Roberts, R v

On the 13^th December 2006 at the Crown Court at Lincoln, the appellant was convicted of possessing a Class C drug with intent to supply, possessing a Class A drug with intent to supply, and two counts of possessing a firearm when prohibited, contrary to section 21(1) of the Firearms Act 1968. He was sentenced to a total of ten years imprisonment. He appealed against sentence with leave of the single judge; and we allowed the appeal and reduced his sentence on the 14^th May 2008. He also appeals against conviction with leave of the full court. We indicated at the hearing that we would be dismissing the appeal. We now give our reasons for so doing.

The short point with which we are concerned is whether or not the four counts on the indictment were properly joined. The facts are straightforward. The police searched the appellant’s home. PC Hollis and other officers found a bag containing approximately 15.5 grammes of cocaine and 58.5 grammes of cannabis in the kitchen area. DC Biggs searched the main bedroom and found, in a large walk-in wardrobe, two air rifles and a white bucket containing cannabis bush. The sole question is the propriety of joining the two counts of possession of drugs with the two counts of possession of firearms.

Section 4 of the Indictments Act 1915 provides:

“Subject to the provisions of the rules under this Act charges… for more than one offence… may be joined in the same indictment.”

The rules in force at the time of the trial in the present case were the Indictments Rules 1971 which by rule 9, now replicated in rule 14.2(c) of the Criminal Procedure Rules 2005, provides:

“Charges for any offences may be joined in the same indictment if those charges are founded on the same facts, or form or are part of a series of offences of the same or a similar character.”

The simple argument on the behalf of the appellant is that the phrase “founded on the same facts” is not the same as “arising out of the same events”, or “occurring on the same occasion”. It is further to be distinguished from the phrase “the same facts or evidence”, which is the phrase used in section 40(1)(a) of the Criminal Justice Act 1988 which provides for joinder of a summary offence in an indictment in such circumstances. In relation to this latter sub-section, counsel adopts the suggestion of Professor Sir John Smith in his commentary in [1995] Crim L R 745 to the decision of this court in R v Bird. He there said:

“The words of section 40(1)(a) suggest that they are intended to refer to an included offence.”

We shall return to the case of Bird. But it may be helpful to place it in context. The first case in point of time to which we were referred was R v Conti (1974) 58 Cr. App. R. 387. In that case the appellant was charged on an indictment containing three counts, namely assault occasioning actual bodily harm, possessing an offensive weapon, and possessing a prohibited drug without authority. The judge had permitted this drugs count to remain in the indictment, but had ordered that other drug counts should be severed from the indictment. It appears from the report that as the judge had understood the prosecution case, the prosecution were relying on the facts relating to the finding of the amphetamines which were the subject of the count which remained in the indictment as part of their case that the appellant was in an aggressive state of mind. The court had no difficulty in concluding that, as it put it:

“The drug offence charged in count 5 was all part of the evidence tending to establish that the appellant had committed the offences charged in counts 3 and 4.”

It is submitted on behalf of the appellant in the present case that this is a good example of joinder that was justified, as the possession of the drugs was clearly part and parcel of the facts surrounding the assault and the possession of the offensive weapon. In the present case, he submits, the prosecution never suggested that there was any connection between the guns and the drugs. They merely happened to have been discovered at the same time on the same premises.

The next case is R v Barrell and Wilson (1979) 69 Cr. App. R. 250. In that case the indictment contained counts of affray and assault against both appellants, and a count against Wilson alone of attempting to pervert the course of justice. The latter count was based on the allegation that Wilson visited the manager of the discotheque at which the alleged affray and assault had taken place, and tried to induce him to modify his evidence about the assault when the matter came before the justices. The appellant’s contention was that the charge of attempting to pervert the course of justice arose from a different set of facts and was separated by a substantial interval of time from the affray and assault. He contended that to justify a joinder within the terms of section 4 and rule 9 the subsidiary offence must, as he put it, be an integral part of the primary offences and must not be separated from them by any distance in time. Shaw LJ said:

“This contention rests on too narrow a construction of the language of the statute and the relevant rule. The phrase “founded on the same facts” does not mean that for charges to be properly joined in the same indictment, the facts in relation to the respective charges must be identical in substance or virtually contemporaneous. The test is whether the charges have a common factual origin.”

In the case of Bird to which we have already referred, the appellant was stopped by a police officer, found to be a disqualified driver, and to have in his possession in the car a two foot long wooden pole which he said he kept for his personal protection. He was committed for trial for the offence of possession of an offensive weapon, an either way offence, and under section 40(1)(a) of the 1988 Act for driving whilst disqualified. The question was whether the two offences had been properly joined in the indictment. The court held that the two offences were committed at the same time as he drove along and were therefore founded “on the same facts on evidence”. The fuller version of the passage in Professor Sir John Smith’s commentary, to which we have already referred, is as follows:

“The words of section 40(1)(a) suggest that they are intended to refer to an included offence. If, for example, the indictable offence requires proof of facts A, B and C, and the summary offence proof of facts A and B, then a count charging the summary offence would be founded on the same facts or evidence as the count charging the indictable offence. A perusal of the offences to which section 40 applies shows that they are all offences on which it may be desirable to fall back because of a failure to prove all the elements of a greater offence. Because they are summary offences, there can be no conviction of the lesser offence by virtue of section 6(3) of the Criminal Law Act 1967. Section 40 renders such a conviction possible. Is that the proper limit of its effect?”

