Case No: 201403230 C2
Neutral Citation Number: [2015] EWCA Crim 1911
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WARWICK
Mr Recorder Raggatt QC
T20130670
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 08/12/2015
Before :

LORD JUSTICE McCOMBE
MR JUSTICE CRANSTON 
and
MR JUSTICE KERR 
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Between :

	ELIJAH CLIVE STOKES	Appellant	
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	REGINA	Respondent	

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Richard Murray (instructed by Askews Legal ) for the Appellant
Malcolm Morse (instructed by the CPS Appeals Unit) for the Respondent

Hearing dates : 20 November 2015
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Judgment
Lord Justice McCombe: 
1.	On 20 May 2014, in the Crown Court at Warwick before HHJ Parker, the appellant pleaded guilty to count 2 on the indictment in this case, an offence of Producing a Controlled Drug of Class B (cannabis). This offence related to premises at 1 Amy Close in Coventry.
2.	On 10 June 2014, in the same court, after a trial before Mr Recorder Raggatt QC and a jury, the appellant was convicted (by majority verdict of 11 to 1) on count 1 of the indictment, a further offence of Producing a Controlled Drug of Class B (again cannabis). This offence related to premises known as Whitehouse Farm at Ryton-on-Dunsmore in Warwickshire. He was acquitted on count 4, an offence of possession of a controlled drug of class A (cocaine) with intent to supply.
3.	On 11 June 2014, the appellant was sentenced, on count 1, to 7 years imprisonment, with no separate penalty being imposed in respect of count 2.
4.	There were two co-accused. Oshae Hunte (the appellant’s 17 year old nephew) was acquitted of the count 1 offence. Natalie Kennell pleaded guilty (on count 3) to Permitting Premises to be used for Producing a Controlled Drug of Class B (i.e. the premises at Amy Close, owned by her) and was convicted on count 4, possession of  a class A drug with intent to supply. This charge related to three bags of cocaine found in a freezer at the Amy Close premises. She was sentenced to 3 years imprisonment, reduced by this court on appeal on 13 May 2015 to 2 years 3 months.
5.	The appellant now appeals against conviction by leave of the Full Court (Lloyd Jones LJ, Spencer J and the Recorder of Cardiff) granted on 13 May 2015. That court adjourned his application for leave to appeal against sentence to the court hearing the conviction appeal. The conviction appeal and the adjourned sentence application came before us accordingly on 20 November 2015.
6.	The broad facts and the cases advanced by Crown and defence were as follows. On 3rd December 2013 police stopped a black Astra motor vehicle which the appellant was driving.  Hunte was in the passenger seat.  The vehicle contained items including plant food, silver ventilation ducting, a box of latex gloves and around £5,720 in cash.  They were both arrested on suspicion of producing a controlled drug.  The police conducted searches at a number of addresses.  Keys taken from the appellant’s trouser pocket were used to open the courtyard metal gate at Whitehouse Farm, Warwickshire.  He also had a key in his possession that opened Unit 18 at the farm.  Police there found an underground cannabis factory in the basement of Unit 18 which was accessed by a trapdoor concealed by tyres.  The factory had 257 cannabis plants in three rooms with a value of up to £215,000.  
7.	Amongst the other addresses searched by the police was 1 Amy Close, Coventry.  The property belonged to Kennell.  Keys seized from Stokes were used to open the front door.  In the rear upstairs bedroom was a large cannabis plant and 60 small cannabis plants.  They were all covered by a propagator and industrial lamps and ventilation had been set up.  A freezer bag contained three bags of cocaine each of different purity.  That freezer bag was found in the fridge of the premises.
8.	The prosecution case was that the appellant was involved in the production of cannabis at Whitehouse Farm, that he knew what was happening there and was engaged in the growing of plants and he had recruited Hunte to assist him.  The cannabis that was found at 1 Amy Close was used to cultivate the seedlings before they were transferred to the cannabis factory at Unit 18.  It was the prosecution case that the cocaine found at Amy Close belonged to the appellant and he had stored it in the freezer with the knowledge and permission of Kennell.  The cocaine was not for personal use and the appellant and Kennell intended to pass the drugs onto others.  
9.	Following evidence given by the appellant at trial (to which we return below) the Crown concluded that he had given a false impression of naivety about drugs and applied to adduce evidence of his conviction in the Coventry Juvenile Court in 2002, when he was 17 years old, for possession of Class A drugs – namely two small individual wraps of heroin and crack cocaine respectively for which he had been fined.  The judge acceded to the Crown’s application and convictions were admitted into evidence.  
