Scottish High Court of Justiciary Decisons

We have before us two appeals arising out of unconnected cases.

In the first the appellant is Donald Salmon who was convicted in the High Court at Aberdeen of two charges, the first being a contravention of Section 4(3)(b) of the Misuse of Drugs Act 1971 ("the 1971 Act") and the second being an attempt to defeat the ends of justice. Although the appellant originally had a ground of appeal which would have affected the conviction on both charges, his counsel, Mr. J. Davidson, Q.C., departed from that ground at the start of the hearing of the appeal. Salmon's appeal was therefore confined to his conviction on Charge 1, the drugs charge, which was in these terms:

In brief, Salmon was convicted of being concerned in the supplying of cocaine.

In the second case the appellant is Anthony James Irvine Moore, who was convicted at the High Court at Glasgow of a contravention of Section 5(3) of the 1971 Act, the charge being that

In brief, Moore was convicted of being in possession of Ecstasy with intent to supply it.

The court scheduled the appeals to be heard together since they appeared to raise related issues about the Crown's burden of proof and Section 28 of the 1971 Act. Originally the court was due to hear a third appeal at the same time, but it required to be continued to a later date. Hearing the two remaining appeals together did indeed prove useful since the different charges and different facts helped to test the various arguments, which ran over from one case to the other and developed during the two days of the hearing. In this opinion I first outline the facts in the two cases. Against that background I deal with the construction of Sections 4(3)(b), 5(3) and 28 of the 1971 Act. After that I consider the individual appeals in the light of the approach to the legislation which I have identified.

In the case of Salmon, on the day in question, the police were keeping surveillance at various places in and near the Skean Dhu Hotel at Dyce. They saw Salmon and one of his co-accused in conversation in the hotel bar. After some time Salmon and the other man left the hotel and went towards a car which was in the hotel car park. The car belonged to Salmon. His brother, who was not subsequently charged with any offence, was in the driving seat. Salmon and the other man began to enter the back of the car. At this point a number of police officers pounced and arrested the other man. Salmon, however, walked away quickly and then broke into a run. The police ordered him to stop. He ran out of the car park, across a road and into some fields where he disappeared. He was subsequently found lying in the bed of a stream, almost totally submerged in the water. He was arrested. His car was searched and on the back seat the police found a plastic bag containing 530 grams of cocaine of 60% purity. After cutting, the street value would have been around £120,000. When Salmon's house was searched, the police found a bag containing a box of glucose and a container of bicarbonate of soda, agents used to bulk out illegal drugs. These items had been taken to the house by other people, while Salmon was out of the house. The police also found £3735 in bank notes, and certain books on the subject of drugs.

The issue in the appeal related to Salmon's knowledge of the bag and its contents. In particular it was said that, since Salmon was charged with being concerned in supplying cocaine while acting in concert with another, the Crown required to prove that Salmon knew that controlled drugs were involved in the transaction in question. The jury should therefore have been directed that, before they could convict Salmon, they would have to be satisfied that he knew that there were drugs in the bag on the back seat and not simply that he knew that the bag containing something was there. By the end of the hearing, however, the contentions for Salmon had been refined. They are best understood once the relevant law has been considered.

In the case of Moore, he hired a car from a firm of which he was a regular customer. All the cars are cleaned outside and inside before being released for hire. The following day, a Saturday, Moore was driving the car in Duke Street in Glasgow. There were three other men in the car, including one, Davis, who was sitting in the front passenger seat. Police officers saw the car and Davis, and they followed the car into Whitevale Street where it was stopped. According to Davis, there was a polythene bag at Moore's feet. That bag was subsequently found to contain 50 Ecstasy tablets. In evidence Davis said that, when the police stopped the car, Moore took the bag in his hand, passed it to Davis and said "ditch that", but in cross-examination he said that Moore could have said "what's that?" One of the men who was in the back of the car gave evidence to the effect that he had seen Moore "fling" the bag to Davis as the car was stopped. When he gave evidence, Moore said that he had been with Davis on the Friday and they had met others and had gone to a club and to a party. The next day he and the other three went to a travel agent in Rutherglen and then into Shettleston Road. He put a suit into a dry cleaners and, while he was doing that, Davis drove the car round the block. When the police stopped the car, Moore was looking for a newsagent. He described how something dropped at his feet. He picked it up and Davis grabbed it. He said to Davis "what is this?"

The police searched the car and found the bag to which I have referred between the seats, with Davis trying to conceal it under his hand. After Davis and Moore had been arrested, the police made a more detailed search of the footwell and then behind the dashboard fascia in front of the driver's seat. Behind the dashboard they found a Peckhams bag, inside which there was, first, another polythene bag with 50 Ecstasy tablets and, secondly, a Highlander Crisp packet containing 13 Ecstasy tablets. When cautioned and asked for an explanation, Moore made no reply. When he was later searched, he was found to have only a few pounds on him. He gave his occupation as a salesman. In evidence Moore said that he had never seen the Peckhams bag or its contents before.

The issue in Moore's appeal also related to knowledge. In the ground of appeal it was said that the trial judge ought to have directed the jury that the Crown required to prove that Moore knew that the packages with their contents were in his physical possession and control and that the appellant knew "the general character" of the contents. The trial judge had directed the jury that the Crown did not have to prove that Moore knew that there were drugs in the bags, provided that he knew that the bags contained something. This was said to constitute a misdirection. A further ground of appeal was intimated before the appeal began. This was to the effect that the trial judge should have given a direction in terms of Section 28 of the 1971 Act.

Subsections (1) and (3) of Section 4 of the 1971 Act provide:

The first thing which strikes me, when I look at these provisions, is that Parliament intends Section 4(3)(b) to be read along with, and subject to, Section 28 and similarly intends Section 5(3) to be read along with, and subject to, Section 28. This emerges both from the opening words of Section 4(3) and Section 5(3) ("Subject to section 28") and from subsection (1) of Section 28 which applies that section to offences under various provisions, including Section 4(3) and Section 5(3). Section 28 is therefore designed to put a qualification on the scope of those provisions.

