Foulger R. v

Evidence which merely organises raw communications data into charts, maps and summaries, without expressing an opinion, is not expert opinion evidence. A juror employed by the police need not be discharged where proper enquiries establish impartiality, the juror has no relevant knowledge or connection, and police evidence is not disputed. A maximum sentence remains available for an offence of the utmost gravity. It is not precluded merely because more serious hypothetical cases can be imagined.

At Southampton Crown Court, the three applicants were convicted of conspiracy to steal a container load of cigarettes from a bonded warehouse. The prosecution relied principally on telephone, cell-site and ANPR evidence to establish a planned, professional theft.

Foulger renewed his application for leave to appeal against conviction. He challenged the use of charts and summaries prepared by a civilian police data analyst, the retention of a police community support officer on the jury, and the judge’s conduct and summing-up. Burgess and Badland renewed applications for leave to appeal against sentence. The central issues were the safety of Foulger’s conviction and the proportionality of the sentences imposed for a high-value, planned theft.

1. Foulger’s renewed application for leave to appeal against conviction was refused. The civilian analyst had not been called to give expert evidence. Her function was to place raw telephone and cell-site material into an accessible form through charts, maps and summaries. She expressed no opinion on that material. The trial judge was therefore entitled to admit the evidence, including in the context of the objection under section 78 of the Police and Criminal Evidence Act.

2. The court rejected the complaint about the police community support officer who sat as a juror. The trial judge had made suitable enquiries and established that the juror knew nothing of the investigation and had no relevant connection with those involved. Police credibility was not a live issue. This materially differed from Khan v United Kingdom [2012] ELR 295, where the police-officer juror had personal knowledge of a police witness and the police evidence was disputed. There was no error in retaining the juror or the jury.

3. The complaints of judicial bias and an unbalanced summing-up also failed. The judge had directed the jury to disregard any impression conveyed by words or demeanour, and the summing-up properly reflected the strength of the prosecution case. The conviction was safe.

4. Badland’s renewed application for leave to appeal against his seven-year sentence was refused. Applying the guidance in Bright [2008] 2 Cr.App.R (S) 102, the court held that a maximum sentence may be appropriate for an offence of the utmost gravity even though still more serious hypothetical offending can be conceived. Badland was the organiser of a highly planned, high-value theft and had repeatedly committed analogous serious offending despite previous sentences.

5. Burgess’s application was allowed. His role, less serious record, family responsibilities and the totality of the material justified a sentence of four years and six months rather than five years.

• Court of Appeal (Criminal Division) — Foulger’s renewed application for leave to appeal against conviction was refused. Badland’s renewed application for leave to appeal against sentence was refused. Burgess was granted leave to appeal against sentence and his sentence was reduced to four years and six months.

• Crown Court at Southampton — On 3 November 2011, the applicants were convicted of conspiracy to steal. Foulger and Burgess were each sentenced to five years’ imprisonment and Badland to seven years’ imprisonment.