Fraser, R v

J U D G M E N T

Thursday 2 October 2003

LORD JUSTICE AULD:

1. On 8 November 1993, before His Honour Judge Taylor and a jury, in the Crown Court at Birmingham, the appellant, Lloyd George Fraser, was convicted on two counts of possession respectively of cannabis and cannabis resin. Also charged with him on the two counts were his brother, who was acquitted on both, and a man named Jackson, who pleaded guilty to related but lesser offences. On 3 December 1993 the appellant was sentenced to seven years' imprisonment on each count, the sentences to be served concurrently. His application shortly afterwards for leave to appeal against the convictions was refused on its renewal to the full court. Now, getting on for ten years later, he appeals against the convictions upon a reference by the Criminal Cases Review Commission.

2. The evidence and issues at trial were in summary as follows. On 7 October 1991, a West Midlands drug squad officer, who was observing with a number of others the co-accused Jackson's house, saw the appellant and his brother arrive by car and go inside. One of them was carrying a bulky, white plastic bag. They emerged shortly afterwards and the police stopped their car. The police, on entering the house, discovered two white plastic bags in the loft containing 12 kilogrammes of cannabis resin and shrub cannabis with a street value of about £120,000. Two of the appellant's keys were found to fit the house locks. He and his brother were driven to the police station. Police accompanying them or present on their arrival claim to have found a twist of cannabis resin, cut from the stock found in the house, secreted beneath the car seat on which the appellant had been seated.

3. The prosecution's case was that the appellant had used Jackson's address as a safe house for his drugs, and that the keys he had gave him ready access to the premises. The appellant denied the offences. He said that he was a taxi driver and that the keys were property that had been left behind in his office by someone he did not know. He claimed that the resin found in his car had been planted by police and that they had fabricated the evidence against him. So a central issue in the case was a defence allegation of a plant.

4. The issues for the jury were: first, whether they believed the police claim of having found the drugs in the house; and second, whether the prosecution had proved that the appellant had had possession of those drugs. The judge in his summing-up raised with the jury for their consideration the possibility of the whole evidence as to drugs advanced by the police in the case being a plant.

5. A number of police officers gave evidence at the trial. First, a Detective Constable Boyle said that on 7 October 1991 he had been observing a house in Winson Green, Birmingham, from an upstairs window in a house opposite. He was in radio contact with another officer, Detective Constable Green, who was keeping a log of the observations. At 8.16pm DC Boyle saw two people arrive by car and walk to the house. The passenger, who was wearing a white jacket, was carrying a heavy, bulky white plastic bag. The driver was wearing an orange jacket. They both went into the house quickly. He said that he had them in his sight for about ten seconds in all. It was raining and the street lights were on. Shortly afterwards he saw the two men come out of the house, enter the car in which they had arrived and drive to the end of a cul-de-sac. There police officers stopped them. The officer said that throughout his observations he had had an unobstructed view of the two men. In cross-examination he said again that it was the passenger who had carried the white bag. He acknowledged that, as a result of what he knew when giving evidence, the police had failed to find a white jacket in the house and that the appellant was not wearing one when he emerged from the house. He acknowledged too that it appeared that the appellant had been the driver of the car, not the passenger, and had worn neither a white nor an orange jacket. He ended his evidence by saying that the man not wearing the orange jacket had carried the white bag into the house.

6. 6. The second police officer who gave evidence, DC Battsford, said that he was one of the officers who had stopped the car at the end of the cul-de-sac. He said that the appellant, who had been in the driving seat, said to him and a fellow officer that he was a taxi driver who had come to collect a fare. The officer “frisked” him for weapons, but had not made a full body search. Very shortly afterwards a police car left the scene, taking the appellant and his brother to the police station.

7. 7. A number of officers entered the house, including DC Battsford, and another officer, DC Brakewell. DC Brakewell went upstairs to search, and on returning downstairs told DC Battsford that he had discovered the drugs in the loft. They then telephoned an officer at the police station requesting the officers at the police station to arrest the appellant and his brother.

8. 8. DC Battsford said that he stayed with DC Brakewell until a police photographer arrived when they removed the drugs from the loft. He said that he had earlier removed keys from the ignition of the appellant's car and had found that two of them fitted the door of the house in which the drugs were found.

9. 9. DC Brakewell also gave evidence. He said that he had entered the house either with or shortly after DC Battsford and DC Green. He gave an account of going upstairs and discovering the two white plastic bags containing drugs in the loft. He denied, when it was put to him in cross-examination, that he had removed a piece from that consignment of drugs and planted it in the police car that had taken the appellant and his brother to the police station.

10. 10. DC Green gave evidence. He too said that he had gone into the house after the appellant and his brother had been taken away to the police station. He too denied having planted any drugs in the police car.

11. 11. Police Constable Thompson, who had either travelled with the appellant and his brother to the police station or was present at the police station on their arrival, gave evidence of having searched the police car. He spoke of finding a twist of cannabis resin in the car after the appellant had got out of it. He said that it had been stuffed down the side of the seat which the appellant had occupied. He put the discovery to the appellant. The appellant's reply was that he had been searched at the scene before getting into the car, the clear implication being that if the drug had been on him it would have been found at that stage.

12. 12. Finally, Police Constable Heap gave evidence of having been present when PC Thompson told the appellant of having found the twist of cannabis resin in the car.

13. 13. As we have indicated, on examination of that piece of cannabis resin taken from the car (or allegedly so), it was found to correspond with the resin which had been found in the loft.

