Drugs: admissibility of third party's conviction.
R v Warner
The principle of law involved in R v Warner and others (1992) The Times, 16 November, related to the admission of evidence under s.74 of the PACE Act 1984 of convictions of eight persons who were observed by police to enter the house of a drug dealer.
During police observations of Jones's house which took place over eight days, a great number of people were seen visiting the address, many of them being inside for only a minute or two before leaving.
Many of them would walk past the front door, knock twice on the window and then be admitted. The defendants would then go off in Warner's car returning fifteen to twenty minutes later.
It was pointed out that that was consistent with the accounts of two witnesses, which indicated the defendants going to replenish their supply from the stash. Eight of the people noted by the police had previous convictions for possession or supply of heroin
The principal ground of appeal related to s.74 of the PACE Act 1984.
S.74 of the Police and Criminal Evidence Act 1984 provides:
"(i)In any proceedings the fact that a person other than the accused has been convicted of an offence by or before any court of the United Kingdom....shall be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that that person committed that offence, whether or not any other evidence of his having committed that offence is given."
Prior to the 1984 Act in accordance with Hollington v Hewthorn [1943] KB 587, evidence that a person other than the accused had been convicted of an offence was not admissible for the purpose of proving that that person committed the offence. The Criminal Law Revision Committee recommended in its 11th Report that the rule should be abolished. S.74(1) and (2) followed those recommendations in regard to the convictions of persons other than the accused. S.11 of the Civil Evidence Act 1968 is relevant in civil proceedings.
S.74 of PACE has been considered in four cases in the Court of Appeal: R v O'Conner (Peter) Stephen) (1987) 85 Cr App R 298; R v Robertson [1987] QB 920; R v Kempster [1989] 1 WLR 1125; and R v Boyson [1991] Crim L.R. 274. Those four cases were all concerned with the convictions of co-accused. The present appeal appeared to be the first case involving the conviction of third parties.
In Robertson, supra, Lord Lane said, "section 74 is a provision that should be sparingly used. There will be occasions where, although the evidence may be technically admissible, its effect is likely to be so slight that it will be wiser not to adduce it. This is particularly so where there is any danger of a contravention of s.78 of the Pace Act 1984."
It should be borne in mind that proof of the conviction under s.74 simply avoided the necessity of calling the parson in question to say that he had committed the relevant offence. It was a convenient way of getting that evidence before the jury.
What was the issue? The crown submitted that the jury could draw the inference from all the evidence that that some or all of those persons who attended at the premises did so for the purposes of obtaining heroin from the defendants, and not simply for a social chit-chat or other innocent purpose.
It was relevant to that issue to show that some of those who attended were or had been heroin users or dealers and that the defendants were interested in the attendance of such persons at the premises in the circumstances described by the police. It could be inferred from the fact of the convictions that such persons were or had been users or dealers in heroin.
The defence submitted that the evidence related solely to the state of mind of the persons attending the premises and was not relevant to the actions or intentions of the defendants. He relied on R v Kearley [1992] 2 WLR 656; 56 JCL 389, where the House of Lords decided that evidence of telephone calls and visitors in person to the appellant's house asking for drugs has been irrelevant or inadmissible as hearsay.
In the present case what was sought by the proof of previous convictions for drug offences of the persons visiting the house was to establish the character of the people whom the defendants and their accomplices were letting into the house. No element of hearsay was involved.
The primary evidence was that of two witnesses who had spoken to the fact that the defendants were engaged in the business of the sale of heroin and their method of working The observations of the police confirmed so far as possible the evidence of those two witnesses.
What the police were observing was the actual carrying on of a business by the defendants and the facts from which it could be inferred that actual sales were taking place involving both the visitors and the defendants.
The character of the visitors, as demonstrated by their convictions, was relevant to provide supporting evidence of the character of the transactions and of the purpose for which the defendants were letting the visitors into the house and, apparently, doing business with them.
Kearley ,supra, was not such a case. There, the persons who had gone to the door of the house or telephoned did not speak to or deal with any of the defendants. They dealt with the police who by then were occupying the house.
Therefore what those persons had said could only be used, on the analysis of the majority in the House of Lords, as hearsay evidence to prove facts which were implicit in what those persons had said or what was their state of mind at that time. It was that evidence which was ruled either to be inadmissible or irrelevant.
In the present case, the prosecution was not calling evidence of what any of the callers at the house said: therefore the only question was one of relevance. The evidence was not irrelevant to the question of what was the nature of the transactions which were taking place and in which the defendants were taking part.
Dismissing the appeal, the Court of Appeal emphasised that the Judge should have told the jury what inference they might draw from the evidence and, that the defendants were not to be found guilty simply because of their association with such people. Their convictions for conspiracy to supply a class A controlled drug stood.
Rob Jerrard