The other point which strikes me is that Sections 4(3) and 5(3) are to be read as being subject to Section 28 as a whole. So far as Section 28 was concerned, in the earlier stages of the hearing counsel tried to confine the argument to the effect of subsection (3). That subsection had been paraphrased by the trial judge in his charge to the jury in the Salmon case and, counsel argued, it should have been mentioned by the trial judge in the Moore case. In cleaving to subsection (3) and studiously averting their eyes from subsection (2) counsel were merely following the lead of distinguished judges in both Scotland (McKenzie v. Skeen 1983 S.L.T. 121) and England (R. v. Ashton-Rickhardt (1977) 65 Cr. App. R. 67). The result of the courts' attitude is that Section 28(2) has vanished into a legal black hole. To ignore a provision which Parliament has included in an Act is wrong in principle, but, worse still, by disregarding subsection (2), the courts are in danger of distorting the construction of Section 28 as a whole. Indeed it is indispensable, even to a proper understanding of Section 28(3), to bring Section 28(2) back into the light and to examine its terms. As the opening words of subsection (2) show, Parliament intends subsection (3) to be read as qualifying subsection (2). That being so, one must understand subsection (2) if one is to understand subsection (3). Subsection (3) also provides invaluable clues to the construction of subsection (2). I begin by examining subsection (3).

Section 28(3) introduces a defence. It therefore provides a basis on which an accused person is to be acquitted, even though he would otherwise fall to be convicted.

In approaching the construction of Section 28(3) I start with the opening words of subsection (2), "Subject to subsection (3) below ...." Those words immediately indicate that, although the scope of subsection (2) is wider than the scope of subsection (3), subsection (3) is designed to apply a special legislative régime to a particular situation which would otherwise fall within subsection (2) and be regulated by it. So, by identifying what subsection (3) covers, you identify a particular example of the general kind of situation which subsection (2) is designed to cover.

The courts have tended to construe subsection (3) as if it applied in any case where an accused person is found in possession of a drug, but says that he thought that the drug was something else. So, for instance, in R. v. McNamara (1988) 87 Cr. App. R. 246, Lord Lane C.J. considered that Section 28(3) would be the basis upon which the appellant, if believed by the jury, could be acquitted in a case where he said that he thought that a cardboard box, which was on his motorcycle, contained pornographic or pirate videos rather than the 20 Kilos of cannabis resin which it in fact contained. In my view, however, such a broad interpretation of subsection (3) is not justified by the very precise language used by Parliament.

The first part of subsection (3) shows that the subsection concerns the situation where it is necessary for the prosecution to prove that "some substance or product involved in the alleged offence was the controlled drug which the prosecution alleges it to have been, and it is proved that the substance or product in question was that controlled drug" (emphasis added). It is significant that Parliament uses the words "substance or product" rather than some more general word such as "article". In the clauses which I have quoted the words "substance or product" can refer only to a substance or product which is actually a controlled drug - so it must be, say, the powder or tablets in question. That meaning must be carried through to the remainder of the subsection. Therefore in subsection (3)(b)(i), for instance, Parliament is saying that an accused is to be acquitted if he proves that he neither believed nor suspected nor had reason to suspect that the powder or tablets in question were a controlled drug. It follows that the subsection is intended to deal with the limited situation where the Crown have proved that the accused person possessed or was concerned in supplying, say, tablets ("the substance or product"), which are proved to be Ecstasy tablets, but he says that he was mistaken about the nature or quality of the tablets.

A person in that position may say one of three things about the tablets. First, he may say that he did not know that they were Ecstasy tablets and had always thought that they were heroin. Even if the jury accept his evidence on this point, it does not constitute a defence, however, since he is not to be acquitted of possessing Ecstasy tablets by proving that he did not know that the substance or product in question was the particular controlled drug alleged rather than another controlled drug (Section 28(3)(a)). Secondly, the accused may prove that he thought that the tablets in the bottle were aspirin and that he neither suspected nor had reason to suspect that they were a controlled drug. In that situation he is to be acquitted (Section 28(3)(b)(i)). Thirdly, there are situations where people are authorised to possess or supply particular drugs. For instance, although heroin is a Class A drug, a doctor may "for the purpose of acting in his capacity as" a doctor have heroin in his possession (Regulations 8(2)(a) and 10(1)(a) of, and Schedule 2 to, the Misuse of Drugs Regulations 1985 (No. 2066)). If a doctor were found to have Ecstasy tablets in his possession, it would be a defence for him to prove that he believed that the tablets were heroin tablets which he had in his possession for the purpose of acting in his capacity as a doctor (Section 28(3)(b)(ii)).

That being the scope of subsection (3), it is not apt to apply to the kind of case envisaged in McNamara where an accused says that he thought that the contents of a box on his motorcycle were pornographic or pirate videos rather than cannabis resin. In such a case the accused is not claiming that he did not know that the organic matter ("the substance or product in question") was a controlled drug. Rather, he is saying that he did not think that the cannabis resin was there at all: he thought that the box contained videos. It follows that, if the only possible basis for the motorcyclist's defence were Section 28(3), he would have no defence.

As I noted, Section 28(3) applies only where it is necessary "for the prosecution to prove that some substance or product involved in the alleged offence was the controlled drug which the prosecution alleges it to have been, and it is proved that the substance or product in question was that controlled drug". The subsection is therefore concerned with a situation where the Crown have to prove the existence of a particular fact, viz. that the substance or product in question was a controlled drug. Similarly, as the wording of paragraphs (a) and (b)(i) shows, the subsection applies where the accused proves that he neither knew nor suspected nor had reason to suspect the existence of the fact which it was necessary for the Crown to prove, viz. that the substance or product in question was a controlled drug. Therefore, as was envisaged above, subsection (3) turns out to be simply a particular example of the wider class of situations covered by subsection (2), viz. situations where the accused proves "that he neither knew nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged."

