Practice and Procedure

R v S (2003)

PUBLISHED February 21, 2003

Despite the severance of one or more counts admissible evidence relating to the severed counts could still be before the jury in both trials so that the outcome of the trial(s) would be unaffected.Further appeal from conviction, following a reference by the Criminal Cases Review Commission. The appellant, ('S'), was convicted in 1991 on an indictment charging him with: (i) possessing cocaine with intent to supply; (ii) possessing a sawn-off shotgun; (iii) possessing two handguns; and (iv) reckless driving. He was found not guilty by direction of the judge on a count of possessing a pistol. Before the trial, an application for the reckless driving count to be tried separately had been refused. The Crown's case was that on 25 March 1991, police officers had found: (a) a substantial amount of cocaine; (b) the firearms specified in the indictment; (c) a large quantity of ammunition under the floorboards of S's sister's house; (d) a plastic bag with the word "Ash" on it, which bore the appellant's fingerprints; (e) a balaclava with hairs on it some of which might have belonged to S. The next day, a high speed chase ensued as armed police attempted to arrest S as he left a car park. S admitted driving recklessly, but said that he had done so out of fear believing that the police officers were armed criminals intent on killing him. He denied possession of the drugs and firearms, but admitted that he had a key to his sister's house. The prosecution case rested upon: the finding of S's fingerprints on the "Ash" carrier bag, the hairs on the balaclava, his driving off rather than submission to arrest, and his prevarication and lies in the course of interview. Fresh evidence in the case arose during S's application for parole. The commission's reference to the Court of Appeal had arisen in direct response to the possible effect that the admission of that evidence, and any possible severance of the reckless driving charge would have had on the jury. S claimed that had the information been disclosed to the defence and prosecuting counsel it would have: (A) added substance to his defence of duress; and (B) assisted his application to sever the reckless driving charge.HELD: (1) The commission's concern and S's argument rested upon a fallacy. Even if the driving charge had been severed, the evidence of the arrest and the reckless driving would still have been available on the firearms charges. (2) Given the defence of duress, the evidence of the finding of the guns and drugs would have been admissible on the reckless driving charge. (3) The fresh evidence, of itself, could not have been deployed to S's advantage, he had therefore suffered no injustice.Appeal dismissed.

[2003] EWCA Crim