Elliott, R v

J U D G M E N T

1. MR JUSTICE HOLROYDE: This applicant was tried at the Central Criminal Court on an indictment containing a number of counts relating to items found at his home on 21st January 2009. On 17th September 2009 he was convicted of two offences of possession of a firearm with intent to endanger life, contrary to section 16 of the Firearms Act 1968. Count 1 related to a shortened shotgun and count 3 related to a Baikal pistol. He was further convicted of two offence of possession with intent to supply of a controlled drug of Class A, namely cocaine, contrary to section 5(3) of the Misuse of Drugs Act 1971. Count 5 related to 2.98 grams of powder containing cocaine, found in 15 plastic wraps in a jacket pocket. Count 6 related to 56.19 grams of powder containing cocaine, found in a store cupboard. He now renews his application for leave to appeal against those convictions following refusal by the single judge.

2. The relevant facts can be very shortly stated. On 21st January 2009 police officers searched the applicant's home, a flat in Peckham. The applicant was present, as were other members of his family. The smaller quantity of cocaine was found in the pocket of a jacket which the applicant admitted was his. He initially admitted that the drugs in the pocket were also his, but at trial said that was a lie, which he had told out of concern for the possible consequences for other members of his family. The other items were in a store cupboard located outside the front door to the flat. This cupboard was locked, but there were two keys capable of opening it inside the flat where either the applicant or others could have had access to them. Moreover, it appeared that the relevant type of key could easily be bought and would open more than one such store cupboard within the block of flats.

3. When the store cupboard at the applicant's flat was unlocked and opened it was found to be full of a variety of items. The larger quantity of cocaine was found in three places in this cupboard, some of it in a plastic bag inside a large holdall, and all three portions were wrapped in a similar way to each other. Underneath that large holdall was a smaller holdall which contained the shortened shotgun, which was found to be loaded. Beneath that smaller holdall, wrapped in a sock, was the Baikal pistol, also loaded.

4. The prosecution relied, as evidence of the applicant's possession of the drugs, on three particular matters in addition to the initial admission which we have already mentioned. Firstly, when asked about what had been found in the jacket pocket, the applicant accurately described it as "14 or 15 wraps of crack". Secondly, the holdall in which the larger quantity of cocaine was found was the applicant's holdall and also contained letters which had been written to the applicant when he was serving a sentence in custody and which he had retained. Thirdly, the expert evidence of a scientist was that analysis of the separate quantities of cocaine showed the chemical composition of each to be similar but unusual, and so provided strong support for the conclusion that they came from a common source.

5. There was also evidence, which the prosecution contended gave rise to an inference of an intention to supply, such as the finding in the store cupboard of electronic scales and razor blades.

6. At trial the applicant denied knowledge or possession of either the cocaine or the firearms. On his behalf, the point was made that many persons could have had access to the contents of the store cupboard. Thus, the issues for the jury, considering each count separately, were whether the prosecution had proved for sure that the applicant was in possession of the cocaine or the firearm concerned and, if so, whether the prosecution had proved for sure that he possessed it with the requisite intention.

7. Before the trial began there was lengthy legal argument as to the admissibility of certain evidence which the prosecution wished to adduce as evidence of the applicant's bad character. On the applicant's behalf, counsel, Mr Bowers, who represented the applicant at trial, as he does before this court, does not now seek to challenge the ruling of the learned trial judge, permitting the prosecution to adduce evidence of the applicant's two previous convictions for possession with intent to supply of controlled drugs of Class A. He does however seek leave to argue that the convictions are unsafe because the judge was wrong to admit, as evidence of bad character pursuant to section 101(1)(d) of the Criminal Evidence Act 2003, evidence "relating to the applicant's purported membership of a violent street gang."

8. The evidence in question fell into two parts. Firstly, there was evidence from a DC Whiteway as to the existence in Peckham, and involvement in drug and gun crime, of criminal gangs including the PYG (that being the abbreviation for the Pecknarm [Peckham] Young Guns) and the YBS (or Yellow Brick Shower) formerly the YBM (or Yellow Brick Massive). Secondly, there was evidence by which the prosecution sought to show the applicant's membership of one or more of those gangs. Mr Bowers’ challenge relates to both aspects.

9. The first question which arises is whether evidence tending to show the applicant's membership of a violent gang was capable of being admissible, pursuant to section 101(1)(d) of the 2003 Act as being "relevant to an important matter in issue between the defendant and the prosecution." In our judgment, it plainly was.

10. As Mr Bowers accepts, the case of R v Smith [2009] 1 Cr App R 36, provides support for the view that evidence of gang membership is in some circumstances admissible as evidence of bad character. The jury in this case had to decide whether they were sure the applicant was in possession of all or any of the items to which the charges related. As part of that decision, they had to consider whether they could exclude any reasonable possibility that an item, particularly those in the store cupboard, was the property of a person or persons other than the applicant. Evidence which could satisfy them that the applicant was a member of a gang which was involved in drug crime and in the carrying or use of firearms was plainly capable of assisting the jury to reach their decision.