This brings me to Section 28(2) itself. In view of what is said by Lord Justice General Emslie in Mackenzie (1989 S.L.T. at p. 121), it is perhaps worth emphasising that subsection (2) of Section 28 is concerned with the accused's state of knowledge as to some fact which the Crown must prove if it is to succeed in the prosecution rather than with the fact itself. So, for instance, in McNamara it was necessary for the Crown to prove that there was organic matter in the box on the back of the appellant's motorcycle and that it was cannabis resin. The function of subsection (2) is to give an accused person in the position of McNamara a defence - which subsection (3) does not afford him - if he proves that he neither knew nor suspected nor had reason to suspect that the organic matter was in the box. I noted that subsection (3) was designed to provide a defence to someone who would otherwise fall to be convicted of an offence under, say, Section 4(3) or Section 5(2) or (3). In the same way, subsection (2) is designed to provide a defence to someone who would otherwise fall to be convicted of an offence under the same provisions. So, even if the Crown established that the motorcyclist in McNamara was in possession of the box and of the cannabis resin inside the box, he would still have a complete defence to the charge if he proved that he thought that the box contained videos and that he neither knew nor suspected nor had reason to suspect that the organic matter, which was proved to be cannabis resin, was in the box. I therefore respectfully agree with the Court of Appeal in McNamara when they say that, if he proved that, a person in McNamara's position would have a defence, but the defence would arise, not - as the Court of Appeal thought - under Section 28(3), but rather under Section 28(2).

It is worth summarising the conclusions so far.

Subsections (2) and (3) of Section 28 are both designed to come into play at a stage when the Crown have proved all that they need to prove in order to establish guilt either of a contravention of Section 4(3)(b) or of a contravention of Section 5(3). So the Crown will have proved that the accused was delivering a package containing cocaine, for example, and was thus concerned in the supplying of cocaine; or that he was in possession of a package containing Ecstasy with intent to supply it. At that stage Section 28(2) provides that the accused is none the less to be acquitted if he proves that he neither knew nor suspected nor had reason to suspect the existence of a fact which the Crown required to prove, for example, that there was powder - which proved to be cocaine - or that there were tablets - which proved to be Ecstasy - in the package which he was delivering or in the package which he possessed.

The scope of that general defence in Section 28(2) is qualified by Section 28(3). Subsection (3) is concerned with one particular type of the general situation covered by subsection (2), viz., where the Crown establish that the accused was concerned in supplying the substance or product which turns out to have been a controlled drug, or that he possessed it, but the accused proves something about his absence of knowledge of the nature and quality of the substance or product which comprised the controlled drug. In that situation, even although the accused proves that he neither knew nor suspected nor had reason to suspect the existence of a fact which the Crown required to prove, viz. that the substance or product was a controlled drug, in one set of circumstances he is not to have the benefit of the kind of defence provided in Section 28(2).

The set of circumstances is this. To succeed in a particular prosecution the Crown must prove the charge which they bring. In particular where they have alleged, say, that the accused possessed Ecstasy with intent to supply it, they must prove that it was Ecstasy, and not any other controlled drug, that the accused possessed. For obvious reasons, however, Parliament will not allow an accused person to escape conviction simply by proving that, though he knew that he had a controlled drug, he neither knew nor suspected nor had reason to suspect that the drug was Ecstasy as opposed to some other controlled drug, say, cocaine. Section 28(3)(a) therefore qualifies the general defence in subsection (2) by providing that in such a situation the accused is not to be acquitted. Presumably, it was because of the need to cater for this case that subsection (3) was inserted. See Reg. v. Shivpuri [1987] AC 1 per Lord Bridge of Harwich at pp. 16F-17C.

If, however, the accused proves that he neither believed nor suspected nor had reason to suspect that the pills which he had or which he was involved in supplying were a controlled drug, he is to be acquitted (Section 28(3)(b)(i)). The same is to happen in the very special situation envisaged in Section 28(3)(b)(ii) where, for instance, someone could legitimately possess a controlled drug or a particular controlled drug in certain circumstances. If he possessed a different drug, then it is a defence for him to prove that he believed that the substance or product was one which he had in his possession for the purpose of acting in his capacity as a doctor. The situations in (b)(i) and (ii) are dealt with on essentially the same basis as situations which fall under subsection (2).

It is perhaps worth stating explicitly that, even though subsections (2) and (3) speak of the accused proving something, this does not imply that, to establish a defence, the accused must necessarily give evidence. Doubtless, that would often be the simplest mode of proof, but the necessary evidence might come, for example, from a "mixed" statement or from witnesses speaking to what the accused was told was in the container or to the accused's apparent astonishment when the contents of the container were revealed and found to be a controlled drug. It goes almost without saying that the facts necessary for any defence under Section 28 can be proved on the basis of uncorroborated evidence.

As I mentioned, the courts in both England and Scotland have tended to ignore Section 28(2). This appears to have happened as a result of somewhat incautious arguments which the Crown put forward in both jurisdictions in the years after Section 28 came on the scene in the 1971 Act. The issue tended to arise in relation to charges involving possession of a controlled drug. It has long been accepted, rightly in my view, that in the context of drugs legislation, the term "possession" is not to be given any technical construction but is to be given its ordinary meaning. As Lord Diplock said in D.P.P. v. Brooks [1974] AC 862, an appeal to the Privy Council concerning the dangerous drugs legislation in Jamaica,

Similarly, in McKenzie v. Skeen Lord Cameron inferred that in the 1971 Act the concept of possession covered "an article subject to the control of the possessor" and he added:

It follows that, before someone can be convicted of being in possession of a controlled drug, the Crown must prove that he had the necessary knowledge and control. This was the position under the Drugs (Prevention of Misuse) Act 1964. For the purposes of that Act the courts required, of course, to define what degree of knowledge and control the Crown needed to establish. This they did in a series of cases culminating in the decision of the House of Lords in Warner v. Metropolitan Police Commissioner [1969] 2 A.C. 256.

