Mohammed, R. v

Evidence suggesting criminal conduct other than that charged must be assessed separately for direct relevance and, where applicable, as propensity evidence. A court must properly address the resulting risk of unfair prejudice under Police and Criminal Evidence Act section 78 and Criminal Justice Act 2003 section 101(3).

A direction to the jury will not cure the admission of highly prejudicial evidence where the case has been permitted to proceed on the erroneous basis that all of it was directly relevant. A conviction is unsafe if the appellate court cannot be sure that such evidence did not affect the jury’s reasoning or verdict, even where there was otherwise substantial evidence of guilt.

Expert evidence about drug markets and the customary conduct of users and dealers is admissible where it concerns matters outside ordinary jurors’ knowledge and is founded on significant expertise.

The appellant was convicted at Aylesbury Crown Court of possessing cannabis with intent to supply and was sentenced to 12 months’ imprisonment. The prosecution relied on divided bags of cannabis, mobile telephones, scales, papers described as a dealer’s list, and cash found more than two months later at another address.

The defence maintained that the cannabis was for personal use. It challenged the admission of the cash and the list under Police and Criminal Evidence Act section 78, and sought to exclude expert evidence about cannabis users and dealers. On appeal, the central issue was whether entries apparently concerning heroin, and the cash evidence linked to them, had rendered the conviction unsafe.

1. Appeal allowed. The conviction for possessing cannabis with intent to supply was quashed as unsafe. The Crown’s application for a retrial was refused because, in the circumstances and having regard to the count charged, a retrial would not serve the public interest.
2. The Recorder correctly admitted the expert evidence. Evidence about cannabis markets and the customary practices of users and dealers was outside the ordinary knowledge of jurors. It was relevant and was based on the witness’s substantial expertise.
3. The papers were relevant as documents capable of supporting an inference of cannabis dealing, particularly because some names corresponded with contacts on the seized telephones. However, entries marked “H”, with figures indicative of heroin dealing, did not directly concern the sole charge of possession of cannabis with intent to supply. They could only potentially have been admitted as propensity evidence under section 101(1)(d) of the Criminal Justice Act 2003.
4. The Recorder had admitted the entire contents of the lists on the mistaken footing that they were all relevant. He had not separately considered redaction or the unfair-prejudice balance required by Police and Criminal Evidence Act section 78 and section 101(3) of the Criminal Justice Act 2003. The cash evidence aggravated the prejudice because the Crown relied on the apparent heroin entries to support an inference that the cash derived from drug dealing.
5. The summing-up direction did not cure that prejudice. Although there was substantial admissible evidence, the court could not be sure that the evidence of alleged contemporaneous heroin dealing had not affected the jury’s reasoning or the verdict.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed the conviction as unsafe, and refused the Crown’s application for a retrial.
• Aylesbury Crown Court: The appellant was convicted by a Recorder and jury of possessing cannabis with intent to supply and sentenced to 12 months’ imprisonment.