11. So far as the existence and criminal activities of the relevant gangs are concerned, this court is satisfied that the evidence of DC Whiteway was properly admitted. He was an officer with considerable experience of the violent criminal gangs of areas of south London including Peckham. The judge was entitled, in accordance with the principles stated by this court in R v Hodges [2003] 2 Cr App R 15, to permit that experienced police officer to give evidence based on his own experience and knowledge about the existence of the gangs and about the insignia of the gangs.

12. As to the former, DC Whiteway gave evidence that the PYG was a violent gang whose members would use firearms if they thought it necessary. As to the latter, DC Whiteway gave evidence that a black and white bandana was an emblem of membership of the PYG. He also gave evidence that another indication of such membership was the forming of a letter P which the thumb and first two fingers.

13. Mr Bowers points out that so far as the YBS were concerned, DC Whiteway accepted he had never heard of that gang until he read the letters recovered from the applicant's holdall, though he was able to identify "Yellow Brick" as being a reference to the name commonly used to describe a particular local housing estate. He gave no evidence as to any crimes committed by members of the YBS specifically, though he did give evidence that in certain situations, such as an issue arising between those from Peckham and those from another area, smaller gangs would join forces under the umbrella of the PYG. Those were matters which could well have affected the weight which the jury gave to that part of his evidence. But it was not a ground for denying the admissibility of his evidence as to gangs in the Peckham area generally. In any event the important part of DC Whiteway's evidence was that which related to the PYG, and his lack of previous knowledge of the YBS in no way undermines the safety of these convictions.

14. In the course of his evidence, DC Whiteway commented on certain images which he had downloaded from the Internet, showing persons wearing black and white bandanas and making the P sign. Before us today Mr Bowers has realistically acknowledged, for the purposes of this application, that no hearsay issue arises in this regard. One image in particular, identified as Exhibit PB7, shows among other thing the words "Pecknarm PYG black bandana gang", a drawing labelled "Pecknarm Young Guns" of a man wearing a black bandana making P signs with both hands, and a drawing of a gun firing a shot.

15. Mr Bowers' complaint that this evidence generally was "non specific" does not, in our view, provide a reason for ruling it inadmissible. The whole point of the evidence was to demonstrate that gang members generally wore such bandanas and made such gestures, and the jury were entitled to regard this evidence as proving that fact. Nor do we accept Mr Bowers' submission that the evidence was "virtually impossible to challenge". It was for example, perfectly possible to cross-examine DC Whiteway to suggest that the clothing and gestures were simply aspects of youth culture. The applicant was able to and in due course did give evidence that the poses were just for fun and did not connote gang membership. If other witnesses were available to confirm what the applicant said, they too could have been called.

16. In fact, although the applicant always denied membership of any gang, much of what DC Whiteway said on this first topic was accepted by the applicant when he gave evidence. There was an issue about the significance of using the thumb and fingers to form a letter P. The applicant's case was that such a symbol was commonly used by many young people from Peckham and was an indication merely of their home area, rather than a sign of gang membership. But that was a factual matter for the jury to resolve on the evidence as a whole.

17. We consider next the admissibility of the evidence by which the prosecution sought to show that this applicant was a member of the PYG. Of course, with a gang of this nature, it is not to be expected that there would be any formality about membership, and reference to a gang member or cognate terms must be taken as no more than a convenient shorthand to encompass membership of, affiliation to, or support for the gang.

18. The evidence on this second topic fell into three categories, which we will consider in turn.

19. Temporary Detective Constable Azad gave evidence about a search in July 2007 of the home of a man called Williams. The search itself was wholly unconnected with this applicant, but Detective Constable Azad found a letter which this applicant had written from prison to Williams. Detective Constable Azad immediately made a note of the name and prison reference number of the author, and as we understand it the applicant accepted that it was his reference number. The letter was not however seized, being irrelevant to the purpose for which the search of Williams' home was being conducted. The best evidence of its contents therefore was the recollection of Detective Constable Azad. Although he did not claim to be able to quote the letter verbatim, his evidence included a recollection that the applicant in this letter "made reference to the fact that when the PYG were in HMYOI Feltham they ran the wing. However now that he is in Reading, he's not having so much control of his surroundings."

20. Of course it would have been more satisfactory for the letter itself to be available so that the jury could read precisely what had been written. But there was a reasonable explanation for why the letter was not available and we reject the submission that it was "entirely unfair" for secondary evidence to be given of its contents because it was "impossible to effectively challenge this evidence". It was, after all, a letter which had, on the face of it, been sent by the applicant himself. His evidence was that he had no recollection of it, but he could reasonably be expected to know if he would ever have sent a letter in the terms to which Detective Constable Azad referred.

21. If the jury accepted Detective Constable Azad's recollection as reliable, they were entitled to regard the letter to Williams as an admission by the applicant that he was a member of the PYG. This court has no doubt that the letter was properly admitted.

