s assertion that his source of income was £10-£15 per day made from shoplifting, his practice being to fill up a sports bag with goods and then sell them at half price at different houses.  It is submitted that the jury should have been directed that, if correct, that fact supported the defence case that the appellant enjoyed a relatively ‘innocent’ source of income to fund his drug habit.  In further connection with this aspect of the defence, it is complained that the judge did not give a strong and positive direction to the jury that the appellant’s failure to mention his shoplifting activities when questioned at interview was, or might reasonably have been, attributable to a desire not to incriminate himself on matters for which he was not being interviewed.  This overlaps with the more general complaint that the judge failed to direct the jury in positive terms that the refusal of the defendant to answer questions at interview was based upon the advice of his solicitor, which the jury might consider was reasonable in the circumstances.  
29.	We have considered this ground carefully, but again we do not think that it has substance.  When dealing with this aspect of the case, the judge said as follows:
“The second thing that the defendant relies on is that, given that he has a drug habit which he has to generate the funds to pay and that from the benefit, he being unemployed, that he has and paying for rent and his own food, etc, clearly would not support that, he says that he went shoplifting to give him the money to support that habit.  Again, it is common ground, when he was interviewed about his sources of money, he made no comment; he did not tell that explanation to the police ….  What the prosecution say is in the circumstances, having regard to that warning [i.e. the caution at interview], if those facts were true – if in fact he had been charged with shoplifting to support his heroin habit … that he could reasonably have been expected to mention that when he was being interviewed and the fact that he did not mention it may give you grounds to conclude, either that those acts have been invented to fit the prosecution case, or that, at the time he was interviewed, the defendant believed that those facts then would not actually stand up to scrutiny.  Given that the defendant did fail to mention those facts when questioned it is for you to decide whether in the circumstances … those facts were something that he could reasonably been expected to mention at the time.  If it was something that he could reasonably have been expected to have mentioned, then the law is that you may draw such inferences as appear proper from his failure to do that.  But, Members of the Jury, failure to mention either or both of those facts cannot, of itself alone, prove the defendant’s guilt.  But if you are sure, quite apart from those two failures, that there is the case for him to meet, it is something which you are entitled to take into account when deciding whether his evidence about these matters is true, that is you can take it into account as something additional to support the prosecution’s case.  You are not bound to do so, but it is for you to decide whether it is fair to do so.  ….  Mr Fryman, on behalf of the defendant, invites you not to hold those failures to mention those facts against the defendant and he relies on the fact that the defendant has told you, first of all, that he was advised by his solicitor to only answer questions about his own use of drugs and to say ‘no comment’ on anything relating to the supply of drugs, and you will have to consider how that squares with what he, in fact, did say in the course of interview.  Members of the Jury, if you think that that reason being put forward does amount to a reason why you should not hold his failure to mention them against him, then do not do so but, on the other hand, if in your judgment, it does not provide an adequate explanation and you are sure that the real reason for his failure to mention those facts was that he then had no innocent explanation to offer, then you can hold those failures against the defendant.”
30.	In the light of that direction, we reject the criticisms advanced on this appeal.  The complaint is simply, as it appears to us, that the judge did not take the opportunity to direct the jury in more positive terms as to the entitlement or reasonableness of a defendant relying upon the advice of his solicitor as to whether or not to answer questions at interview.  That is really a matter for the discretion of the judge, provided that he sums-up substantially in accordance with the forms of direction laid down in the Crown Court Bench Book.  In our view, the judge in this case did so and the summing up was not deficient in the overall circumstances of this case.
31.	Finally, we would observe that, in our view, the case against the appellant was a strong one.  On Count 1, the heroin found on Dixon matched the two ‘wraps’ found in Hodgson’s possession, both in relation to substance and wrapping.  Dixon was stopped, searched and found to have a ‘wrap’ of heroin immediately upon leaving the house in which the appellant was.  Further, the appellant failed to mention at interview what, at his trial, he stated was the true reason for Dixon’s visit, namely to see some puppies.  Again, on Count 2, there was strong observation evidence of persons calling at the house on 28/29 September.  Not only was heroin found concealed in the television remote control, but also two rolls of foil and a benefit book in the name of a woman living in Doncaster.  The income of the appellant was £70 a week.  Benefits were patently insufficient to enable him to finance his own admitted addiction to heroin and, again, at interview, the appellant did not divulge the source of his income.  We are satisfied that the convictions were safe and we dismiss the appeal.