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Criminal evidence and procedure – Evidence – Hearsay – Expert evidence – Admissibility: R v Hodges and another COURT OF APPEAL (CRIMINAL DIVISION)(United Kingdom)

[2003] EWCA Crim 290, [2003] Crim LR 472, (Transcript: Smith Bernal)

R v Hodges and another
COURT OF APPEAL (CRIMINAL DIVISION)
[2003] EWCA Crim 290, [2003] Crim LR 472, (Transcript: Smith Bernal)
HEARING-DATES: 22 JANUARY 2003
22 JANUARY 2003
CATCHWORDS:
Criminal evidence and procedure – Evidence – Hearsay – Expert evidence – Admissibility.

COUNSEL:
R Grey for the First Appellant; L Wilding for the Second Appellant

S Foster for the Respondent

PANEL: ROSE LJ (V-P), AIKENS, ROYCE JJ

JUDGMENTBY-1: ROSE LJ (V-P)

JUDGMENT-1:
ROSE LJ (V-P) (reading the judgment of the court): [1] On 31 January 2002, after a trial which, astonishingly, lasted 18 days, at Portsmouth Crown Court, these appellants were convicted of conspiracy to supply heroin to others, on count 1 in the indictment. Walker also pleaded guilty to possession of cannabis and to possession of heroin, on counts 2 and 3. On 1 March 2002, they were sentenced by Mr Recorder Mather, by whom the trial had been conducted, in the case of Hodges, to 5 years and in the case of Walker to 6 years’ imprisonment on count 1. Walker was also sentenced on count 2 to 1 weeks’ imprisonment and on count 3, to 2 months’ imprisonment concurrently. They now appeal against conviction by leave of the Single Judge.

[2] The appellants were arrested together in Portsmouth on 6 September 2000, after observations had been kept by the police on Walker’s address in Outram Road, Southsea, on at least nine days between the middle of August and 6 September. The appellants had been observed outside Walker’s house and on nearby streets. The effect of the observation evidence was that, either separately or, sometimes, together, the appellants had had numerous short meetings with a variety of people. Those meetings involved hand contact between the appellants and others which was not, according to the police officers, either in the form of handshakes or, as was suggested, in the form of high, medium or low fives. There was no evidence from the officers that they actually saw drugs being passed.

[3] When Walker was arrested, he had £ 350 on him and a bag containing heroin. He claimed that there were 10 grammes inside. In fact there were 14 grammes, that is half an ounce. He said that it was for his personal use.

[4] Hodges had £ 80 on him. When Walker’s house was searched, there was found a set of scales, with traces of heroin on them, some pieces of plastic bag, metal foil and about one cigarette’s worth of cannabis.

[5] At a first trial the judge, sadly, suddenly died. So the appellants were convicted on a second trial.

[6] The prosecution case against the appellants was based on the manual contacts to which we have referred, the drugs and money found on Walker, expert evidence from Detective Constable Stevens, to which we shall return and, so far as Hodge was concerned, statements which he had made in the course of interview.

[7] The defence of both appellants was that they were not dealers. The manual contacts were merely handshakes or gestures of friendship to acquaintances. It was said on their behalf that the drugs found on Walker were for the personal use of both Walker and Hughes, over the coming week or so. It was said that the expert evidence of Detective Constable Stevens was without foundation, and evidence was given by the defendants which, in part at least, contradicted what Detective Constable Stevens said.

[8] On the tenth day of the trial, during the evidence from the witness-box of Hodge, one of the members of the jury apparently fell asleep. In consequence, the following day, she was discharged from the jury. There was a report of that discharge in a local evening newspaper and, on the day after that, there were further reports of that in national newspapers. By reason of these events, applications were made by the defence, first, that the whole of the jury should be discharged and not just the one juror. Next, in the light of the local newspapers report, that the jury should be discharged. And, finally, following the items in the national newspapers that the whole jury should be discharged. The learned Recorder, as is implicit in the history already recounted, rejected those submissions.

[9] There were two main issues of fact for the jury. First: were drugs being transferred during the manual contacts observed by the police? Secondly: were the drugs found on Walker merely for his and Hodges’ personal use, or were they intended for commercial distribution?

