IN THE WOOD GREEN CROWN COURT
REGINA v.GARY SIMMONS and LEON TOGHER
INTRODUCTION : ADVICE ON EVIDENCE
1. On the 2nd April 2004, both Gary Simmons and Leon Togher were committed to Wood Green Crown Court under s.51 of the Crime and Disorder Act 1998. The Judge also directed that the prosecution evidence be served by the 7th May 2004 and the Plea and the Directions Hearing be listed for the 21st May 2004. Moreover, it is clear from the papers before me that both Mr. Simmons and Mr. Togher are charged with robbery. In addition, Mr. Simmons is further charged with the possession of an offensive weapon, whereas Mr. Togher is charged with the possession of a Class A drug. All the alleged offences arise out of events that took place on the 1st April 2004.
2. I am asked to consider the appropriateness of the current charges and draft the indictment accordingly. I am further instructed to advice on the evidence and any necessary steps that need to be taken prior to trial.
The CODE TESTS:
3. Crown Prosecutors will have to take into account the Code for Crown Prosecutors due to the decision to prosecute both Mr. Simmons and Mr. Togher against each charge. There are two tests namely: 1) the evidential test and 2) the public interest test. The Crown Prosecution Service will continue with a prosecution as the case has passed both criteria. Clearly, there is no evidence before me, which contradicts this.
4. At about 11p.m. on 1st April 2004, Miss Finneke Jansson and her flat mate, Mary Fielding, were returning home after watching a film at a cinema in Muswell Hill. They were attacked by two men who had been followed them from the petrol station in Fortis Green Road. After they had only gone about 20 metres they heard two men running up behind them. Suddenly one of the men was pulling at Miss Jansson’s handbag, which she had been carrying on her left shoulder and the other one was struggling with Miss Fielding trying to take her rucksack. Once the man had grabbed their bags, they both ran off in the direction of Muswell Hill (this incident gives rise to Count 1 of Simmons and Togher’s on the indictment).
5. The police arrived shortly afterwards and took descriptions of the two men. One of the police officer then circulated the descriptions via his personal radio. Two men fitting the descriptions had been detained near the roundabout in Muswell Hill, where the duty police officers searched both of the men, namely Gary Simmons and Leon Togher. By searching Simmons both a lock-knife in his left trouser pocket (which gives rise to Count 2 of Simmons) and 3 * £10 = £30 were found along the inside of his shoe. Also during the search, Mr. Togher was found to have in his possession some brown powder in a small zip-lock plastic bag under his arm, which was kept in place by two belts: one around his chest and another around his shoulder, which gives rise Count 2 of Togher. Later, a section 18 search of his home was carried out and a zip-lock plastic bag about 10cm by 10cm was found in the bedroom in a set of drawers next to the bed.
SUMMARY OF THE ADVICE:
6. As the evidence stands at present, I think that the prosecution case is extremely weak. In relation to Count-1, against both Mr Simmons and Mr Togher on the indictment, is appropriate subject to the conclusive identification evidence. Count-2 against Mr Simmons, without further descriptive evidence of the lock knife, there is doubt as to whether the lock-knife is an offensive weapon and therefore whether it is an appropriate charge. However in relation to Count-3, this charge would be appropriate due to further evidence in context to the drug paraphernalia. I am finally very concerned about the admissibility of some of the evidence and a number of further enquiries that need to be made to clarify evidential ambiguities. For the purposes of this advice I propose to deal with the three Counts in turn.
COUNT 1 (Robbery):
7. Mr. Simmons and Mr Togher are charged with robbery arising out of the incident on the street on the 1st April 2004; Miss Fielding was violently attacked by Mr. Simmons from behind in order to steal her rucksack whereas Mr Togher attacked Miss Jansson from behind in order to steal her handbag. I have no doubt that in the incident of using force due to steal bags the actus reus of this offences have been committed, and in the absence of returning the bags mens rea should not be significantly in doubt.
8 In relation to Miss Jansson’s handbag, it appears there is no information before me to draw a conclusion on the strengths and weaknesses of the case either from the witness statement or from the interview. I need further information on the items, which were inside the bag, size of the bag and the confirmation whether any missing handbag was found during the course of the investigation particularly in that area where the offence took place. However, I think that identity will be a central issue in this case and in relation to this the Crown has difficulties, as outlined in below Paragraphs. If the state of the evidence relating to the identification is not conclusive, I would advise that this count should be dropped.