Under the 1964 Act, on the other hand, there was never any doubt that the burden of proving the necessary knowledge and control rested on the Crown. With the advent of Section 28 of the 1971 Act, however, the Crown began to argue that the effect of Section 28(2) had been to shift the onus in regard to proving the necessary knowledge from the Crown to the defence. In other words, it was contended that all that the Crown required to do was to prove that, as a matter of fact, the drugs were in the custody or control of the accused and he would then be convicted, unless he proved that he had not known that the drugs were there. Not surprisingly, this kind of argument provoked a strong reaction from the courts, both in Scotland and in England. They rejected the argument for the Crown and affirmed that Section 28(2) did not shift the onus of proving knowledge on to the defence (McKenzie v. Skeen per the Lord Justice General (1983 S.L.T. at p. 121) in Scotland and Ashton-Rickhardt per Roskill L.J. (65 Cr. App. R. at p. 67) in England). The courts were plainly right to reject the Crown's argument: as Roskill L.J. pointed out, the manifest purpose of Section 28 was not to place a new onus on an accused person but "to afford a defence to an accused person where no defence had previously existed" (Ashton-Rickhardt, 65 Cr. App. R. at p. 72). Unfortunately, having rejected the extreme argument advanced by the Crown as to the effect of Section 28(2), the courts seem to have felt that there was no place left for that subsection in a system, such as they envisaged, where the burden of proving the necessary knowledge and control continued to rest on the Crown. Hence subsection (2) disappeared from view.

Once the proper but limited range of Section 28(3) is appreciated, however, there is no inconsistency in holding both that the burden of proving the necessary knowledge and control rests on the Crown and that Section 28(2) has a distinct role to play. There are cases, of course, where police officers searching a suspect or his house find pills comprising a controlled drug, not in any container, but perhaps in his hand or in his pocket or lying on his bedside table. In straightforward cases of that kind, in order to prove their case, the Crown must satisfy the jury that the accused knew that he had the pills and that he had control of them. Since the pills are not in any kind of container but can be seen directly, the Crown will be seeking to show that the accused knew that he had the pills themselves. In the nature of things, however, controlled drugs tend to be found in a container of some kind - in a bag or a parcel or a box or a tin, for example. In such cases the strict legal question comes to be whether the Crown require to prove not only that the accused knew that he had the container in question but also that he knew that there were controlled drugs inside the container. In broad terms the courts have decided that it is sufficient for the Crown to prove that the accused knew that he had the container and that there was something in it. In that situation, if he had the necessary control of the container and its contents, the accused is held to have been in possession of the contents even though he did not know that they were controlled drugs.

So far as England is concerned, this emerges most clearly from McNamara. The Lord Chief Justice began by drawing a number of propositions from the speeches in Warner, including (87 Cr. App. R. at p. 251)

Lord Lane goes on to point out that the 1971 Act was passed with a view to elucidating some of the problems which arise from the speeches in Warner. Referring to the situation in McNamara where the appellant had a box containing drugs on the back of his motorcycle, Lord Lane then says:

Having quoted Section 28(1) and (3), which embody part of the new approach, Lord Lane concludes (87 Cr. App. R. at p. 252):

In my respectful opinion that passage states the law correctly, except that, for the reasons which I have explained, I consider that in McNamara the appellant required to bring himself within the scope of Section 28(2) rather than of Section 28(3)(b)(i).

A similar approach has been adopted in Scotland. In a passage in his opinion in McKenzie v. Skeen which is not reproduced in the Scots Law Times report, the Lord Justice General remarked:

Lord Emslie's general approach is clear, even although he went on to say that on the particular - and very special - facts as stated in that case he was unable to draw the necessary inference that the appellant knew that there was a minute quantity of cannabis flakes in a jar containing cannabis seeds, the seeds not being a controlled drug.

In his opinion in the same case Lord Cameron expressed a similar view about the general approach. He cited Warner as authority for holding that

I note en passant that, despite what is said in the Scots Law Times report, there is nothing in the papers which we have recovered from the Scottish Record Office to indicate whether Lord Johnston, the third member of the court, concurred with the Lord Justice General or with Lord Cameron. It is therefore not possible to identify the precise ratio of the decision. In practice, however, this passage from Lord Cameron's judgment has generally been followed by Scottish judges when charging juries. More recently, some uncertainty about the correct approach seems to have crept in after the decision of this court in Sim v. H.M. Advocate 1996 S.C.C.R. 77.

In Sim the appellant was charged with being in possession of Temazepam capsules with intent to supply them. The capsules were in transparent self-sealing plastic bags inside an opaque unsealed plastic grocery bag which was in the wardrobe in the appellant's bedroom. The trial judge directed the jury that

The appeal appears to have been based on another passage in the judge's charge which was said to be inconsistent with this passage. The contention was that there was a confusion between the statements which would be likely to have misled the jury. The court held that there was no confusion and that it was clear what the trial judge was saying. The Lord Justice General (Hope), giving the opinion of the court, added:

The written ground of appeal by Moore was indeed based on this passage which was said to be authority for the view that the Crown required to prove that he knew "the general character" of the contents of the bags. Plainly, the trial judge in Sim went further than Lord Cameron in McKenzie and, in so far as he directed the jury that the Crown must prove that the accused knew "the general character" of the contents of the bag, I consider that the direction was unduly favourable to the accused. For the reasons which I have given, I am satisfied that the Crown would have discharged their initial burden by proving that the accused knew that the bag was in the wardrobe, that it contained something which turned out to be Temazepam capsules and that the bag and its contents were under his control. The judgment of the court in Sim proceeded on the basis that the approach in McKenzie was correct and the court regarded the passage in the trial judge's charge as having been intended to reflect that approach. Indeed it is clear that the focus of the appeal was, not on the passage of the judge's charge which I have quoted, but on a supposed confusion arising out of another passage. In rejecting the criticism of the judge's charge, therefore, the court were not intending to lay down any rule which conflicted with what Lord Cameron had said in McKenzie and their opinion should not be read as doing so. The approach of Lord Cameron in this matter should be followed.

