R v Ismond 2023


A car being driven by a male, M, was stopped by the Police and a holdall bag (referred to as "layer one") containing self-sealing plastic bags containing over 1,500 wraps of heroin and cocaine ("layer two") and three further layers of packaging of drugs (five layers in total).
 
M pleaded guilty to two counts of possession with intent to supply Class A drugs contrary to section 5 of the Misuse of Drugs Act 1971. Samples of the drugs and packaging were forensically analysed and seventeen finger and palm prints matching IS were found across six of the self-sealing plastic bags containing drugs in layer two. Prints and DNA belonging to a co-accused, T, were also found on two of the bags, including one in layer two which also contained IS’ prints. T’s DNA was also on the knot of one of the bags in layer three. There was no forensic evidence linking T with the other layers of packaging. There was no evidence to link either IS or T with M.

In interview, IS made no comment and then subsequently produced a prepared statement in which he denied the allegation of being concerned in the supply of Class A drugs and stated that he was unaware of how his fingerprints came to be found on the packaging. 

IS and T were each charged with two counts of being concerned in the supply of Class A drugs. 

The prosecution case was that IS was either directly involved in the packaging of the drugs or that he was an intermediate courier between those who prepared those deals and M. The defence case was that the prosecution could not prove to the criminal standard that IS’s fingerprints were on the bags at a time when the wraps of heroin and cocaine were being put into them, or after they were put into them. It was an agreed fact that seventeen of IS's fingerprints had been found on layer two and that it was not possible to say precisely when those fingerprints had been left.

Both IS and T unsuccessfully submitted there was no case to answer. The two were convicted.
 
IS appealed his conviction on two grounds:
 
  1. The judge ought to have acceded to the submission of no case to answer.
     
  2. The judge failed to give appropriate directions in the summing-up to the jury as to how they were to treat the fingerprint evidence. It was asserted that the judge should have directed the jury that the evidence would not enable them to say whether the drugs were in the bags at the time they were handled by IS. This was argued to be key information for the jury. 
 

Held


Appeal dismissed. Conviction upheld.
 
  1. The trial judge was right to accept that a reasonable jury, properly directed, could be sure that IS was involved in the drug dealing on one of the two bases submitted by the prosecution. They could reasonably exclude all realistic alternative possibilities consistent with innocence. IS had directly handled the outer packaging of a number of bags which were used as the packaging for Class A drugs. His prints were found on four of the bags in a position consistent with his opening or closing those bags. There was plainly a case to answer.

    The court stated that the question whether forensic evidence alone is sufficient to establish a case to answer will turn on the facts of a specific case. The Court distinguished this case from that of R v Walsh [2022] EWCA Crim 806, which involved the possibility of secondary transfer on a moveable object and stated that in this case, secondary transfer was plainly not a viable reason for the presence of IS’s fingerprints on the six plastic bags and was never put forward as such. In the absence of any innocent explanation from IS as to how they might have come to be there before the drugs were put inside the bags, the jury would be entitled to draw an obvious inference that he was either involved in the packaging or involved in the transportation of those bags at some point after they were filled with the drugs.
     
  2. There was nothing wrong with the directions that were given.

    A complaint about trial defence counsel by IS led to the waiving of legal privilege and so the appeal court had the benefit of reviewing the notes of the defence speech to the jury during the trial. The court found that the notes made it clear that defence counsel specifically reminded the jury of the admissions and that they could not date when the fingerprints were placed on the bags or the order in which they were put there. They were also told that there was no evidence as to when layers were placed inside the packaging and that there was no other evidence linking the appellant to the drugs or to M. Furthermore, the trial judge had made specific reference to the evidence about the fingerprints and to the admissions and had reminded the jury that they had heard evidence from an officer that it was not possible to say when the fingerprints came to be on the packaging.

    The summing-up was balanced and fair, and appropriately directed the attention of the jury to all the information they needed. It also gave proper directions on how they should approach the forensic evidence as expert evidence. The court were unable to accept any fault in the directions.