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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 >> Grant, R v [2011] EWCA Crim 44 (20 January 2011) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2011/44.html Cite as: [2011] EWCA Crim 44

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Thursday, 20 January 2011

1. THE VICE PRESIDENT: This appellant was tried for possession of cannabis with intent to supply. He had been the front seat passenger in a vehicle stopped by the police in the early hours of the morning, one of three people in the car. The driver had nothing incriminating on him. The appellant had at his feet a rucksack which he admitted was his. It contained a plastic packet with about 18 or 19 grams of cannabis in it, digital hand scales, a further quantity of about 1.8 grams of cannabis, a condom box containing 34 empty self-seal bags, some cigarette papers and a rolling machine. The rear seat passenger had a sum of money and quantities of cannabis totalling about 11 or 12 grams on him. As things turned out, the rear seat passenger was dealt with separately by way of caution and the appellant stood trial on his own. He admitted the possession but disputed the intent to supply. His case was that the quantity of cannabis found was for his personal use. It was quite a lot, but he said he was a heavy user. There were a lot of bags but he said that he had those so that he could separate out his private reserves and not be carrying large quantities around. He made it a significant part of his case that the bags were empty and had not been charged with potential dealing supplies. That was important to him because he had a previous conviction for possession of a larger quantity of skunk cannabis, scales and other paraphernalia including bags.
2. After the jury had been in retirement for about two hours or a little more, it asked to see the exhibits. Inadvertently and through oversight, when the exhibits were taken to them what was taken was a box containing everything that had been found in the car or at the rear seat passenger's home. What seems to have happened is that everything found had been brought to court -- that of course was the right procedure because questions might arise in the trial over what was in the possession of others. But in fact they had not. The jury had only been shown at the trial the exhibits attributable to Grant and not to the man in the back of the car. But sometime whilst the jury was out the exhibits had all been put in the same box and that was the box which was sent through to them in retirement without anybody realising the danger. What they thus got were two further bags containing the same sort of cannabis and a larger plastic bag containing 11 grams. They also got a large number of self-seal bags, if anything rather more than the 34 that were properly attributable to Grant.
3. This all happened, as we understand it, over the midday adjournment. Counsel learned what had happened quite soon afterwards and was in a position to draw it to the attention of the judge, but by then the jury had signalled that it had reached a verdict. That created a difficult position for counsel and for the Recorder with which we sympathise. It had arisen entirely unexpectedly and through no fault of any of them, though it underlines the importance of procedures being in place at all Crown Courts to ensure that when a jury asks to see exhibits careful consideration is given to what they get.
4. The Recorder's decision was that he ought to preserve the right of the jury to acquit - in other words not deprive the defendant of the possible benefit of that, should that be their verdict. In that, if we may say so, he was plainly correct. He indicated that should there not be an acquittal there would clearly be grounds for appeal and he would certify them. On that basis the jury was permitted to return the verdict that it did. It was a verdict of conviction and as a result of that the appeal is now before us.
5. We observe that perhaps understandably no one considered what with the benefit of hindsight could and should have been considered. This jury knew that there had been another man in the back of the car and it had been put in evidence that he had some cannabis in his possession. In those circumstances, consideration could and should have been given to the possibility of not taking the jury's verdict but instead explaining to them the mistake that had been made. The jury could have been told in effect that no one could know what had led to their current potential verdict, but that if the exhibits which were nothing to do with Grant had entered their thinking then they had better go away and think again. That might on the facts of this case, but we emphasise by no means on the facts of every similar case, have been an appropriate way of dealing with it. We understand why, without the benefit of time to reflect, it was not in fact done.
6. The question for us is much simpler: is this verdict safe? The answer is clearly "No". It is not safe because the jury saw a larger quantity of cannabis and a much larger quantity of self-seal bags than were properly attributable to the defendant and, moreover, in the face of his having made it a part of his case that his bags were empty, they saw some other bags which were not. The Crown responsibly accepts that the conviction cannot in those circumstances be sustained. We agree. We allow the appeal and we quash the conviction. Is there any consequential application?
7. MR GIOSERANO: Retrial.
8. THE VICE PRESIDENT: Mr Mairs?
9. MR MAIRS: Sadly I cannot think of any fruitful grounds to oppose that.
10. THE VICE PRESIDENT: No, he is entitled to be tried properly but he ought to be tried. We have thought about that and we agree.
11. We direct that a fresh indictment be served. There is to be a retrial on the same single count that he faced. He is to be arraigned on that indictment within two months, unless this court directs otherwise. There is no reason why it should not be at Leeds. It will be at Leeds unless the Presiding Judges of the North Eastern Circuit direct otherwise. In the mean time, where is he?
12. MR MAIRS: He was on unconditional bail, I think, throughout.
13. THE VICE PRESIDENT: Unconditional?
14. MR MAIRS: Yes, my Lord.
15. THE VICE PRESIDENT: Mr Gioserano? There is no reason why he should not be on bail again, is there?
16. MR GIOSERANO: My Lord, no, of course not.
17. THE VICE PRESIDENT: We grant him bail, subject of course to anything which may cause the Crown Court subsequently to vary that order, but in the meantime he may remain on unconditional bail, as he was before the trial. Can you supply an address to the court please Mr Mairs.
18. MR MAIRS: I will, yes.
19. THE VICE PRESIDENT: Any application for a representation order must be made to Highbury Corner Magistrates' Court.