Even though that approach has been enshrined in our law for more than twenty years, it can still seem surprising that, technically, for instance, a taxi driver who agrees in all innocence to collect a suitcase, which obviously contains something, and carry it to some destination will, when carrying the suitcase, be in possession both of the case and of the controlled drugs which it contains. This makes it all the more important to stress that Section 28(2) provides a complete defence for the taxi driver to any conceivable charge under Section 5(3). The role of Section 28(2) and (3) is therefore crucial in providing innocent people with a defence and it is therefore singularly unfortunate that the courts should have banished section 28(2), in particular, from their sight.

At the risk of some repetition, the way in which sections 5 and 28 of the 1971 Act are intended to operate may be more readily understood with the aid of simple examples. (In Section 5(3) charges, of course, the Crown requires to prove not merely possession but an intent to supply - which they usually invite the jury to infer from surrounding circumstances or from the quantity or form of the drugs. For the sake of simplicity, however, I concentrate simply on the issue of possession.)

Suppose that police officers search a house where the accused lives with other people and in the course of the search the officers find a bag containing Ecstasy tablets. The Crown prosecute the accused on a charge of being in possession of Ecstasy. At his trial the accused may say a number of things.

First, he may say that he was completely unaware that the drugs were in the house and that, if they were, they must have belonged to one of the other occupants. It is for the Crown to establish that the accused knew that the bag was in the house, that he had control of it and that it contained Ecstasy. If they fail to establish any of those elements, then the prosecution will fail, simply because the Crown will not have discharged the burden of proof which lies on them. So far as knowledge and control are concerned, in directing a jury, the judge will simply say that, if any of the evidence leaves them with a reasonable doubt as to whether the accused knew that the bag was in the house or as to whether he had it under his control, then the accused must be acquitted. No issue under Section 28 arises.

Alternatively, if the Crown prove that there were Ecstasy tablets in the bag, the accused may say that, although he knew that the bag was in the house and contained something, and although he had it in his control, none the less he did not know that it contained tablets. In that situation, since the accused is admitting knowledge and control of the bag and its contents, the Crown have discharged their burden of proof. The accused will therefore be convicted, unless he proves that he did not know nor suspect nor have reason to suspect that the tablets were in the bag. If he proves this, then, even though he was in possession of the tablets, he must be acquitted in terms of Section 28(2). In a case like that the trial judge should direct the jury to consider whether they are satisfied, on a balance of probabilities, that the accused did not know nor suspect nor have reason to suspect that the tablets were in the bag. If they are so satisfied, they must acquit; if they are not so satisfied, they must convict.

Thirdly, if the Crown prove that there were Ecstasy tablets in the bag, the accused may say that, although he knew that the bag was in the house and although he had it in his control and even although he knew that it contained tablets, none the less he did not know that the tablets comprised Ecstasy. In that situation also, the accused is admitting that he was in possession of the Ecstasy tablets and the Crown have discharged their burden of proof. The accused will therefore be convicted unless he brings himself within the scope of the defences in Section 28(3). To do so, it will not be enough for him to prove that he thought that the tablets were a different controlled drug - heroin rather than Ecstasy, for instance. As Section 28(3)(a) shows, that is not a defence. But the accused will have a defence in terms of Section 28(3)(b)(i) if he proves that, even though he knew that he had the tablets, he neither knew nor suspected nor had reason to suspect that they were a controlled drug. In that situation therefore the trial judge should direct the jury to consider whether they are satisfied, on the balance of probabilities, that the accused neither knew nor suspected nor had reason to suspect that the pills were a controlled drug. If they are so satisfied, they must acquit; if they are not so satisfied, they must convict. Mutatis mutandis the same applies in the special case covered by Section 28(3)(b)(ii).

I do not suggest that these clear-cut illustrations exhaust the possibilities. For example, a person accused of having Ecstasy tablets in his possession with intent to supply might give evidence that an individual had been in the habit of leaving bags at his house and that he had always understood that they contained pornographic videos. He could go on to say that, on the occasion referred to in the charge, he had been staying at his girlfriend's flat and so had been unaware that the bag in question had been left in his house. The jury might reject the accused's evidence that he did not know of the presence of the bag on the particular occasion, but accept his evidence that he had believed that the bags left with him contained videos. They could therefore acquit him on the basis of the defence in Section 28(2), viz. that he neither knew nor suspected nor had reason to suspect that the bag in question contained the pills which turned out to be Ecstasy.

In such a case the judge would require to direct the jury that they should first consider whether, on the basis of all the evidence, including the evidence given by the accused, they are satisfied beyond reasonable doubt that, on the occasion in question, the accused knew that the bag was in his house, that he was aware that it contained something and that he had control of the bag and its contents. If they are not so satisfied, they should acquit the accused because the Crown would have failed to prove that the accused was in possession of the tablets. The judge should go on to direct the jury that, even if they are satisfied that the accused had possession of the bag and its contents, they should then go on to consider whether, on all the evidence, they are satisfied, on the balance of probabilities, that the accused neither knew, nor suspected nor had reason to suspect, that the Ecstasy tablets were in the bag. If they are so satisfied, they must acquit the accused; if they are not so satisfied, they must convict him.

It is similarly possible to conceive of a defence being open under Section 28(3)(b)(i) even although the accused's primary position is that he did not know that he had the tablets on the occasion in question.

