Smith, R v

A tactical decision by trial counsel not to seek exclusion under section 78 of PACE 1984 does not render a conviction unsafe where the application was unlikely to succeed and the alleged deficiencies could properly be assessed by the jury.

On an application to adduce fresh evidence under section 23(2) of the Criminal Appeal Act 1968, evidence which adds nothing material, or is not capable of belief, cannot provide a basis for allowing the appeal. A sentence within the applicable guideline range is not excessive merely because the judge gives effect to personal mitigation after assessing aggravating features of the offending.

The applicant was convicted after a jury trial in the Crown Court at St Albans of possessing cocaine with intent to supply and of two counts of possessing criminal property. He received four years and six months’ imprisonment for the drug offence, with no separate penalty for the cash counts.

After the single judge refused permission, he renewed applications to appeal both conviction and sentence. The conviction grounds alleged that trial counsel should have sought exclusion of alleged dealer lists, that a police CAD log had not been used, and that his former partner and sister should have been called as witnesses. He also sought to adduce their evidence afresh. The central issues were whether those matters undermined the safety of the convictions and whether the sentence was excessive or wrong in principle.

1. Disposition. The court declined to receive either item of proposed fresh evidence and refused the renewed applications for permission to appeal against conviction and sentence.
2. The decision not to seek exclusion of the alleged dealer lists under section 78 of PACE 1984 was a proper tactical decision within trial counsel’s discretion. A voir dire would have enabled the principal prosecution witness, alleged to be dishonest, to give a preliminary account before the jury heard him. In any event, an exclusion application was most unlikely to succeed. The recording failures were not sufficiently serious to prevent the jury considering the documents, and the provenance of the lists and the officer’s truthfulness were matters for the jury.
3. The CAD log added no material assistance. It was available to counsel, recorded only limited information transmitted over police radio, and its omission of drugs and dealer lists had already been accepted in the officer’s evidence.
4. Applying the statutory questions under section 23(2) of the Criminal Appeal Act 1968, the former partner’s evidence was capable of belief but added nothing. The sister’s assertion that she had lent the applicant £1,353 in cash was not capable of belief. The applicant had also deliberately not identified her before trial as the source of the money and had instructed that no witness summons be sought. An adjournment would in any event have been refused. There was therefore no arguable basis for questioning the safety of the convictions.
5. The Recorder was entitled to treat the applicant as having a significant role at category 3 level under the relevant sentencing guideline. He could take account of the dealer lists, the packaging of the drugs and the jury’s findings on the cash, then allow for mitigation after assessing those features. The final sentence of four years and six months was neither excessive nor wrong in principle.

• Court of Appeal (Criminal Division) — renewed applications for permission to appeal against conviction and sentence refused: [2015] EWCA Crim 1123.
• Crown Court at St Albans — following a jury trial, the applicant was convicted of possession of a Class A drug with intent to supply and two counts of possessing criminal property. He was sentenced to four years and six months’ imprisonment on the drug count, with no separate penalty on the other counts.