10.	The defence case for the appellant, who gave evidence at the trial, was that although he had keys to Whitehouse Farm, he did not know the cannabis factory was there.  He had been connected to the premises for about 8 weeks prior to his arrest on 3rd December because he had assisted his friend, known as “Smiler”, with alcohol transactions and had met his friend, Simon Collings.  He helped Smiler unload some alcohol on the 1st December and kept the keys because he was going to go back the following day.  
11.	On 3rd December the appellant said he had been given £3,700 by Mr Collings as a refund for a van he had sold with a faulty gear box.  He said he had been given £1,500 as a deposit for a BMW vehicle he was interested in and had a further £500 for the purchase of a bed. 
12.	The appellant accepted that the cannabis plants found at 1 Amy Close belonged to him.  He said it was his own private venture and he was growing seedlings to sell them on.  He was not connected to Whitehouse Farm in any way.  
13.	There are four grounds of appeal against conviction, as advanced in the written grounds, upon which the Full Court granted leave to appeal. First, it is argued that the judge was wrong to admit the previous convictions into evidence. Secondly, and related to the first ground, it is said that the judge erred in his direction to the jury on that bad character evidence. Thirdly, certain errors in the factual summing-up by the judge are pointed out which, it is said, gave the jury an inaccurate and unbalanced view of the case. Fourthly, it is submitted that the judge was wrong to have given the jury the direction permitting them to return a majority verdict at the time when he did, having regard to the time for which the jury had been in retirement. This final ground was not pursued in oral submissions and we say no more about it.  We address the three remaining grounds in turn.
Bad Character
14.	Like the Full Court that granted leave to appeal we have a full transcript of the appellant’s evidence, which includes the passage that gave rise to the Crown application to adduce the evidence of the 2002 convictions. We also have the benefit (which the previous constitution of this court did not have) of a full transcript of the arguments of the advocates at the trial upon the application to admit the character evidence.
15.	The application had arisen in these circumstances.  The appellant’s previous convictions had not been admitted in evidence initially.  However, there came a point during his evidence in chief at which the appellant gave evidence as to how it came about that the nursery was established in the bedroom of his house in Amy Close.  He said that a few friends including Kennell had been having a drink at Amy Close when it came up in conversation.
16.	In fact during the course of this evidence he was interrupted at a number of points by the Recorder but the substance of what he said was that:
“... we were having a drink a few of us around.
RECORDER RAGGATT: Sorry.  Who is we?
DEFENDANT: Um, me, Natalie and a few friends.
Q. Having a drink where?
A. At 1 Amy Close... and then we were just talking, usual stuff, and it came up in conversation.
Q. Cloning cannabis came up in conversation?
A. Yeah, I brought it up.
Q. Right.  And what did you have to say about it?  A. Um, long story short, I asked Natalie if I could use her spare bedroom?
Q. To do what?
A. To make seedlings and sell them on.
At that point the Recorder complained that the witness had dropped his voice and told him he must keep it up.  The Recorder then said he would just check his note and read out from his note:
“I asked Natalie if I could use spare bedroom to make the seedlings what?  To make seedlings.
DEFENDANT: To clone seedlings.’
Mr Murray for the defence pointed out that his actual response “and sell them on” and the defendant repeated the words “and sell them on”.
17.	The judge heard detailed argument from both advocates on the point. The gist of the Crown’s submission was that the evidence given by the appellant, and the manner in which it was given, tended to give the impression that the appellant was naïve with regard to illegal drugs and was discussing the proposed cultivation of cannabis as a novelty in his life. This was false, it was argued, because the appellant had the 2002 convictions for possession, on that one occasion, of two small wraps of class A drugs. Thus, it was argued, the evidence of those two convictions was admissible to correct “a false impression” given by the appellant, pursuant to s.101(1)(f) of the Criminal Justice Act 2003. As the judge was at pains to point out in argument, if that gateway was opened, then the residual discretion conferred by s.101(3), to exclude the evidence on the grounds of adverse effect on the fairness of the proceedings, did not apply to evidence within section 101(1)(f). Any residual discretion could only be under the Police and Criminal Evidence Act 1984 s.78.