For instance a person accused of possession of Ecstasy tablets with intent to supply might give evidence that a friend had been in the habit of leaving bags at his house from time to time and that he (the accused) had known that they contained tablets, but had always understood that the tablets were some (uncontrolled) "lifestyle" drug which his friend was selling on the black market. In this case also he could go on to say that, on the occasion referred to in the charge, he had been staying at his girlfriend's flat and so had been unaware that the bag in question had been left in his house. Here too the jury might reject the accused's evidence that he did not know of the presence of the bag in his house on the particular occasion, but accept his evidence that he believed that the bags left with him contained tablets of some (uncontrolled) lifestyle drug. They could therefore acquit him on the basis of the defence in Section 28(3)(b)(i), viz. that he neither knew nor suspected nor had reason to suspect that the tablets comprised a controlled drug.

In such a case the judge would require to direct the jury that they should first consider whether, on the basis of all the evidence, including the evidence given by the accused, they are satisfied beyond reasonable doubt that on the occasion in question the accused knew that the bag was in his house, that he was aware that it contained something and that he had control of the bag and its contents. If they are not so satisfied, they should acquit the accused because the Crown would have failed to prove that the accused was in possession of the tablets. The judge should go on to direct the jury that, even if they are satisfied that the accused had possession of the bag and its contents, they should then consider whether, on all the evidence, they are satisfied, on the balance of probabilities, that the accused neither knew, nor suspected nor had reason to suspect, that the tablets comprised a controlled drug. If they are so satisfied, they must acquit the accused; if they are not so satisfied, they must convict him.

I have so far discussed the application of Section 28 to charges involving possession under Section 5. But, as Section 28(1) shows, Section 28 also applies to charges of supply or of being concerned in supplying under Section 4(3). Since Section 28(1) does not indicate that Section 28 is to operate differently in relation to different provisions, it must be intended to operate in the same way in all cases. This in turn means that, just as the initial onus remains on the Crown under Section 5, so also the initial onus remains on the Crown under Section 4(3). So, for instance, under Section 4(3)(b) the Crown will require to prove both that the accused was concerned in supplying a product or substance and that the product or substance was the controlled drug libelled in the charge.

In the case of Section 5, the use of the word "possession" entails the need for the Crown to establish the necessary degree of knowledge. In my view, equally, the use of the words "concerned in" in Section 4(3)(b) shows that the accused person must have a degree of knowledge. One cannot be "concerned in" supplying a controlled drug, if one is not aware of being involved in supplying. At the hearing of the appeals an example was given of a bus driver who drives his bus from point A to point B. The driver is unaware that someone at point A has concealed controlled drugs, say, Ecstasy tablets, in a secret compartment on the bus and that someone else will remove the drugs at point B. When the bus, driven by the driver, carries the Ecstasy tablets from A to B, that may be a vital part of the mechanism by which they are supplied to the person who collects them. None the less, since he is quite unaware that his bus is carrying the drugs, the driver cannot be said to be "concerned in" supplying them.

But, just as with possession, so also in Section 4(3) cases, the question arises as to the degree of knowledge which the Crown must establish. In my view, by a parallel train of reasoning to that which applies in Section 5 cases, the Crown must establish that the accused knew that he was involved in supplying something, and must prove that the thing which he was concerned in supplying was the controlled drug libelled in the charge. Provided that the Crown establish those elements, they have done all that is required under Section 4(3)(b). The accused will then be convicted unless he can establish one of the defences in Section 28.

I shall require to examine Tudhope v. McKee 1987 S.C.C.R. 663 in more detail below, but at present I simply note that in McKee the Lord Justice Clerk (Ross) drew a distinction between Section 5 cases, involving possession - where the Crown required to prove the appropriate degree of knowledge - and cases under Section 4(3)(b). He said that in his opinion "section 4(3)(b) is an offence of strict liability subject only to the defence afforded by section 28 of the Act." Neither of the other judges expressed that view. It is not entirely clear to me what the Lord Justice Clerk intended to convey by saying that the offence was one of strict liability. If, as I think likely, he was merely saying that in a Section 4(3)(b) case the Crown did not require to prove that the accused knew that the subject-matter of the supply was a controlled drug, then I agree. If, on the other hand, he meant that it was sufficient for the Crown to prove that, as a matter of fact, the accused was involved in supplying a controlled drug and that the onus then shifted to the accused to show that he did not know that he was involved, then, for the reasons which I have given, that would not in my view be an accurate statement of the law.

Again, examples may help to show how these issues may arise in practice. In the bus driver example given above, the Crown would have to prove that the accused knew that he was involved in carrying the items, which were proved to be controlled drugs, from point A to point B where they were to be picked up. If the jury believe the accused when he says that he did not know of the secret compartment or that there was anything in it, or if on the evidence as a whole they have a reasonable doubt, then they must acquit the accused since the Crown will have failed to prove that he had the requisite knowledge to be "concerned in" supplying the drugs. No Section 28 issue arises.

On the other hand the accused may give evidence to the effect that, although he knew that there was a secret compartment and that there was something in it, he thought that it contained pornographic videos and therefore thought that he was involved in transporting those videos from A to B where someone was to pick them up. In that situation, the accused would be admitting being concerned in supplying the items which, as the Crown would have proved, were actually controlled drugs. The Crown would therefore have done all that was required to secure a conviction under Section 4(3)(b). None the less, if the accused satisfies the jury, on the balance of probabilities, that he thought that the items were videos and that he neither knew nor suspected nor had reason to suspect that they were controlled drugs, then he will have established a defence under Section 28(2) and will require to be acquitted. In such cases, the jury should be directed that, even if they are satisfied beyond reasonable doubt that the accused knew that he was involved in supplying the items which were in fact controlled drugs, they must go on to consider whether they are satisfied, on the balance of probabilities, that he neither knew nor suspected nor had reason to suspect that the items were controlled drugs rather than videos. If they are so satisfied, they must acquit the accused; if they are not so satisfied, they must convict him.