[10] This appeal raises two grounds. First, on behalf of Hodges, Mr Grey, in submissions adopted by Miss Wilding on behalf of Walker, submits that the evidence of Detective Constable Stevens was wrongly admitted by the Recorder, in so far as it dealt with three different matters: first, as to what was the usual method of supplying heroin, namely, in a £ 20 bag; secondly, as to the purchase price of heroin in Portsmouth at the time; and, thirdly, that 14 grammes was more than would have been for personal use alone.

[11] In advancing those submissions Mr Grey, rightly, drew attention to certain authorities. In R v Bryan, (unreported, Court of Appeal (Criminal Division) transcript of 8 November 1984) evidence had been called, in the course of a trial of the appellant for possessing cannabis with intent to supply, that the quantity of cannabis found in his possession was too much for personal use and, in the course of this court’s judgment, as appears from para 3E of the transcript, this was said:

“The point taken is that one of the police officers, as indicated in the summing-up at page 15F, had given some evidence about the quantity of cannabis and the cost of a deal on the street. Apparently he was a man who had some two years’ experience in the drugs squad and was described by the learned Recorder thus: ‘In the course of that time he has gained considerable knowledge of the street drug trade. He said that the usual quantity of cannabis pushed in a street deal (for one deal) is about one to two grams, and this costs about £ 5 for a deal.’ It is said that that evidence was hearsay and that, even if it was as to fact, the police officer was not enough of an expert to give that evidence. Indeed it was not a field of expertise which was recognised and therefore that evidence should not have been admitted and that it was unfair because it was not rebuttable. The view of this court is that police officers with their experience of dealing with these problems, being on the streets and with their knowledge and meeting with those having a drug problem and those pushing the drugs, have a very wide experience and can give evidence of fact of what takes place on many occasions on the streets.”

The court went on to hold that the evidence had been properly admitted.

[12] Mr Grey accepts that, following that decision, for very many years, it has been common in Crown Courts for evidence to be given by police officers, in relation to, in particular, the street value of elicit drugs. But, he submits, the position is now changed by reason of a decision of a differently constituted division of this Court in R v Edwards (unreported, [2001] EWCA Crim 2185, Court of Appeal transcript dated 19 October 2001). That was a case in which the Court upheld the trial Recorder’s decision to exclude evidence proffered on behalf of the prosecution and the defence, when the allegation related to the possession of Ecstasy with intent to supply. It was said, in the course of the judgment, that the material on which the two proffered witnesses relied was “classic hearsay”. Mr Grey submits that, notwithstanding that Bryan was not referred to in Edwards, Edwards should have been followed by the Recorder at trial in the present case and should, indeed, be followed by this court. Therefore, he submits, the evidence of Detective Constable Stevens ought not to have been admitted in the present case.

[13] In support of that submission, he relied upon a ruling given by His Honour Judge Burford QC, in R v Stebbing (1992) 14 Cr App Rep (S) 68 at Southampton Crown Court (transcript of 17 September 2002). In the course of that ruling, the learned judge concluded that he should follow Edwards, it being a more recent decision than Bryan, and he quoted from a judgment of Kerr LJ in Abadom 76 Cr App R 48. It is pertinent to rehearse the citation starting at p 53 in Kerr LJ’s judgment, which is set out from p 9C of the transcript of Judge Burford’s ruling:

“It seems to us that the process of taking account of information stemming from the work of others in the same field is an essential ingredient of the nature of expert evidence. So far as the authorities are concerned, the position can be summarised as follows. First, where an expert relies on the existence or non-existence of some fact which is basic to the question on which he is asked to express his opinion, that fact must be proved by admissible evidence. Secondly, where the existence or non-existence of some fact is in issue, a report made by an expert who is not called by a witness is not admissible as evidence of that fact merely by the production of the report, even though it was made by an expert. These, however, are, in our judgment, the limits of the hearsay rule in relation to evidence of opinion given by experts, both in principle and on the authorities. In other respects their evidence is not subject to the rule against hearsay in the same way as that of witnesses of fact. Once the primary facts on which their opinion is based have been proved by admissible evidence, they are entitled to draw on the work of others as part of the process of arriving at their conclusion . . . It does not seem to us in relation to the reliability of opinion evidence given by experts that they must necessarily limit themselves to drawing on material which has been published in some form. Part of their experience and expertise may well lie in their knowledge of unpublished material and in their evaluation of it.”