18.	For the defence, it was argued that no false impression was given. The evidence showed that the appellant, on the relevant occasion was openly suggesting a cannabis production operation with a view to re-sale of the seedlings. It was the opposite of naivety. Alternatively, if the appellant had given a false impression initially, then it was immediately corrected in the passages quoted already where the appellant said expressly that the suggestion for the production of the cannabis came from him: see s.105(3) of the 2003 Act. In the further alternative, Mr Murray for the appellant argued that evidence should be excluded under section 78 of the 1984 Act.
19.	In his ruling, acceding to the Crown application to admit the evidence, the judge said this: 
“The clear flavour and context of what the defendant was saying at that time is, to my mind, in the light of having heard his evidence myself and watched his demeanour and seen the full context of it, that he was in effect saying this was in reality a novelty and represented some sort if experiment involving him and drugs which he took up and ran with by way of being something of a novel sideline to his life.  That is clearly a false impression in the light of the fact that he has this conviction which shows that as long ago as 2002 he had connections with drugs and indeed with Class A drugs and therefore was in no sense a novice in the world of drugs and their context.
…
If I were to allow that position to stand as it does the defendant would in fact be gaining what amounts to an unrealistic advantage from a false impression that he alone has clearly created.”
20.	For the appellant, it is submitted, as it was before the judge, that the relevant passage of the appellant’s evidence simply could not be construed as creating a false impression of naivety about drugs in general. It was simply setting out the circumstances in which the suggestion for cultivation of plants at Amy Close arose. The appellant could not be said to be disguising his past involvement with drugs that his convictions disclose.
21.	In our judgment, while we obviously respect the advantageous position in which the judge was, in hearing the evidence given and seeing how it was given by the appellant, we do not agree that the appellant was truly giving a false impression of anything at all. Like the Full Court that granted leave to appeal, we have difficulty in seeing how such an impression was  created at all by what was said. The appellant was merely saying how it was that the Amy Close enterprise came about and that it arose on his suggestion. Any naivety said to have been displayed was argued by the Crown to have been rendered false by these two convictions. They were, however, convictions over 12 years previously, when the appellant was 17; they involved simple possession of two small wraps of class A drugs, obviously for personal use only, for which the appellant received a fine. How such convictions could be said to displace an impression of naivety (if such it was) in suggesting to the co-accused a more sophisticated project of cannabis cultivation is, in our judgment, hard to appreciate. In the relevant passage of the evidence it does not seem to us that the appellant was coming even close to suggesting that he had never had any involvement with illegal drugs in the past.
22.	We conclude that the evidence of the convictions should not have been admitted.
The Summing-up
23.	Mr Murray takes two points arising out of the judge’s summing-up. 
24.	First, as we have indicated, he argues that, having (as we have found) wrongly admitted the evidence of the convictions, the judge was compelled to direct the jury as to how that evidence could be deployed in the case. The judge said this in his directions to the jury: 
“Mr Stokes you know has two convictions, which are set out in your last agreed facts documents at paragraph two, going back to 2002.  They relate to the possession of heroin and crack cocaine.  Firstly, you must not, merely because he has those convictions, necessarily come to the conclusion that he is guilty of any offence with which he is charged on this indictment.  That would be entirely wrong.  Why do you know about them? You know about them because, in the course of his evidence, he appeared at one stage to be suggesting that when he set up the cannabis growing facility at 1 Amy Close that that was something of a novelty for him, that he did not really know much about drugs and so on.  Well, that clearly was not the case.  And so you were entitled to know that he has this previous drugs conviction simply to show that he was not a total novice as far as drugs were concerned.  But that is the limit of it.  It may affect his credibility in that sense but that is a matter for you.  What you must not do, as I say, is simply assume his guilt because he has those two relatively old convictions.”
25.	Mr Murray submits that quite apart from the admission of the evidence, this direction served potentially to undermine the credibility of the appellant in the jury’s eyes. Further, it is argued, that the presence of these old convictions was the distinguishing feature between the appellant and Hunte, whom the jury acquitted, thus suggesting that it may have been the convictions that “tipped the balance” against the appellant.
26.	Mr Morse argues that the judge emphasised that the evidence was of limited relevance and warned the jury (twice) in the very short passage in his summing up that the evidence of the convictions did not necessarily mean that the appellant was guilty on either of the counts which they had to consider. Further, it was to be noted that the jury acquitted the appellant on the count relating to the cocaine found at Amy Close, which they might likely not have done if reliance had been placed by them on the convictions.