9. The custody record reveals that Miss Fielding was shown, on her arrival at the Wood Green Police station, a black purse exhibit reference SM/1 which contained 1 * Lloyds TSB debit card and 1 * Visa Card, and was identified as hers, found in the front gardens along Queen’s Avenue. Moreover, I do not know whether these items were checked for fingerprints. If not, it should be checked whether they hold any fingerprints. Further, the duty officer removed 3 * £10= £30 from the inside of Mr. Simmons’ shoe exhibit reference MF/2 during the course of the search. Does this mean that Miss Fielding identified these notes as her money? Nothing was said in the witness statement. Clarification of this point is needed: without it, as the evidence stands, it is very hard to implicate Simmons on this count.
10 Mr. Simmons and Mr. Togher have been denied a fair identification procedure and the papers do not say why. Breach of PACE Code of Practice D para 2.3? Where an identification parade has not been held (and the failure to hold a parade is not justified by the exceptions to the rule laid out in 2.4, 2.6, etc) then there is a breach of the Code. See R v. Forbes (2001) 2 WLR 1. However, application under s.78 PACE 1984 to exclude the identification evidence is unlikely to be successful despite the breach of Code D: it is likely that the magistrates/Judge will find that the circumstances in which the street ID was obtained (although in breach of Code D) were not such that the admission of the evidence would have an adverse effect on the fairness of the proceedings.
11. WHAT is the quality of the evidence of identification? Turnbull (I977) QB 224
- At night, in dark conditions
- ID in the street ‘fleeting glimpse’? Most of the time they were looking at their bags.
- View would have been obstructed by their struggling for bags
- View in the street would have been the side/ back of robbers.
- ID at the roundabout – at a distance (need to find out how far) it seems that Miss Jansson was confused about the identity of the person who attacked her; therefore she asked Miss Mary Fielding to confirm, who was also not sure about the attacker of Miss Jansson.
- They had no opportunity to see their face during the struggle, which took place at night
- At present insufficient evidence as to the quality of the street lighting from the petrol station in the High Street.
12. Miss Jansson and Miss Fielding have further indicated in their statements that a man, namely Terrence Wilmslow, had observed the attack and called the police to rescue them. A statement from that person is required, dealing with some relevant matters:
- What were the circumstances in which he made the observation: how far was he from the attackers when he first saw them and how far from the attack when he observed it? What was the duration of these observations?
- How soon during the sighting did he call to the police
13. With regards to the petrol station, there appears to be an in-store video on which Mr. Simmons and Mr. Togher might have appeared. The staff of the patrol station might have seen them or might be able to recognize them; therefore a statement from them would be helpful to prove the identification, subject to availability.
14. Given the location of the incident I wonder whether enquiries have been made to establish whether there were any CCTV recordings made on that evening, which might assist in the identification of the attackers coming from the petrol station: no mention of this is made in my instructions. It would also be desirable to have a street plan showing the layout of the High Street in Muswell Hill. If the state of the evidence relating to the identification cannot be improved I advise that this count should be dropped
COUNT 2 (Offensive Weapon):
15. The evidence on this count comes from the duty officer, Michael Finn who carried out a search on Mr. Simmons, having arrested him for robbery. The issue on this count is not one of identification, as with Count 1, but rather as to whether the lock-knife allegedly found on Simmons had been ‘planted’ on him by the duty officer (going by the defendants interview & his denial of involvement in the robbery).
16. The duty officer describes stopping Simmons in southern pavement in the direction of the Muswell Hill Broadway. He says that he asked Simmons about his involvement in a robbery and then arrested him on suspicion for robbery after being positively identified by the witness. He next proceeded to search Simmons for evidence relating to the offence he had been arrested for and any other offences. The duty officer states that he found a lock-knife in Simmons’ left trouser pocket. He was re-arrested for having possession of an offensive weapon
17. The article found is described by the duty officer as a ‘lock knife’, which Mr. Simmons stated that he used it for fishing. If this case is to proceed further details need to be clarified namely whether it is a flick-knife or whether it is just simply a lock-knife. Moreover, all knives are not offensive weapons per se (Simpson, where it was held that not all sheath knives are offensive weapons; Patterson v. PC (1984) where it was held that a lock knife is not an offensive weapon. Therefore, I think that a lock knife is not an offensive weapon under s.1 Prevention of Crime Act 1953, but is an offence under s139 (1) Criminal Justice Act. Although I need more information about the description of the knife from Michael Finn to advice both whether the lock-knife is offensive weapon and whether he should be charged under s139 (1) Criminal Justice Act instead of s.1 Prevention of Crime Act 1953.
