AA, R v, Court of Appeal - Criminal Division, September 26, 2018, [2018] EWCA Crim 2191

Resolution Date:September 26, 2018
Issuing Organization:Criminal Division
Actores:AA, R v
 
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Neutral Citation Number: [2018] EWCA Crim 2191

Case No: 201802117/B3

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Strand

London, WC2A 2LL

Date: Wednesday, 26 September 2018

B e f o r e:

LORD JUSTICE HAMBLEN

MR JUSTICE SPENCER

MR JUSTICE WILLIAM DAVIS

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R E G I N A

v

AA

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Computer Aided Transcript of the Stenograph Notes of

Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY

Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

(Official Shorthand Writers to the Court)

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Mr M Haggar appeared on behalf of the Appellant

Mr A Wright appeared on behalf of the Crown

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J U D G M E N T (Approved)WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.

LORD JUSTICE HAMBLEN:

Introduction

  1. On 23 April 2018, in the Crown Court at Kingston-upon-Thames before His Honour Judge John, the appellant was convicted on count 1 of bringing a prohibited article of Class A into prison, contrary to section 40B(1) (a) of the Prison Act 1952, namely 11 grams of cannabis and on counts 2 to 4 of bringing a prohibited article of Class B into prison, contrary to section 40C(1)(a) of the Prison Act 1951, namely two mobile phones (counts 2 and 3), a SIM card (count 4) as well as two charging cables. On an earlier date she had pleaded guilty in respect of count 5 of bringing a prohibited article of Class B into prison, namely a further SIM card.

  2. On 24 April 2018 she was sentenced to concurrent terms of imprisonment totalling 18 months as follows: 18 months' imprisonment in respect of counts 2 and 3; 6 months on count 1; 12 months on count 4 and 8 months on count 5, making a total sentence of 18 months' imprisonment.

    The Outline Facts

  3. On 29 August 2017 the appellant together with her daughter visited her long-term partner, K, who was a serving prisoner at HMP Wandsworth. Officers on duty observed the appellant pass something to K which he appeared to conceal inside the back of his trousers. A later search revealed that K had a clingfilm package in his anal passage which contained the cannabis (count 1), two mobile phones (counts 2 and 3), a SIM card (count 4) and two phone charging cables.

  4. The prosecution case was that the appellant had brought the clingfilm package and the single SIM card into the prison concealed in an orifice and had handed it to her partner in the visiting room.

  5. The defence case was that the appellant had only passed the prisoner the single SIM card (the subject of count 5) and that the items wrapped together in the clingfilm package (the subject of counts 1 to 4) were already concealed upon Mr K's person when he entered the visiting room.

  6. The issue for the jury was whether the appellant brought the prohibited items contained in the clingfilm package into the prison and passed them to her partner or whether he was already in possession of them when the appellant arrived.

    The Evidence at Trial

  7. For the prosecution, evidence was given by Michael Romane, a prison officer on duty in the visiting area of Wandsworth Prison on 29 August 2017. He explained that visitors are subjected to a rubdown search over their clothing. Although a metal detector was installed this was not used as sniffer dogs were not available at the time of the appellant's visit. During the visit the camera operator drew his attention to the appellant who was seated at table 39 and who had something in her hand. A short while later the camera operator informed him that something had been passed from the appellant to the prisoner. He looked over and saw K with his hand down the back of his trousers. He believed that he was inserting something into his anus. Staff moved swiftly to remove K from the visitors' area. He denied that he had concealed anything but after a detailed search the items were found in his anus. It was agreed evidence that the items subject of counts 1 to 4 were tightly packed in clingfilm in a manner designed to be smuggled into prison. There was no DNA evidence available.

  8. Police were called and arrested the appellant. She was in possession of three mobile phones. In interview, she initially denied taking anything into the prison. She later accepted that she had taken in a single SIM card.

  9. CCTV footage from the visiting room was played to assist the jury.

  10. For the defence, the appellant gave evidence that she went to Wandsworth Prison that day with her 14-year-old daughter, X, to visit her partner, K. She had visited him at various prisons during the past three-and-a-half years, once every fortnight. Sometimes visitors were required to walk through a metal detector or had a wand detector passed over them. On some occasions there would be sniffer dogs which she would not know in advance whether they would be present and there were none during this particular visit.

  11. K had told her to bring him a SIM card which she had done. She wrapped it in a Rizla cigarette paper and kept it in a tiny pocket before removing it and placing it onto her lap and passing it across. She knew it was wrong but had done it any way. She had not received any payment for doing this.

  12. Dealing with the three mobile phones in her possession, the iPhone had belonged to her daughter previously and was given to the appellant when she, the daughter, received an upgrade. The phone contained a video clip of K posing in his cell recorded with a bag and two phones saying: "Live a life. I've got some weed". The appellant stated that this would have proved her innocence because he clearly had the items before she visited on 29 August. The iPhone was now in the possession of the police and she had been unable to recall the PIN so the video could be viewed.

  13. In cross-examination she said that K had asked a few days earlier to bring him in the SIM card. He did not specify a type but she believed he had a T-Mobile phone so thought the SIM card would have been the same. It was Pay As You Go and not registered in her name. He had not told her why he needed the SIM card and she had not asked. She knew it was contraband and that she could get into trouble if discovered. She agreed she had lied in interview when she said she had not brought any prohibited items into the prison because she had brought in the single SIM card, but explained that her head was "all over the place at that time". In addition she had not mentioned the video clip of K in his cell boasting: "I've some weed" because it did not come to her mind at that time.

  14. K gave evidence in her defence. He said that the appellant visited him every week. He had received a disputed package earlier that day from a friend who was having a relationship with a prison officer. The prisoner officer had wrapped it into the clingfilm and brought it into the prison. The reason he had hidden it on his person was that four days earlier another officer had found phone chargers in his cell and confiscated them. He did not want these new items to be found because it was a single status cell and if found it would be obvious that they belonged to him. The items were certainly not given to him by the appellant because there were sniffer dogs and a metal detector and every visit had the potential for a random search of the prisoner afterwards. All he received from the appellant was a single SIM card because he wanted a pre-pay contract. He inserted this into his anus whereas the clingfilm package was between the cheeks of his bottom.

  15. In cross-examination he said he had asked the appellant to get him the SIM card the previous week. He requested one in a contract in her name so he would not need to top it up. He already had a Samsung phone but wanted more to sell within the prison. He received the clingfilm package at 11.30 am and he named the prison officer and prisoner from whom it came. He concealed it on his person and took it into the visiting room because...

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