27.	Mr Morse further argued that the convictions were not the only distinguishing feature separating the appellant and Hunte. Hunte was only 17 years of age; he was of entirely good character and was the appellant’s nephew; he had not been observed at this site before. He had given evidence before the jury giving an innocent explanation of what he had been doing on the site on 3 December, which the jury must have accepted as being possibly true.  In such circumstances, the jury might well have been unsure of Hunte’s complicity in the production of cannabis on such a large scale.
28.	Secondly, Mr Murray points out two errors in the judge’s summing-up of the facts which, he submits, were calculated to mislead the jury. 
29.	As for the first of these, the police officers conducting the observations on 3 December 2013 had seen the appellant and Hunte put bags into the car. The appellant and Hunte said that the bags contained a change of clothing. The judge said to the jury in summing-up (at p.23B of the transcript) that the contents of the car did “not appear to have contained changes of clothing”. However, the agreed evidence of the search only referred to some items found in the car, it did not go so far as to say that the search record listed all the items in the car; nor did it say that clothing had not been found.
30.	The second error arose in this way. It concerns the evidence about tyres which concealed the trapdoor leading to the underground cannabis factory. Here the judge told the jury that a police officer called DC Pointon had told them that it had taken between 5 and 10 minutes to remove all of the tyres from the unit. Referring to that evidence, the judge said (at p.24D), 
“In cross-examination he said it took five or ten minutes to remove all of the tyres from the unit, not just sufficient to open the trapdoor but all of them”.
31.	Mr Murray’s point to the jury was that PC Pointon was saying that it had taken some six officers to move the tyres that had to be shifted in order to gain access to the hatch leading to the underground facility. Thus, when the appellant had been observed at the premises on the three previous occasions, when he had been followed there by the police, his presence was for slightly in excess of twenty minutes on each occasion, not leaving him sufficient time to remove the tyres, do something productive below the hatch with the cannabis crop and then replace the tyres before departing. Mr Murray argues that the manner of the judge’s summing-up undermined this aspect of the defence case.
32.	We have the transcript of PC Pointon’s evidence in which he explained that tyres were removed from the unit by officers in a chain passing them one to the other. At the end of his cross-examination by Mr Murray, there was the following exchange: 
“Q.  And just help me if you can, Officer.  So you and your colleague undertaking that exercise, how long did it take you to move all of these tyres?
A.	Um, I’d say five or 10 minutes.
Q.	That, it looks a significant quantity, um, are you sure it was as short as 10 minutes?
A.	Um, as I say, I didn’t time myself, but I’d say roughly about five to 10 minutes, yes.”
33.	The precise effect of this part of the officer’s evidence, so far as the criticised passage of the summing-up is concerned, is perhaps not as clear as it might be. However, Mr Morse for the Crown (in his written response to the grounds of appeal) concedes that the judge was in error in what he said in this part of the summing-up and acknowledges that the periods of time spent by the appellant at the premises on the other observed occasions were not sufficient in length for him to park, go through the site gate, open the unit, move the tyres, go into the underground area, replace the tyres and leave. Mr Morse does assert, however, that it was not the Crown’s case that the appellant was the only person involved, nor that he could have done all those things on each visit; on the first visits the police observers were unable to see beyond the farm gate in order to observe who else might have been present. Moreover, it might be added the final visit on 3 December 2013, when the appellant and Hunte were apprehended, lasted some four hours.
34.	We invited Mr Morse to address us as to the safety of the convictions, acknowledging the errors in the factual summing-up which he acknowledged and on the hypothesis that we might decide that the convictions should not have been admitted into evidence.
35.	Mr Morse argued that, even on those hypotheses, the conviction on count 1 was safe. There was, he argued, a strong case against the appellant, having regard to a number of factors: his presence at the site on the earlier occasions, his possession of the necessary keys to gain access to the unit, his admitted cultivation of seedlings at Amy Close, his presence at that site for four hours on 3 December and his apprehension there in a car carrying cannabis farming paraphernalia and smelling strongly of cannabis, in which some £5,700 in cash was also uncovered.
Conclusion on the conviction appeal
36.	In our judgment, in spite of the factors identified on the appellant’s behalf, it seems to us that the conviction on count 1 is safe. 