18. Defence further may argue that the possession of the lock-knife is for fishing, as Mr. Simmons has already denied his involvement in the robbery, the item in question being produced for a specific and innocent purpose, so it is not an offensive weapon. In the absence of further information, there is doubt as to whether the lock-knife is an offensive weapon because it is primarily down to the matter of fact to decide. This therefore is a significant gap, which must be filled by the people concerned; otherwise this count should be dropped, as it cannot be sustained on the current evidence.
Legality of Finn’s Search of Simmons:
19. I think that Finn’s powers of search as a constable following PACE 1984, s78the arrest under s.32, Police and Criminal Evidence Act 1984, for evidence relating to the offence he had been arrested for and any other offences, has satisfied reasonable grounds to justify the search. It further can be justified as an appropriate search under s 1 PACE in establishing that Finn had reasonable grounds for suspecting that he will find stolen goods or prohibited articles.
COUNT-3 (Possession of a Controlled drug):
20. It appears to be necessary to examine the appropriateness of the legality of Baily’s search to Togher before commencing the detailed analysis of this count.
Legality of Baily’s Search:
21. The duty officer Mr. Baily I think had conducted an improper search of Mr. Together following arrest under s.32 (4), PACE 1984, owing to the removal of his jacket and shirt, leaving him just wearing a T-shirt underneath, in public, because Mr. Baily was only authorized to remove his outer jacket and certainly not his shirt. Therefore, it is arguable whether the plastic bag containing a brown powder, which was found on his person, is admissible. The court may primarily exclude this evidence, by virtue of discretion under, due to the adverse effect with the fairness of the proceedings that the court ought not to admit it. It is further noted that if the judge fails to exercise his discretion under s.78 at all or does so but in a Wednesbury unreasonable manner, the Court of Appeal will intervene with the decision (Associated Provincial Picture House Ltd v. Wednesbury Corporation (1948) and where the Court of Appeal does intervene, it will exercise its own discretion: Khan (1997) Crim LR 508.
22. It can be arguably said that the evidence obtained by Mr. Baily, by an illegal search would be admissible in common law, (Jeffrey v. Black) (1978). The test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained: Kuruma, Son of Kaniu v. The Queen (1955) AC 197.
Possession of a Brown Powder:
23. Mr. Baily found, following a search, a brown powder in a small zip-lock plastic bag under Mr. Togher’s arm which was kept in place by two belts: one around his chest and another around his shoulder. As soon as he examined the bag, he (rightly) suspected that it was containing brown powder, and asked Mr. Togher ‘what’s this? He did not caution him and his answer to his question about it is therefore probably inadmissible under Code C (para C 10.1).
24. Mr. Togher admitted that the zip-lock bag containing a brown powder was his and was heroin for his personal use. Moreover, there is not sufficient information about how much Mr. Togher smokes himself or how he uses it or whether he had already used any of it or how long he expected it to last or what quantity of heroin was in the bag. This is a significant gap, which must be filled by the people concerned
25. I want to question the evidence of the brown substance being. Mr. Baily describes finding a brown powder, but does not state what he did with it: it is not exhibited and he makes no mention of handing it over to anyone else, nor do either of the police officers, make mention of it. However, a ‘brown powder’ appears in the interview, again without any linkage by way of transmission evidence. I should be grateful if Mr. Baily would make a further statement saying what happened to the bag containing brown powder and exhibiting it and stating how much was there; otherwise in my view there is insufficient evidence to justify the charge.