Judge Burford then goes onto at 10B of the transcript:

“There is nothing in my judgment in Abadom which is contrary to what was said in Edwards. What Abadom says, and what Edwards reinforces, is that the primary facts must be proved by first-hand evidence but that an expert, those facts having been proved, may then in the exercise of his expertise use other material, whether published or unpublished, in order to form his expert conclusion.”

[14] In the case of Stebbing, Judge Burford ruled inadmissible evidence tendered from a police officer, by no means as experienced as Detective Constable Stevens, and he did so having reviewed the authorities. His judgment also includes this passage at p 19, which we are told has been, to some extent, relied upon in adjacent Crown Courts. It is in these terms:

“What must be done, in my judgment, in order for the prosecution to prove the price of a particular drug on the street is for the officer collating information to set out in a systematic form his sources of those primary facts. He must set out how many undercover officers he has received first-hand evidence from about prices and what the prices are that they have told him. He must set out how many tape recordings of actual deals he has listened to and what the prices disclosed on those tape recordings have been. He must set out how much of his information is from consumer informants and what they have said. He must set out how much of his information is from seller informants and from what they have said, and he must set out which information he has disregarded, either because he has not believed it or because he regards it as a one-off transaction.”

[15] In adopting Mr Grey’s submissions, Miss Wilding, on behalf of Walker, added that her primary objection was to the evidence given by Detective Constable Stevens as to the 14 grammes being more than would have been used personally.

[16] On behalf of the Crown, Mr Foster submits that the learned Recorder was right, having heard evidence on the voir dire from Detective Constable Stevens, to rule that expert evidence could properly be received from him, and to permit the evidence to be called to which we have referred. Mr Foster relies on a passage in the judgment of Chief Justice King, in Bonython [1984] 38 SASR 45, the principal judgment delivered in that case by the South Australia Supreme Court. The learned judge said that, in deciding whether a witness is competent to give evidence there are two questions for judges to decide:

“The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This may be divided into two parts (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court.”

[17] Mr Foster sought to distinguish Edwards from the present case and relies, unsurprisingly, upon Bryan. He submits that the jury were entitled to hear evidence on all three matters to which, on behalf of the appellants, exception is taken.

[18] In the present case, he submitted that the relevant primary facts, in relation to which Detective Constable Stevens’ expert evidence was pertinent, was that a 14 gramme bag had been found in the possession of one of the appellants; that observations had been kept over a period of time by police officers on both these appellants, and that there had also been found the scales and other paraphernalia to which we have referred.

[19] The separate ground advanced by Miss Wilding, on behalf of Walker, relates to the Recorder’s refusal to discharge the entire jury initially and his second and third refusals to discharge the jury, following the publication of the articles first in the local newspaper and then in the national newspapers.

[20] The submission which is made by Miss Wilding is that the Recorder failed to give sufficient weight to the risk of prejudice or injustice caused by the press coverage. He was furthermore wrong to conclude that the directions which he gave to the jury, albeit that he said all that could have been said by way of directing the jury to disregard the press reports, were incapable of being sufficient to eliminate the risk of prejudice to the appellant, Walker, in particular, from the press reports. At least one of the reports had referred to the appellants as being heroin dealers. There had been a reference to lawyers arguing about abandonment of the trial and the cost of the trial being some £ 96,000. There had been reference to a defence lawyer complaining about the sleeping juror and to the fact that the juror, immediately before she was discharged, declared unequivocally that she was bored by the proceedings, no doubt by way of explanation as to why she had undoubtedly fallen asleep. There was reference in the newspaper reports, or one of them at least, to her having been “kicked off the case” after a complaint by a defence lawyer, and it was said in the same article that lawyers had tried to “scrap the trial.”