Finally, the bus driver may admit that he knew that the concealed compartment contained the actual substance or product, say, tablets, and the Crown prove that the tablets comprised Ecstasy. Again, if the jury accept the evidence, the Crown will have proved all the necessary elements for conviction. If all that the accused proves in reply is that he thought that the tablets were heroin rather than Ecstasy, then that will provide no defence (Section 28(3)(a)). But he may say that he thought that the tablets were some lifestyle drug and that he thought that he was involved in a black market operation to supply that lifestyle drug, which is not a controlled drug. He is seeking to make out a defence under Section 28(3)(b)(i). The jury should be directed that, even if they are satisfied beyond a reasonable doubt that the accused was concerned in supplying Ecstasy, they must go on to consider whether they are satisfied, on the balance of probabilities, that he did indeed believe that he was concerned in supplying the lifestyle drug and neither suspected nor had reason to suspect that he was in fact concerned in supplying Ecstasy. If they are so satisfied, they must acquit the accused; if they are not so satisfied, they must convict him. Mutatis mutandis in an appropriate case the same would apply to a person who was entitled to invoke the special defence in Section 28(3)(b)(ii).

These clear-cut illustrations are again not intended to be exhaustive and, just as with possession, there may be circumstances where the accused does not admit involvement but the jury find that he was involved, and yet it is still open to him to satisfy the jury that he has a defence in terms of Section 28(2) or Section 28(3)(b)(i).

Suppose that the bus driver gives evidence to the effect that he had been aware that someone at point A had been in the habit, from time to time, of putting a package into the hidden compartment in his bus on the evening before the bus was due to travel to point B, but that he (the bus driver) had always thought that the package contained pornographic videos and had had no reason to suspect that it contained controlled drugs. He goes on to say that, because he had been on holiday until the morning of the particular day in question, he had not actually been aware that there was any package in the secret compartment on this occasion. The jury would be entitled to reject the accused's evidence that he had been off work and so had been unaware of the package being put in the compartment, but still accept his evidence that he had always thought that such packages contained videos. If they did so, the jury could then acquit the accused on the basis that he had made out a defence under Section 28(2), viz. that he neither knew nor suspected nor had reason to suspect that the items which he was involved in supplying were controlled drugs rather than videos.

The judge should direct the jury that they must first consider whether, having considered all the evidence, they are satisfied beyond reasonable doubt that the accused knew that he was involved in carrying the items, which were proved to be Ecstasy tablets, from point A to point B where they were to be picked up. If the jury are not so satisfied beyond reasonable doubt, then they must acquit the accused since the Crown will have failed to prove that the accused was concerned in supplying the items in question. If, however, they are satisfied beyond reasonable doubt that the accused was concerned in supplying, they must go on to consider whether, on all the evidence, they are satisfied, on the balance of probabilities, that the accused neither knew nor suspected nor had reason to suspect that the items were controlled drugs rather than videos. If they are so satisfied, they must acquit the accused; if they are not so satisfied, they must convict him.

Similarly, a defence under Section 28(3)(b)(i) may be open even where the accused's basic position is that he was not involved in supplying. Again we may suppose that the bus driver, charged with being concerned in supplying Ecstasy tablets, gives evidence to the effect that he had been aware that someone at point A had been in the habit, from time to time, of putting a package into the hidden compartment in his bus on the evening before the bus was due to travel to point B, and that he had been aware that such packages contained tablets but had always thought that the tablets comprised an (uncontrolled) lifestyle drug. He goes on to say that, because he had been on holiday until the morning of the day in question, he had not actually been aware that there was any package in the secret compartment on this occasion. The jury would be entitled to reject the accused's evidence that he had been off work and so had been unaware of the package being put in the compartment, but still accept his evidence that he had always thought that such packages contained tablets of the lifestyle drug. The jury could then acquit the accused on the basis that he had made out a defence under Section 28(3)(b)(i), viz. that he neither knew nor suspected nor had reason to suspect that the tablets which he was involved in supplying were controlled drugs.

In this kind of case the judge should direct the jury that they must first consider whether, having considered all the evidence, they are satisfied beyond reasonable doubt that the accused knew that on the occasion in question he was involved in carrying the package containing the tablets which were proved to be Ecstasy, from point A to point B where they were to be picked up. If the jury are not so satisfied beyond reasonable doubt, then they must acquit the accused since the Crown will have failed to prove that he was concerned in supplying the items in question. If, however, they are satisfied beyond a reasonable doubt that the accused was concerned in supplying the tablets on the occasion in question, they must go on to consider whether, on all the evidence, they are satisfied, on the balance of probabilities, that the accused neither knew nor suspected nor had reason to suspect that the tablets comprised Ecstasy rather than an (uncontrolled) lifestyle drug. If they are so satisfied, they must acquit the accused; if they are not so satisfied, they must convict him.

In some of the Scottish authorities there is an indication that, in cases where the Crown rely on concert to establish guilt of a Section 4(3)(b) offence, the Crown must prove that the accused knew that they were concerned in supplying a controlled drug. This proposition first emerged in McCadden v. H.M.A. 1986 S.C.C.R. 16. In that case the appellant and a co-accused were charged with being concerned in the supplying of heroin "while acting along with others". The evidence showed that the appellant drove his co-accused, who acted as a courier, to a café where he pointed out another man (named McQuade) to the co-accused. The co-accused left the car and approached McQuade. The co-accused and McQuade then came over to the car and spoke to the appellant who drove off. Thereafter the co-accused and McQuade met a third man who gave the co-accused a bag of heroin. There was also evidence of the appellant and another man visiting McQuade's house and of a visit by the appellant and McQuade to London. At the trial, the judge directed the jury that, before they could convict the appellant of being concerned in supplying a controlled drug, they required to be satisfied beyond reasonable doubt that he knew that a controlled drug was the subject of this elaborate plan for handing over the bag to the co-accused in his capacity as a courier. The appellant appealed on the ground that there was insufficient evidence for the jury to draw that inference. The court refused the appeal.