22. Secondly, the prosecution were permitted to adduce in evidence, certain images recovered from the applicant's mobile phone. In two of these, the applicant was pictured making a gun sign with his hand. In another two he was pictured making the P sign in company with another young man, who was also making that sign and who was wearing a black and white bandana. Mr Bowers submits that these provided no real evidence of gang membership and were merely prejudicial. We disagree. If the jury accepted the evidence of DC Whiteway, as they were entitled to do, the fact that the applicant chose to be photographed striking such a pose in the company of a young man so dressed, was capable of having substantial probative value. What weight the jury gave to these images, in the light of the applicant's own evidence on the topic, was a matter for them.

23. Thirdly, and in Mr Bowers' submission, most controversially, the prosecution were permitted to adduce evidence of some of the contents of some of the letters which had been sent to the applicant whilst he was in prison and which were found in the large holdall in the store cupboard. The relevant passages included references to gangs and, by way of signature, drawings of a hand making the P sign.

24. Mr Bowers submits that the contents of these letters were hearsay and should have been excluded for the simple reason that no hearsay application had been made by the prosecution. The judge ruled that the letters were relevant to the issue of whether the applicant was a gang member and, accepting the submission of the prosecution, he ruled that the relevant passages "are, if anything, unintentional implied assertions and are not hearsay".

25. In R v Sukadeve Singh [2006] 2 Cr App R 12, this court held that the combined effects of sections 114 and 115 of the Criminal Justice Act 2003 was to abolish the common law rules of hearsay save where they were expressly preserved and to create instead a new rule against hearsay, which did not extend to implied assertions.

26. So far as is relevant to the present case, section 115 is in the following terms:

"(1) In this Chapter references to a statement or to a matter stated are to be read as follows.

(2) A statement is any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form.

(3) A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been—

(a) to cause another person to believe the matter, or

(b) to cause another person to act or a machine to operate on the basis that the matter is as stated.

27. In our judgment, the judge was correct to hold that the contents of the letters to the applicant fell outside that statutory definition. The authors of those letters were not making any representation of fact or opinion. Nor did they have a purpose of causing the applicant to believe any such representation or to act on the basis that any such representation was correct. They were simply expressing the shared support of both writer and reader for the PYG. The contents of the letter could properly be regarded by the jury as being predicated upon a shared involvement in the gang. The jury could infer that the authors did not need to, and did not, represent any fact, or seek to cause the applicant to believe or act upon any such representation, precisely because of that shared involvement. That was the basis on which the prosecution sought to put them before the jury, and the judge was right to conclude they were admissible on that basis.

28. In developing this aspect of his submissions, Mr Bowers argued that it was relevant to note that the meaning of the words and the drawings required interpretation by DC Whiteway before it could be understood by the jury. That may be so. But it is not, in our judgment, a ground for objecting to the admissibility of the evidence.

29. For those reasons, we reject all of Mr Bowers' submissions as to the admissibility of the bad character evidence. It remains for us to consider whether the evidence, even if admissible, should have been excluded pursuant to section 101(3) of the 2003 Act, because the judge should have acceded to Mr Bowers' submission that "the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

30. On this issue, Mr Bowers submits that the other evidence in the case was short in duration and entirely straightforward in nature but it was overwhelmed by the scale and complexity of the bad character evidence. He submits that the judge should have given more weight to the fact that the applicant would inevitably be prejudiced as to his credibility by the admission of the evidence of his previous convictions, and should not have admitted evidence largely based on contentious interpretation by Detective Constable Whiteway which could well divert the jury from the real issues.

31. Before this court, Mr Bowers relies on the cases of R v O'Dowd [2009] EWCA Crim 905 and R v McKenzie [2008] EWCA Crim 758. We accept, of course, the principles stated by this court in those cases. But we do not accept that in the circumstances of this case, there was an unfair disproportion between the bad character evidence and the other evidence. As we have already said, evidence pointing to gang membership was capable of assisting the jury on the central issue which they had to decide. Violent gangs, which provide no social amenity and exist for criminal purposes, are unlikely to issue membership cards, and so proof of membership will almost inevitably involve the prosecution putting forward evidence of a number of circumstances from which gang membership could be inferred. There was no great complexity in DC Whiteway's evidence of how the members of PYG dress, pose and act. Nor was there any great complexity in the jury considering whether the evidence as a whole pointed surely to the applicant being a member of that gang. The jury, in our judgment, could safely be left to assess the weight to be given to the evidence, and we do not think there was any real danger of the jury becoming bogged down in collateral issues. We therefore see no ground on which the judge could be criticised for declining to exclude the evidence which he had rightly found to be admissible.

32. Mr Bowers goes on to submit that the terms in which the learned judge directed the jury about these matters were inadequate. It is sufficient to say that we do not accept that submission, and take the view that the learned judge dealt entirely sufficiently with the relevant matters.

33. We also note the overall strength of the case. Even if every one of Mr Bowers' challenges to admissibility had succeeded, there would still have been a strong case against the applicant. The evidence connecting him to the drugs in the store cupboard was compelling, and there was an obvious inference that whoever had put the drugs in the cupboard had also put the guns there.

34. We are grateful to Mr Bowers for his careful submissions to us, particularly so since he acts today pro bono. We are nonetheless satisfied that the learned judge's decision to admit bad character evidence is not open to successful challenge, and that it is not properly arguable that these convictions are unsafe. This renewed application is accordingly dismissed.