Effectiveness of S. 18 Search
26. Mr. Meeton and Mr. Harris searched the premises, which in my opinion were lawful search under (PACE 1984, s. 18(1)), occupied or controlled by Mr. Togher who is under arrest for a particular offence, as the duty officers had reasonable grounds for suspecting that there was on the premises evidence relating to that offence or to some other arrestable offence which is connected with or similar to that offence. Still, some questions remain to be answered to justify the search. For example, the question would arise in relation to the search under S.18 (1) PACE 1984, the relevancy of authorization in relation to Count 2, as the first search was rendered improper which Mr. Baily carried out. I need further information on the above questions to justify the search.
27. On entering the premises the police officer Mr. Meeton found a zip-lock plastic bag about 10cm by 10cm, which contained 23 wraps of paper of the brown powder (DM/1), in a set of drawers next to the bed in the bedroom. At the back of the drawer he found a set of electronic scales (DM/2) and a letter addressed to Mr. Togher (DM/3), from a solicitors firm, bearing the names and telephone numbers of suspected involvement in drug dealing on the back of the letter.
28. Mr. Togher denied in the interview that the heroin and the scales were found at his address, and added that the police had planted it. Moreover, the prosecution evidence against him is that 23 wraps of paper containing the brown powder were found in his bedroom along with the scales. None of the tools of the trade was found except scales: no small plastic bags, no cling film, no knives with stains, nothing packaged. At best it can be suggested that he was about to go into the drugs business but had not yet bought the necessary kit, or that he was somehow a wholesaler himself. The Crown cannot point to any evidence that he has benefited from the proceeds of drug trafficking. Therefore, the only evidence against him is what was found in his bedroom.
29. Concerning the set of electronic scales, due to the admissibility for the offence of possession of drugs with intent to supply, evidence is arguably relevant to the question of intent may fall to be excluded because of its prejudicial effect in indicating dealing in drugs generally. Thus evidence of the possession of weights and scales on which there are traces of the drug in question will be admitted (Batt 1994 Crim LR 592)
30. With regards to the letter, it is a legally privileged document due to the nature of its contents and so the document will not be admissible in evidence. Although, Mr. Togher admitted that this is his letter, not the manuscript on the reverse. On the other hand, the letter can be used at trial in establishing that the information accidentally has been made available to the prosecution so the accused’s privilege is lost. However, the court will consider whether the evidence has been obtained unfairly and should therefore be excluded under s78 of the PACE 1984 (R v. Cottrill).
31. Subject to the additional evidence requested above, I should be grateful if Mr. Meeton would make a further statement including, how much brown powder in weight was there, the record of everything that was found in the bed room search book and check whether there are fingerprints on the scales.
ACTION TO BE TAKEN:
32. It will be apparent from the points made above that there are a number of actions which I advise to take to the CPS. In particular, I would ask that:
1. A street plan showing the layout of the High Street in Muswell Hill
2. It should be checked whether there were any fingerprints found on the credit cards (Lloyds TSB and Visa).
3. Whether Miss Fielding identified the recovered money as hers?
4. Whether the recovered money was used to take any fingerprints
5. More information is required about the description of the knife from Michael Finn
6. Further information from Miss Jansson on the items, which were inside the bag and size of the bag.
7. Information requires about how much heroin Mr. Togher smokes himself or how he uses it or whether he had already used any of it or how long he expected it to last or what quantity of heroin was in the bag.
8. Additional statement from Mr. Baily dealing with brown powder.
9. Additional statement from Mr. Meeton stating how much brown powder in weight was there, the record of everything that was found in the bedroom search book and whether there were any fingerprints visible on the scales.
- A statement from Mr Wilmslow is required, dealing with some following matters:
a. What were the circumstances in which he made the observation: how far was he from the attackers when he first saw them and how far from the attack when he observed it? What was the duration of these observations?
b. How soon during the sighting did he call to the police
11. Statements from the staff at the petrol station about the identity of the suspects.
12. Whether Mr. Simmons and Mr. Togher appeared in the petrol station’s CCTV.
13. Any CCTV recordings made on that evening in the area, which might assist identifying the attackers coming from the petrol station
33. I would ask those who instruct me to contact me again once the further enquiries I suggest have been made, so that I may have the opportunity to review the state of the evidence. If it cannot be improved I do not think that there is a realistic prospect of conviction on any count, and the matter should not be pursued. If I can assist further please do not hesitate to contact me.
20th May 2004.