Johnson, R. v

Where an offence requires proof of a specific intent, the trial judge must consider whether a realistically available lesser alternative should be left to the jury. The need depends on the evidence and fairness of the particular case; there is no automatic requirement.

A summing-up must also identify the evidence capable of proving the required intent and any material limitations on that evidence. A conviction is unsafe where the jury may have treated equivocal expert or forensic evidence as supporting intent without adequate assistance, particularly where an unrepresented defendant may have had difficulty presenting the point.

The appellant was convicted at the Crown Court of possessing crack cocaine with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act 1971. Crack cocaine was found in the pocket of his jacket during a search of his flat while he was abroad. The police also found scales and a chopping board with traces of cocaine.

The appellant, who was unrepresented at trial, denied knowledge of the drugs. He said that other people had access to the flat while he was away. The jury convicted him and he received three years’ imprisonment.

On appeal, the issue was whether the Recorder’s summing-up made the conviction unsafe by omitting the alternative of simple possession and by failing to assist the jury on the evidence relevant to an intention to supply.

1. Appeal allowed; conviction quashed. The court could not be satisfied that the jury had properly understood the limitations of the evidence relied on to establish possession and, especially, an intention to supply.

2. Applying R v Coutts [2007] 1 Cr App R 6, R v Foster [2008] 1 Cr App R 38 and R v Hodson [2009] EWCA Crim 1590, there is no automatic requirement to leave a lesser alternative verdict. The judge must assess the evidence and fairness of the individual case. Where the lesser offence is realistically open on the evidence and avoids forcing the jury to choose between conviction of the more serious offence and acquittal, it should be left.

3. In this case, simple possession should have been left as an alternative, or the jury should at least have been assisted on the evidential basis for inferring an intention to supply. There was no identified evidence about the amount a user might retain for personal use. Nor was the significance of the amount capable of being divided into 37 rocks explored.

4. The traces on the scales and chopping board were of cocaine, not crack cocaine. The jury could therefore have concluded that those traces did not support an inference that the appellant possessed or intended to supply the crack cocaine found in his jacket. They could also have supported his account that other people had conducted drug activity in the flat.

5. The court also noted the absence of a clear direction about the appellant’s self-representation. Consistently with R v De Oliveira 1997 Crim LR 600, it is generally desirable to remind a jury that an unrepresented defendant may have difficulty presenting a defence. Taken together, the deficiencies in the summing-up rendered the conviction unsafe.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the conviction: [2013] EWCA Crim 2001.
• Crown Court: The appellant was convicted by a jury on 11 May 2012 of possession of crack cocaine with intent to supply and was sentenced on 8 June 2012 to three years’ imprisonment.