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Woman’s cannabis convictions restored by Court of Appeal

Sir Christopher Clarke (Photograph from Brick Court Chambers)

A woman cleared of cannabis charges on appeal has had her convictions restored by the Court of Appeal.

Puisne Judge Shade Subair Williams found last year that two convictions against Rebecca Wallington should be overturned because of the appearance of bias by the magistrate who oversaw both cases.

However an Appeal Panel found that a judge could oversee similar cases involving the same defendant during the same time period without the appearance of bias.

Sir Christopher Clarke, the president of the Court of Appeal, said in a judgment dated March 18: “The fact that the same judge may find, or that he has found, the evidence of the defendant to be unreliable in one case does not, without more, found the basis of a valid claim of apparent bias in the other.

“As support for such standard propositions, one needs look no further than the practice in the criminal courts of calling upon lay jurors – and not only experienced lawyers such as the Magistrate – to try different counts on the same indictment, based upon different, even if related, factual circumstances.”

Mr Justice Clarke added that while it would have been better for the cases to be heard one after the other, the way they were handled was not something that would cause the appearance of bias.

He said that Wallington’s counsel during the trials had not suggested the magistrate should recuse himself at any point until the launch of the appeal.

Mr Justice Clarke added: “If this was a civil case the defendant would be taken to have waived any right to complain of apparent bias.

“A defendant, who knows the facts that are said to give rise to an appearance of bias, cannot sit through a civil trial without inviting the judge to recuse himself, and then, having lost, submit that he should have done so.

“The position may be different in crime but, even if that is so, which I do not decide, the failure to make any application must be a strong indicator that no sound basis for doing so exists.”

Two cases against Wallington

In the first of the two cases, the court heard Wallington and a man were spotted by police near the junction of Middle Road and Fort Hill in Devonshire on November 15, 2016.

The officers said the car pulled into a bus lay-by where Wallington and the man stepped out of the vehicle.

They said the pair were in “constant motion” for five minutes before they got back in the car and drove away.

Officers then saw the man walk back to the lay-by, pick up a package, and start to walk away.

When police went to investigate, the man discarded the bag, later found to contain 418.7g of cannabis.

Both he and Wallington were arrested, and during a police interview she said the drugs belonged to her and that she used them for medical purposes.

But in a second interview, she claimed she had nothing to do with the drugs and that she had lied to protect her friend, who was on parole.

In court, she claimed she had set out to buy 2oz of cannabis from a relative to address her medical issues, but later discovered a much larger bag of cannabis had been left in her car without her knowledge.

In the second case, police received a report that Wallington was seen hiding a white plastic bag in a hedge in Southampton.

A search of the hedge revealed a plastic bag containing 857.3g of cannabis behind a breeze block.

Wallington told the court that earlier in the morning she had seen a white bag hanging off a nearby wall when she went to dispose of some trash.

She said she looked into the bag and, when she saw what appeared to be cannabis inside, she panicked and brought the bag into her laundry room to deal with later.

Wallington said she later threw the bag in the hedge and had intended to throw it directly in a trash truck when it came but did not have the opportunity.

She told the court that she had earlier received a text from her child’s father in which he said he would do something to get her a stronger sentence for the earlier offence.

Wallington claimed she had shown the message to an officer, but the officer denied seeing any such message.

Wallington, 45, of Southampton, was charged with possession of 418g of cannabis with intent to supply in November 2016 and convicted in January 2021.

She was also charged with the same offences in connection with 857g of the drug in January 2017 but convicted in November 2020.

In the 2016 case, Wallington admitted possession but denied intent to supply, while she denied possession entirely in the 2017 case.

Both matters were heard by magistrate Craig Attridge.

Mrs Justice Subair Williams had found Mr Attridge should not have presided over both cases because it caused an “appearance of bias” against Wallington.

She highlighted that Mr Attridge had found that Wallington had not given “honest or credible” evidence in both cases.

Mr Justice Clarke however said that Mr Attridge’s judgment had carried out “detailed and rigorous” analysis of the evidence in both cases.

He said: “If a judge tries two cases against the same defendant, and finds his evidence in each case incredible, he is not to be regarded as biased because he took the same view of the defendant’s credibility in the second case as he did in the first.

“Nor is the risk that he might take the same view a grounds for recusal.

“The position would be different if there was a real possibility that the judge would not, or did not, properly and fully consider and evaluate the evidence in the second case in order to determine whether the evidence of the defendant in that case was not worthy of belief but, rather, decided the second case against the defendant because or largely because he had not believed him in the first.”

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