14. 14. The appellant was interviewed a number of times. He claimed that someone had left the keys to the house in his taxi office and that he had had them with him at the time for safe-keeping. He said that his co-accused Jackson had worked for him for a time. He said that he had called to pick him up on that particular night, but he was apparently too early. He said that he had picked up his brother first as he normally helped him. He said that his brother had entered the house to use the lavatory. He denied having taken anything into the house, or having had any knowledge of the drugs found there. He expressed surprise that the keys that were in his ignition had fitted the door of the house. He said that he had asked various people about their ownership, but he had not asked Jackson.

15. 15. At the close of the prosecution case, counsel for the appellant submitted that there was no case to answer on either of the counts on the indictment. He relied on three matters. The first was that the prosecution, he maintained, had produced no evidence to rebut the appellant's explanation of his possession of the keys. Second, he criticised DC Boyle's observation evidence as being based on a 10 second observation in difficult conditions, and one moreover in respect of which he had not identified the appellant and had made, so it was submitted, mistakes in his evidence about the appellant's clothing at the time. Third, he said that there was no evidence of the appellant having secreted the piece of cannabis resin in the police car.

16. 16. The judge, “after very considerable hesitation”, ruled that there was a case to answer and he rejected the submission. Following that rejection, the appellant did not give evidence.

17. 17. The appeal flowing from the reference by the Criminal Cases Review Commission comes about in this way. Since the convictions, information has come to light affecting the credibility of certain of the police officers who gave evidence in the case. Three of them have been the subject of police investigations since the conviction: first, DC Brakewell, who discovered and seized the drugs from the house, and who was suspended from duty as a result of a number of investigations; second, DC Battsford, who assisted with the arrest of the appellant; and third, DC Green, who had also gone into the house after the appellant and his brother had been taken to the police station and who had maintained the observation log.

18. 18. Two other matters have also subsequently been identified. First, the notebook of PC Thompson, who claimed to have found the wrap of cannabis in the back of the police car where the appellant had been sitting, was never handed in, and seemingly cannot now be found. Secondly and finally, the notebook of PC Heap, who had given evidence that he had heard PC Thompson inform the appellant of the finding of the wrap of cannabis, contains no mention of it at all.

19. 19. The investigations into the conduct of Detective Constables Brakewell, Battsford and Green resulted in a disciplinary hearing only against DC Brakewell. But what has emerged so far is sufficiently disturbing, particularly as to DC Brakewell's conduct in other cases, as in the words of Beldam LJ in R v Maxine Edwards [1996] 2 Cr App R 345, at 350F-G, to raise a suspicion of perjury that infects the evidence in this case.

20. 20. In the circumstances it would, as the prosecution concede, be impossible for the court to be confident that, had the jury known of these matters, they would have been bound to convict him. That is so notwithstanding that some of the matters and information about them post-date the trial of the appellant, since, if it had been available at the time, it would have been material to the jury's consideration of the officer's credibility; as the court held in R v Twitchell [2000] 1 Cr App R 373.

21. 21. Given the history of the matter and the inconclusive state of the disciplinary proceedings initiated against DC Brakewell, it is undesirable to go into great detail about them. It is sufficient to say that his conduct in other suspected drug cases has become the subject of a number of disciplinary investigations and the alleged irregularities were such as to persuade the Crown Prosecution Service that it would be wrong to proceed with a number of trials and to contest appeals in cases in which he had been an investigating officer, notably in R v Whelan [1997] Cr LR 353.

22. 22. Whilst DC Battsford has not been the subject of any disciplinary charges, he featured prominently in the case of Whelan, along with DC Brakewell, in which it was alleged that he and DC Brakewell had planted drugs in houses with which Whelan, the successful appellant, was connected. As the Criminal Cases Review Commission put it in its helpful statement of reasons for the reference, it is not possible to be confident that DC Battsford is immune from the suspicions of perjury surrounding DC Brakewell.

23. 23. We should note for the record that, while the Crown concede that these matters should lead this court to allow the appeal, it makes no concession adverse to the credibility of Police Constables Thompson or Heap, or indeed as to the conduct of any of the other officers in the case, apart from Detective Constables Brakewell and Battsford.

24. 24. In the result, the Commission concluded and, as we have indicated, the Crown's agrees, that DC Brakewell would not have been regarded as a witness of truth if the jury trying the appellant had known what we know now; and that DC Battsford's evidence is correspondingly tainted. In the light of the authorities, to some of which we have referred, the new information, if it had been available at the time, would have been admissible in evidence and could have been relied on in the appellant's defence. We agree with the Commission's reasoning and the Crown's concession. In the circumstances we consider that the convictions are unsafe and we allow the appeal.

25. MR WILCOX: My Lord, may I raise one matter? It is to do with representation. Those representing the appellant had the benefit of an order confined to counsel only. Since the grounds were drafted and lodged by myself in October it has been necessary for those representing Mr Fraser to try and speed matters up in response to various matters. They have written -- I would not have thought it is more than a couple of hours' work -- but might the representation order be extended so that they are reimbursed for their efforts? It has led to this matter being listed more quickly than it might otherwise have been.

26. LORD JUSTICE AULD: You are talking about writing a couple of letters, are you?

27. MR WILCOX: It is about half a dozen, I think.

28. LORD JUSTICE AULD: Yes, the representation order will be extended to cover that small amount of work done by your instructing solicitors. It should be carefully limited to the time spent taken in the writing of the letters. So we are talking about in total a couple of hours' work in all, are we not?

29. MR WILCOX: If that.

30. LORD JUSTICE AULD: Yes.

31.