Hayes, R. v

A conviction is not rendered unsafe by an alleged exhibit irregularity where the material sent to the jury was in evidence, had been discussed before them, and the jury were entitled to inspect it. A summing-up on cash said to indicate drug dealing is adequate where it fairly identifies the defendant’s explanations and the competing Crown case, leaving the jury to decide whether the explanations account for the money.

Judicial Studies Board model directions have no force of law. A failure to reproduce one is not, without more, a ground of appeal. They are examples to assist judges in tailoring directions to the individual case.

R v Hayes was an appeal against a conviction for possession of cocaine with intent to supply. The appellant admitted possession but denied an intention to supply. He had pleaded guilty to other drug offences, including cannabis supply or intended supply.

Two grounds were advanced. First, the appellant alleged an irregularity after the jury requested plastic-bag exhibits and received a selection which included small self-sealing bags. Secondly, he challenged the adequacy of the judge’s direction about £2,600 in cash, which the Crown relied upon as evidence consistent with drug dealing.

The central questions were whether the exhibit process made the verdict unsafe and whether the summing-up fairly directed the jury on the competing explanations for the cash.

1. Appeal dismissed. The conviction was safe. The material sent to the jury had been received in evidence and had been discussed before them. The officer had given evidence about the small self-sealing bags and the jury were entitled to inspect the items to which that evidence related.

2. The possible addition of bags formerly included within a different exhibit created no irregularity. The precise place where each bag had been found did not matter on the issue left to the jury. The issue was whether the items had an innocent explanation or demonstrated an intention to supply cocaine. Defence counsel had properly agreed to the compendious selection being sent to the jury.

3. The direction concerning the cash was fair, comprehensive and neutral. The judge had directed the jury that they could treat the money as supporting the Crown case only if they were sure that the appellant’s explanation was untrue. He also identified the appellant’s case that the money derived from cannabis dealing and gambling, the Crown’s contention that the sum was too large to be so explained, and the evidence concerning cocaine expenditure. The jury were therefore clearly directed to decide whether cannabis dealing or gambling explained the cash.

4. The court added that Judicial Studies Board model directions are examples, not directions or orders carrying legal force. A departure from their wording cannot by itself found an appeal. The question remains whether the direction actually given provided the assistance the jury needed in the particular case.

• Court of Appeal (Criminal Division): dismissed the appeal and upheld the conviction in R v Hayes, [2010] EWCA Crim 773.
• Crown Court: the appellant was convicted by a jury of possession of cocaine with intent to supply.