The answer to that question was given by this court in the case of R v Cox [2001] EWCA Crim 728. It was an application for leave to appeal. This was again a case involving section 40(1)(a) of the 1988 Act. The applicant together with another had been committed for trial to the Crown Court in relation to offences which had involved a PC Tucker. Whilst on bail for these offences, he was seen by PC Tucker driving, once again, whilst disqualified. He was arrested and taken to the police station where he threatened PC Tucker. The consequence was that he was committed on a second occasion to the Bristol Crown Court on charges of witness intimidation and driving whilst disqualified which were joined in the same indictment. The judge ordered that the witness intimidation count should be removed from that indictment and joined with the indictment for the earlier committal. The appellant then pleaded guilty to the remaining charge of driving whilst disqualified. Forgetting other procedural complications, the nub of the application for leave to appeal against conviction on the count of driving whilst disqualified was that the indictment had been a nullity because the counts had been improperly joined. Having considered Barrell and Wilson, and the commentary to Bird in the Criminal Law Review to which we have referred, Toulson J answered the question posed by Professor Sir John Smith with a simple “no”. The judgment continued:

“We accept and follow the construction placed on the words by this court in Barrell and Wilson. Of course the words “have a common factual origin” are broad. The degree of overlap could range from something very tenuous to, at the other extreme, situations where the facts are identical. A slight or tenuous connection would not be sufficient, but nor on the other hand need the facts be identical. We consider that two offences may fairly be said to be founded on the same facts or evidence where there is sufficient factual or evidential overlap to make it both just and convenient for them to be tried together. Here the evidence of PC Tucker on the trial (if there had been one) for witness intimidation would probably have included the history of his dealings with the applicant, including his arrest of the applicant on the same day for driving while disqualified…
Where evidence of facts going to establish the offence – that is to say in this case the offence of driving while disqualified – were properly admissible as part of the narrative of the events leading up to the alleged commission of the offence of witness intimidation, it must follow that there was sufficient factual and evidential overlap to meet the requirements of section 40. It was plainly just and convenient for the two matters to be tried together, rather than that PC Tucker should be called twice over in different courts to give substantially overlapping evidence about the events of the same day and be cross-examined twice.”

This court does not usually cite judgments in applications for leave. But this seems to us to be a helpful exposition of the proper approach of the court, at least in relation to the application of section 40(1)(a) of the 1988 Act. However, it should be noted that although the judgment was based upon Barrell and Wilson, it will be remembered that there is a difference between the test in rule 9 of the Indictments Rules 1971 and the test in section 40 of the 1988 Act. For the purposes of rule 9, charges can only be joined if they are “founded on the same facts”, whereas the test in section 40 is whether the offences are “founded on the same facts or evidence”. It is submitted to us, and we consider rightly, that the two tests are not identical. It is unclear what the purpose of the distinction may be; but distinction there clearly is. In Cox, the connection that was made between the two counts was that the evidence of PC Tucker was the link between the two, and that clearly the evidence relating to the driving whilst disqualified would have been admissible in relation to the offence of witness intimidation in order to explain its origin.

The parallel with Barrell and Wilson is however striking. There the connection between the charges of affray and assault and attempting to pervert the course of justice was of a similar kind. And that was considered by the court to be sufficient for the purposes of rule 9. It follows that rule 9 is not simply concerned with lesser included offences any more than is section 40. Nor is it concerned simply with situations where the recitation of the minimum facts necessary to establish the one offence also establishes the other offence. For the purposes of the present case, the facts upon which each of the counts was based was the finding in the one premises at the same time of the drugs and the firearms. In our judgment, that equates to the position in the case of Bird. It falls into the category of case where the factual connection is established by the coincidence of time and place, in other words it meets the concept of being “virtually contemporaneous” which is one of the categories which the court recognised clearly fell within rule 9 in Barrell and Wilson.

The counts on the indictment all alleged offences of being in illicit possession of prohibited items. These were continuing offences. As it turned out, it was to be the Appellant’s case (but only his case) that different people, who had access to his premises, had secreted these items in the wardrobe without his knowledge on earlier and separate occasions. If it had been his case that he came into possession of all the items in the same way and on the same occasion, there could have been no argument that the counts were improperly joined. The question whether counts have been properly joined cannot, in our judgment, depend upon the explanation given by the Defendant. It is not for the Crown to try and predict what the defence is likely to be at the time that the indictment is drawn. The propriety of the indictment must be judged when it is drawn.

It follows that, for the reasons we have set out, the counts were properly joined, so long as it was just and convenient for them to be tried together. It clearly was, and there has been no argument to the contrary. We therefore dismiss the appeal.