How High Fiving Police Officers Turned Off a Jury
Not so long into my practice, I defended someone on serious drugs charges. The defendant had been charged with possession with intent to supply class A drugs and possession of a bladed article. I have to say, reading through the brief, I was not filled with hope. The defendant’s PNC was vast and pretty much all his previous convictions were for either possessing or possessing with the intention to supply drugs. The incriminating evidence in this case did not help either, and, just to add an extra twist, the defendant was actually seen on the custody suite CCTV disposing of the drugs. Over the years, I have, like so many of us, read a brief, reviewed the evidence and with an audible sigh, felt a little dejected imagining the prosecutors smug opening statement, the little digs of ‘and you’re absolutely sure your client doesn’t want to plead’ and long dramatic pauses staring at the jury every time the defendant responds to a question. Having to explain to my client the realities of the evidence in a sensitive way is tough enough without adding the fact that if convicted, they are looking at a pretty long stint at Her Majesty’s pleasure. This is a scenario that many defence barristers face all too often and as hard skinned as we may be, it's still a sad situation.
But never underestimate a jury and of course the power of (slightly) dramatic advocacy (we are in England, after all). The jury are there to decide what version of the facts they are most persuaded by, even though your role as the defence is not to prove your client’s innocence. It’s all about doubt. Unlike a Judge who nods reassuringly with every one of your submissions, only to then go on and deliver a judgement against every point they had just nodded along to only moments before, a jury are open to an alternative set of events and this is a powerful thing. Especially, as I have found, where high-fiving police officers are concerned.
Now, for the legal bit.
Possession of a controlled drug with an intent to supply is an either way offence. The guidelines start with determining the seriousness of the offence, with Class A being the most serious, carrying a maximum life sentence, with an offence range from a community order to 16 years’ custody. Class C is the least serious carrying a maximum sentence of 14 years with an offending range from a fine to 8 years imprisonment. Class B carries a maximum sentence of 14 years’ custody and/or unlimited fine, Offence range: Fine to 10 years’ custody. Next comes the culpability, both the class of offence, sometimes known as the harm and the culpability (the role) are taken together to determine a more accurate level of potential sentence, and of course taking into account the other factors such as, character, nature of offence etc.
In offences involving possession with intent to supply, the culpability is split into 3 main categories, these relate to offenders in a leading role, significant role and a lesser role. Some of the ways in which the role is determined is where the following are present:
directing or organising buying and selling on a commercial scale;
substantial links to, and influence on, others in a chain;
close links to original source;
expectation of substantial financial gain;
uses business as cover;
abuses a position of trust or responsibility, for example prison employee, medical professional.
operational or management function within a chain;
involves others in the operation whether by pressure, influence, intimidation or reward;
motivated by financial or other advantage, whether or not operating alone;
some awareness and understanding of scale of operation;
supply, other than by a person in a position of responsibility, to a prisoner for gain without coercion.
performs a limited function under direction;
engaged by pressure, coercion, intimidation;
involvement through naivety/exploitation;
no influence on those above in a chain;
very little, if any, awareness or understanding of the scale of operation;
if own operation, absence of any financial gain, for example joint purchase for no profit, or sharing minimal quantity between peers on non-commercial basis.
Once the category is determined, the question moves onto the nature of the controlled drug and the quantity. Again, these are separated in various categories, Category 1 involving larger quantities of different controlled drugs. Category 3 deals specifically with street dealing or selling directly to users and so is not necessarily based on quantity, and this is the category that this defendant fell into. Given the defendant’s previous convictions for the same offences, it was not surprising that the prosecution suggested that, were he to be found guilty after trial, they would be inviting the court to consider him as a significant offender. This meant that if convicted after trial, he would be looking at a starting point sentence of 4 years, 6 months and a category range of 3 years, 6 months to 7 years in custody. Whichever way you looked at it, the aggravating factors were compelling and he would certainly be looking at the higher end of this range.
Now, for the ‘dramatic’ courtroom drama bit.
The defendant in this case had a comprehensive history of possession with intent to supply class A drugs, street dealing as classified under the Misuse of Drugs Act 1971. He had only 3 months prior been released from prison (on licence) following a commission of the very same possession with intent to supply offence that he was now indicted on. Needless to say, he had been recalled to prison as soon as he was charged. There were also suggestions that he himself was part of a prolific east London gang, known for recruiting young, mainly back youths to street deal.
On the morning of his arrest, the prosecution case had been that the defendant had been stopped in a car registered in his name, having been observed acting ‘suspiciously’ by two police officers in marked police cars. Having stopped the defendant and carried out an initial search, they did not find anything. Having then conducted a fuller search of the car, the police recovered a knife behind the driver’s seat and this then led to a fuller search of the defendant where they recovered sealed drugs in his undergarments.