[21] Miss Wilding accepted that the Recorder was right in identifying a number of respects in which the press reporting was inaccurate. But, she submitted, the Recorder, in deciding whether to discharge the jury, gave undue weight to the inaccuracy of the reports.

[22] Reference was made by her to McCann 92 Cr App Rep 239, where the Court of Appeal quashed convictions, after the trial judge had declined to discharge the jury, following highly pertinent and potentially prejudicial remarks by a senior judge and a senior politician, to which wide coverage had been given on the television, which directly bore on an aspect of high materiality in relation to the defendants, namely their failure to give evidence before the jury.

[23] Miss Wilding relied on that authority as showing that it is not always possible to remedy potential prejudice to a jury from media comment by a firm and clear judicial direction. That, she submitted, is particularly so where as in the present case, the matters reported referred to what had taken place in the absence of the jury. The Recorder, she submitted, was too readily satisfied that the impact of the articles was lessoned by their inaccuracy, and he too readily accepted that the jury would not be affected by them.

[24] Mr Foster, on behalf of the Crown, submitted that the appellant’s submission on this ground rested on the proposition that the jurors were told more than they should have been about what had happened in their absence. But he drew attention to the fact that, in due course, the jury deliberated about the guilt or otherwise of these appellants for a period in excess of eight hours, during which they asked pertinent questions about details of the evidence. He submitted that this reinforces his proposition that there was no sign of lack of impartiality, or lack of conscientiousness on the part of the jury. He distinguished McCann, particularly having regard to the fact that, in that case, the trial judge had not seen the television coverage about which complaint was made at the time when he exercised his discretion.

[25] In the present case, on the other hand, the Recorder, submits Mr Foster, was in possession of all the relevant material. Miss Wilding accepts that, in the course of his ruling, the learned Recorder accurately rehearsed the contents of the offending articles.

[26] In turning to our conclusions in relation to these two grounds, it is convenient, first, so far as the challenge to the admissibility of Detective Constable Stevens’ evidence is concerned, to rehearse, as appears from the Recorder’s ruling on 21 January 2002, p 5A, the evidence which the Recorder heard about the officer’s experience:

“Mr Stevens is a drugs officer, not of two [I interpolate that was a reference to the officer in Bryan] but of sixteen or seventeen years’ experience. He told me that for the last sixteen months he has worked as drugs liaison officer for Portsmouth. He has in the past worked undercover and one thing which he does presently do is that he sees every forensic science service drugs report which comes into the Portsmouth Division of the Hampshire Constabulary. He also said during the course of the voir dire that his knowledge of drugs matters comes from training videos, it comes from carrying out observation, speaking both to prisoners and informants, and he obviously works closely with colleagues and has been on a Home Office approved drugs investigation course, albeit some little time ago . . .

As to his knowledge of prices, he gets that from talking both to those who buy and sell and to police officers. He says that he has kept details of prices in this area for over the last twelve years. He says that so far as the kinds of bags are concerned, he knows this from seizures which are made and the bags which are taken in by the police. He has had bags made for him. He said that it was done because he wanted to use one in a lecture that he had to give and he watched it done.

As for the transference and the method of doing it, he says that he has obtained that evidence from observations. He has spoken to those who purchase heroin, and I would remind everybody that he says that he speaks to informants as well as those who have been arrested.”

Then at 6E:

“. . . Mr Stevens is a very experienced drugs officer and on the face of it more than competent to give the evidence that he sets out.”

That, of course, was a reference to the statement, served before the first trial in this case, and therefore a considerable time before the trial at which these appellants were convicted, which contained, among other material, the evidence to which exception is taken in the present appeal. The Recorder, at p 7, said this:

“Mr Stevens in this case has built up an enormous body of knowledge after a long career in the drugs investigation side of Hampshire Constabulary. That he cannot produce individual sources for his knowledge does not invalidate his evidence, in my opinion. He is the embodiment of much of the generally acquired knowledge over many years both of him personally and of the force in general. His experience in general is such, and his answers during the voir dire specifically such, that he satisfies me that he is qualified to be called as an expert on all the matters which he goes through in his statement, apart from those which have been excluded by agreement, notwithstanding that the evidence itself was hearsay and some of it opinion evidence.”

