Lumsden, R v

A trial judge may invite a jury to use its common sense and draw an inference from facts proved in evidence. The direction is permissible where it identifies an available inference rather than inviting speculation, and leaves the jury to decide whether to draw it.

An unfortunate placement of an otherwise proper comment will not render a conviction unsafe. Even if a comment is improper, the appellate court must assess the safety of the conviction on the facts and circumstances as a whole.

The appellant was convicted at Aylesbury Crown Court of possessing diamorphine with intent to supply. He had earlier pleaded guilty to simple possession of diamorphine. The recorder imposed a total sentence of five years’ imprisonment.

Police found 58 wraps of heroin in a bag beneath the appellant’s sofa-bed. A piece of foil containing burnt heroin residue, of which he admitted possession, was found nearby. The appellant denied knowing of the bag.

On appeal, he contended that the recorder’s closing comment about whether a drug dealer would leave valuable drugs under another person’s bed invited speculation and rendered the conviction unsafe. He also renewed his application for leave to appeal against sentence on the ground that five years was manifestly excessive.

1. The appeal against conviction was dismissed. The recorder’s comment concerned a fact proved in evidence: the bag containing 58 wraps had been found beneath the appellant’s bed, close to heroin residue which he accepted was his. The appellant lived alone in a small one-bedroomed maisonette. It was open to the jury to infer that, if the appellant’s account were correct, a person involved in drug dealing would have left a valuable and packaged supply there without his knowledge.

2. The distinction between inference and speculation may be fine. Here, however, the recorder did not invite speculation. He properly identified an obvious possible inference arising from the proved circumstances and expressly left its acceptance to the jury. The comment was therefore within permissible bounds.

3. The timing of the comment, at the end of the summing-up, was unfortunate. The summing-up would have lost nothing without it, and any such observation would better have appeared elsewhere. That criticism did not affect the result. Even if the comment or its position had been improper, the conviction remained safe in light of the proximity of the package to the admitted heroin residue and the strength of the circumstantial case.

4. The renewed application for leave to appeal against sentence was refused. The five-year sentence was plainly within the proper bracket. A pre-sentence report would have added nothing, there was no credit for a guilty plea on the count of possession with intent, and the personal mitigation did not justify a lower bracket. The appellant’s numerous previous convictions, including for drug supply, reinforced that conclusion.

• Court of Appeal (Criminal Division): By [2011] EWCA Crim 1707, dismissed the appeal against conviction and refused the renewed application for leave to appeal against sentence.

• Crown Court at Aylesbury: The appellant pleaded guilty on 9 September 2010 to simple possession of diamorphine. On 2 December 2010 he was convicted of possession of diamorphine with intent to supply and received a total sentence of five years’ imprisonment.