The whole incident had been captured on the police officer’s bodycam footage. A very useful tool generally and very useful in this case as not only did it show the complete shock on the defendant’s face when they found the knife in his car but also captured the police officers high-fiving each other, with one saying, ‘we got him’ when they found drugs on the defendant and after they had placed him in the police van. To say that this did not go down well with the jury, was an understatement (one member of the jury actually looked like they had just swallowed a fly). And how the prosecutor didn’t see how this may be perceived by the jury was even more perplexing. This went against what the officers themselves tell the defendant (as captured on their bodycam) that the reason he was stopped was because there had been some drug dealing in the area and they were just checking. The fact that they waited until he was out of sight before high-fiving each other and practically breaking into a victory dance was not impressive and clearly showed, as I put it, some level of racial stereotyping. Unsurprisingly, the officer didn’t agree with my racial stereotyping point but then again, I never expected him to. He did, however, happily agree that the defendant did indeed look very shocked when he saw the knife, which was, quite frankly, music to my ears. I am sure that that high-five is where the jury turned and took notice of what the defendant had to say. Officers celebrating that moment, however trivial they may have thought it was, made for a powerful defence point and one which I came back to time and time again. It was in my cross examination of the witnesses, in my examination of the defendant and in my closing speech. Seriously, at one point, I thought the Judge was going to tell me to reign it in. It was my ‘if the glove doesn’t fit, you gotta acquit moment’ (on a much smaller junior scale, of course) - but I thought I’d leave the catchy rhymes to the American courts and also, I think it may have tipped the Judge over the edge.
The defendant’s defence was simple, the drugs were not his. He had loaned his car to someone that he knew and when they had returned it a few hours later, he had taken the car to the gym and discovered the drugs by the gearbox. He saw the police and when he was pulled over, he panicked and concealed them. There was a gym bag with gym gear in his car. It didn’t help that the defendant took the drugs when he was being booked into the police station and disposed of them down the toilet. So, what do you do in this situation, the prosecution had thrown all they could at this, clear bodycam footage, phone evidence (although no burner phone was located and nothing incriminating on his phone), CCTV of the defendant disposing of the drugs, bad character application and the list goes on. But as a lawyer, you do what you need to do and choose your battles. I didn’t object to the bad character application and luckily, I had a client who trusted me to make that decision. The reality was that it would go in regardless. What’s more, and I am about to say something that you only whisper, I believed my client when he says the drugs and the knife were not his. And this became more apparent as we gathered information.
Where was the burner phone (usually a phone not dissimilar to something that your mum might have had circa 1999 and not dissimilar to the kind Dom Jolly sported in Trigger happy TV), where was the quantity of cash? Why did he conceal the drugs and didn’t bother to conceal the knife behind his seat? Why was he driving a car registered in his own name (which his parents had bought him only a month earlier) if he was in fact making drug deals in an area known to police? Why did the phone he was found with have a call from his friend at exactly the time he said that his friend borrowed the car? and why would this ‘prolific’, significant and experienced drug dealer make so many silly errors? Especially when he was on licence. And why oh why did the two police officers high-five each other? Looking at these individually doesn’t make much of a compelling case, but propose enough of the alternatives and you may find the jury coming around. I took the extra step and decided to freezeframe the high-five and have my own staring contest with the jury. I also decided that the defendant should give evidence and be honest about his past and this did pack the powerful punch that I hoped it would. Never underestimate the value of honesty with a jury, a hardened Judge would have nodded sympathetically but wouldn’t have budged when considering their verdict but it is positive to hear the story of someone with such a difficult upbringing to try and better themselves and yes, want to actually turn over a new leaf. The defendant was supported at this trial by his parents and he had a job offer waiting for him at the time he was stopped and arrested. So, why would he risk it? My job as defence counsel was not to prove his case or to convince the jury that he was innocent but it was create enough doubt that the jury simply couldn’t be sure that the prosecution case had been proved beyond that doubt. Again, that high-five was the catalyst.
So, what was the verdict? Well, this after all this, it would be an anti-climax if he were actually convicted. But yes, the defendant was (much to the shock of the prosecutor), acquitted on both counts. Much to the defendant’s shock too, I hasten to add. If this case taught me anything, is to never assume that you have a simple straightforward case, especially where a jury is concerned. Jury trials are unpredictable, full of emotion and, as someone who loves the thrill of advocacy, about as exciting as it gets at the Bar. Of course, exciting by lawyer terms. You only have to show a lay person the average court day to see that they would class it as about as interesting or slightly less interesting than watching paint dry. But then again, I quite like paint.