37.	The two old convictions, which we consider the judge was wrong to admit into evidence, were only a very minor part of the evidence in the case, which (for the reasons advanced by Mr Morse) was a strong one against this appellant on count 1 in any event. He admittedly grew cannabis in seedling form at Amy Close and was observed on a number of occasions at the farm premises, where this significant production facility was found. He was arrested, in the circumstances which we have described, in possession of the means of access to the very unit on the site where the cannabis plants were growing. While we note Mr Murray’s submission that the case against the appellant on count 4 in contrast (the cocaine in the freezer) was not a strong one, the jury did acquit the appellant on this charge, to which the old convictions might be thought to have had some bearing, if of  any significance at all in the jury’s minds.
38.	As for the errors in the factual summing-up, we do not think that these undermine the safety of the conviction as a whole. Mr Murray had, it is accepted by the Crown, made a powerful submission to the jury about the time required to remove tyres from the hatch area as compared with the length of the appellant’s previous visits to the farm. However, when it came to raising points with the judge for possible correction of the summing-up, we are told he did not mention this point. Further, as Mr Morse submits, the relative brevity of the first three visits was only one factor for the jury to consider in the evidence as a whole.
39.	Therefore, we dismiss the conviction appeal. We turn to the sentence application.
Sentence
40.	The appellant is now 29 years old. He had been convicted on seven occasions of 11 offences, including the two drugs offences which we have previously mentioned. His most recent offence was robbery in 2007 for which he was sentenced to 8 years imprisonment.
41.	In passing sentence the learned recorder found that the appellant played a leading role in relation to the cannabis production at the farm. The judge concluded that a great deal of time and investment had gone into the set-up. He said this was a commercial operation producing drugs on a large scale. The judge referred to the number of plants (257) found at the farm, with a street value assessed at between £70,000 and £215,000. There was evidence of a previous crop which might have taken the street values of the drugs produced at the farm site to even higher amounts. The judge concluded that the enterprise was at a high commercial level, if not quite on an industrial scale. It was considered that the appellant had endeavoured to cover up his involvement with other business activity which was an aggravating feature. The judge said that the appellant was in charge of the unit, even if he did not pay the rent, the likelihood was, said the judge, that it was his partner who made that payment. He referred to the production at Amy Close.
42.	The judge concluded that this offending was within category 2 of the Sentencing Guideline for the offence and that, in view of the appellant’s leading role, there was a starting point for sentence of 6 years custody. He found there were aggravating factors, including the sophistication of the operation and the other businesses that covered it up; the appellant had recruited Kennell to set up cannabis “nursery” at her premises. There was also the appellant’s offending record to consider. 
43.	The judge proceeded to pass the total term of imprisonment of 7 years.
44.	On the present application, it is submitted that the sentence was manifestly excessive. It is argued that the judge was wrong to ascribe to the appellant a leading role and to put the sentence close to the top of the bracket for a category 2 offence and within the bracket for category 1. The contention is that the judge was wrong to regard these 300 or so plants as being “not quite an industrial use, but…certainly a high level commercial enterprise”. Further, Mr Murray says that the features of the appellant’s involvement (possession of keys, unrestricted access and a number of visits to site) are commonly found present in the cases involving “gardeners” of cannabis, who tend the plants while those higher up the chain keep their distance from the cultivation site. In addition, it is argued that the number of plants involved in this case may not have been much in excess of those that might be found in a cannabis production in the bedrooms of a house. 
45.	From all this, Mr Murray argues that the judge should not have categorised this offending as being beyond that of a significant role in an operation capable of producing significant quantities for commercial use (i.e. squarely within category 2, rather than approaching category 1).
46.	For our part, we can follow Mr Murray’s submission to some extent, but not all the way. It may be that the level of production could properly have been regarded as squarely within category 2 (although we do not forget the evidence of an earlier crop, which might well have swayed the judge). There was reason to see the appellant as having a role of importance at the farm site, justifying a finding of a leading role. Further, the appellant did have other convictions over and above the two relatively minor convictions for possession of drugs in 2002. However, we do not consider that the various features of the case required the imposition of a sentence very near the top of a guideline range of 4 ½ to 8 years custody. In our judgment, there was no need to go beyond the starting point of 6 years.
47.	For these reasons, we grant leave to appeal against sentence and allow the appeal to a limited extent. We quash the sentence of 7 years imprisonment on count 1 and substitute a sentence of 6 years imprisonment in its place. The total sentence will, therefore, be one of 6 years imprisonment in place of the 7 year term imposed in the Crown Court. All other orders will remain as before.