The learned Recorder, as is implicit in what we have said, took the view that he should follow Bryan not Edwards.

[27] In Edwards, the court upheld a ruling by the trial judge excluding evidence from potential witnesses, without medical or toxicological qualification, proffered to show the impact, in terms of developing tolerance or suffering serious harm, on a consumer of Ecstasy. The court did so on the basis that, absent such qualifications, what had been told to the proffered witnesses by drug dealers was classic hearsay which might or might not have been reliable. This case does not, in our judgment, bear on the issue in the present case, namely, whether this drugs officer of very many years’ experience could properly give evidence, derived in part from what he had been told by drug users, as to the street price of heroin and in relation to other matters which we have identified. It is to be noted, as we have said, that the authority of Bryan was not cited to the court in Edwards, still less could it, in consequence, be said to have been over ruled. Indeed, had it been relevant, it would plainly have been binding upon the court in Edwards. So far as the ruling by Judge Burford QC in Stebbing is concerned, it seems to us that the learned judge fell into error in three respects. First, in the passage which we have already cited from his ruling, immediately following the conclusion of his citations from the judgment of Kerr LJ, he misread impact of what Kerr LJ was saying, particularly in the last two sentences of the passages of his judgment which we have specifically rehearsed.

[28] Secondly, Judge Burford followed Edwards, notwithstanding that Bryan had not been cited to the court in that case, and in following Edwards (merely because it was the more recent decision), he fell into error because, as it seems to us, not only was Bryan not to be disregarded in the way that Judge Burford disregarded it, but Edwards was not a pertinent authority on the issue which arose in that case. We add that, in Edwards, had the court had the advantage of considering Kerr LJ’s comments in relation to expert witnesses and hearsay in Abadom, it might not have expressed itself in quite the terms it did.

[29] Thirdly, the matters allegedly identified by Judge Burford, at p 19 of his ruling, as primary facts, were not primary facts – they were sources of primary facts.

[30] In any event, as it seems to us, in the present case, the relevant primary facts were the observations carried out by police officers of the activities of the appellants, the finding of the 14 grammes of heroin in the possession of one of the appellants and the finding of the other paraphernalia in his house.

[31] In our judgment, the evidence of Detective Constable Stevens of facts and opinion was, in the light of his experience, properly admitted. It was the sort of evidence which the judgment of Kerr LJ, in the passage to which we have referred, embraced. He had, in his statement served on the defence given the categories of his sources of information and, of course, any witness who is tendered as an expert must do that. But that does not mean, as was submitted on behalf of the appellants, that it is necessary to call the various people to whom the witness has spoken, before the witness can give expert evidence based upon what they have said.

[32] Detective Constable Stevens’ evidence, accordingly was within the approach identified by Chief Justice King in Bonython. It was, furthermore, evidence which was capable of being challenged in cross-examination and by evidence called on behalf of the defence. No independent evidence other than that from the appellants themselves was called on behalf of the defence. The evidence of Detective Constable Stevens, in relation to value and quantities was unchallenged. Having regard to these matters the ground challenging admissibility of Detective Constable Stevens’ evidence fails.

[33] So far as the ground in relation to the failure to discharge the jury is concerned, it is accepted that the question of whether or not to discharge the jury was entirely one for the judge’s discretion. He had a balancing exercise to carry out. He rehearsed, in his three separate rulings, the matters which he took into consideration. They were relevant matters. None of them was irrelevant. All of them were accurately rehearsed. The weighing of them in the balancing exercise which it was incumbent upon the Recorder to carry out was a matter for him. It appears to us, having read the three separate rulings which we gave on this aspect of the matter, that he approached the question he had to decide conscientiously and fairly. In our judgment, no sustainable criticism of his refusal to discharge the whole jury is made out and, therefore, that ground also fails. These appeals must be dismissed.

DISPOSITION:
Appeals dismissed.

[2003] EWCA Crim 290, (Transcript: Smith Bernal)

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