R v Reece David O’Flaherty

Realistic advice by defence counsel, and a decision not to intervene repeatedly during evidence, do not demonstrate defective representation without identified misconduct or missed opportunities that could have affected the trial.

Indictments may properly be joined where offences form a sufficiently connected series of similar-character offences and the jury receives clear directions to consider each count separately. A proposed expert examination adds nothing where the relevant evidence is already agreed and the prosecution bears the burden of proof. Clear, balanced directions and a balanced summing-up do not establish actual or apparent judicial bias. Where no ground makes the conviction arguably unsafe, applications for fresh evidence, bail and an extension of time should be refused.

The applicant was convicted at Leeds Crown Court of possessing cocaine with intent to supply and sentenced to 54 months’ imprisonment. He had been acquitted of a separate count involving diamorphine. The two indictments had been joined and tried together.

He renewed his application for leave to appeal against conviction, seeking an extension of 59 days, bail, permission to call expert evidence and a representation order. He alleged ineffective assistance by counsel, improper joinder, failure to obtain expert evidence about his phone, and actual or apparent bias by the trial judge. The central issues were whether any ground rendered the conviction unsafe and whether the associated applications should be granted.

1. Defence representation. The advice given before trial was realistic and accurate, particularly in light of the prosecution’s offer to accept a plea to a lesser offence. Counsel was not permitted to speak to the applicant while he was giving evidence under oath. Her decision whether to intervene was a matter of professional discretion. No inappropriate questioning or judicial behaviour requiring intervention was identified, and repeated confrontation with the judge could have hindered rather than assisted the defence.
2. Joinder. The two offences had a sufficient nexus. Both concerned large quantities of Class A drugs found at properties connected with the applicant, formed part of a series of similar-character offences, and involved the same essential defence that the applicant was not knowingly involved. The differences in drug, location, date and defendants did not create unfairness beyond the probative value of the evidence. The judge gave clear written directions requiring separate consideration of the counts and explaining the limited coincidence and propensity uses of cross-count evidence. The acquittal on one count supported the conclusion that the directions had been followed.
3. Fresh evidence. Expert evidence about the contents of the applicant’s phone could not assist. The prosecution bore the burden of proof, and the fact that forensic examination had revealed no messages relating to drug supply had already been put before the jury as an agreed fact. The proposed evidence therefore would not afford any ground for allowing the appeal under section 23(2)(b) of the Criminal Appeal Act 1968.
4. Bias and disposition. The exchanges concerning the unexpected naming of an alleged custodian did not demonstrate actual or apparent bias. The applicant suffered no prejudice on that issue because it related to the count on which he was acquitted. The directions and summing-up were clear, balanced and legally accurate, and the evidence was sufficient to support the conviction.
5. There were no arguable grounds of appeal. The extension of time was not in the interests of justice, and the bail application consequently failed. The renewed application for leave, the extension, fresh evidence, bail and representation order were all refused.

1. Court of Appeal (Criminal Division) refused the renewed application for leave to appeal against conviction and refused the applications for an extension of time, bail, fresh evidence and a representation order: [2024] EWCA Crim 964.
2. Crown Court at Leeds convicted the applicant of possession of cocaine with intent to supply, acquitted him of a separate count, and sentenced him to 54 months’ imprisonment.