As is clear from the report, the only issue argued in the appeal was whether there had been sufficient evidence for the jury to draw the inference that the appellant knew that a controlled drug was the subject of the plan. The Crown did not argue that it would have been enough for conviction if the jury had been satisfied that the appellant knew that he was involved in a plot to supply something without knowing that it was a controlled drug. The question of the necessary degree of knowledge was therefore never considered by this court in that case. I also note that the court proceeded on the basis that it had been made plain to the jury that the conviction of the appellant depended upon the principle of concert. Any direction to that effect would have been unnecessary, however: on the evidence the jury would have been entitled to infer that the appellant, as an individual, was concerned in supplying - in particular by taking the courier to the place where he met McQuade and by pointing McQuade out to him, thereby putting the courier in touch with the man who eventually indicated where he was to get the drugs. I respectfully refer to, and adopt, the approach of the Lord Justice General (Hope) in Clements v. H.M. Advocate 1991 J.C. 62 at pp. 68 and 70, which was followed by Lord Marnoch in H.M. Advocate v. Hamill 1998 S.C.C.R. 164 at p. 166C.

In due course McCadden was cited to the court in McKee as support for a contention that, in a charge under Section 4(3)(b), the Crown had to prove that the accused knew that the subject of the supply was controlled drugs. In McKee the respondent had been convicted of being concerned in supplying cannabis resin in contravention of Section 4(3)(b). The facts in the Stated Case showed that she had passed a small package to a prisoner sitting in the dock in the District Court in Glasgow. When a police officer detected this, the prisoner tried to swallow the package. The package was retrieved and was found to comprise three pieces of cannabis resin, weighing about three-quarters of an ounce, wrapped up in a yellow balloon, which was in turn wrapped in clingfilm. It was not possible to see the contents until the package was opened. The Sheriff sustained a submission of no case to answer on the ground that the Crown required to prove that the respondent knew that what she was handing to the prisoner was a controlled drug and, on the evidence, he was unable to infer that she knew this.

I pause to observe that the proper charge for the Crown to have brought in McKee would have been one of supplying, under Section 4(3)(a), rather than of being concerned in supplying under Section 4(3)(b). The Crown's decision to use a Section 4(3)(b) charge, when another was the appropriate charge, complicated the picture quite unnecessarily.

In McKee counsel for the respondent founded on what had been said in McCadden as support for his contention that the sheriff had been correct in holding that the Crown required to prove that the respondent knew that there were controlled drugs in the package. Although, as I have pointed out, in McCadden this court had not considered the question of the degree of knowledge necessary for a Section 4(3)(b) conviction, the Lord Justice Clerk distinguished McCadden on the basis that the decision had depended on concert. He continued:

In view of what is said in Rodden v. H.M.A. 1994 S.C.C.R. 841, which I shall discuss in a moment, it is worth noting that in this passage it was only in the case of the accused who was to be convicted on the basis of concert that the Lord Justice Clerk stipulated that he required to know that the common purpose related to controlled drugs. Having distinguished cases involving concert, the Lord Justice Clerk went on to hold that, since no question of concert arose in McKee, there had been no need for the Crown to prove that the appellant had known that she was handing over a controlled drug. On the other hand, if the appellant could prove her lack of knowledge of the contents, she might "be able to establish a defence under Section 28(3)".

In my view the court reached the correct result in McKee even though any reference to Section 28(3) was misplaced. For the reasons which I have set out above, given that the charge was libelled under Section 4(3)(b), the Crown discharged their onus by proving that the package contained cannabis resin and that the respondent was aware that she was involved in supplying the contents of the package to the prisoner. The respondent then fell to be convicted, unless she proved, in terms of Section 28(2), that she did not know and did not suspect nor have reason to suspect that there was a controlled drug in the package. Since there was no evidence to prove that, the respondent should have been convicted and the court was right to allow the Crown's appeal.

The matter of concert arose again in Rodden. The appellant was charged, along with a co-accused, with being concerned in supplying cannabis resin on a specific date on a road in Fife and in a car on that road. The police had been keeping the road under observation and they stopped a car driven by the appellant. They asked the appellant and the co-accused, who was a passenger in the car, to leave the car. As the co-accused was walking from the car, he appeared to stumble. The search revealed nothing and the appellant and the co-accused drove away. After they had left, the police searched the area and found four pieces of cannabis resin. They suspected that this might have been dropped by the two men whom they had searched and they suspected that they might return to look for it. The police therefore left the resin on the ground. About twenty minutes later the car returned and the police saw the two men get out and look around in an agitated fashion. They were down on their hands and knees looking for something at about the spot where the pieces of resin had been found. The police stopped and searched the appellant and co-accused once more and two pieces of resin were found on the co-accused. There was evidence that they were two of the four pieces which the police had found after the first search. At the trial the co-accused gave evidence that he had been looking for a key. Both the appellant and the co-accused were convicted.

Under reference to McKee, the Crown argued that being concerned in supplying a controlled drug was an offence of strict liability, subject only to Section 28, and that it had therefore not been necessary for the Crown to prove that the appellant knew what his co-accused was looking for. The court rejected that submission. Giving the opinion of the court, Lord Justice Clerk Ross stated that

Approaching the matter on that footing, the court held that there was sufficient evidence to allow the jury to draw the inference that the appellant and his co-accused were engaged together in a common criminal purpose, namely that they were concerned in the supplying of a controlled drug. Moreover, despite somewhat confusing directions, the jury must have appreciated that they were being asked to determine whether the appellant and his co-accused were acting together when they were seen in an agitated and anxious way to be searching at the locus for something which turned out to be a controlled drug. The appeal was therefore refused.

In Rodden also I have difficulty in understanding why the Crown chose to charge the accused with a contravention of Section 4(3)(b). The facts suggest that the men would have been more appropriately charged with being in possession with intent to supply in terms of Section 5(3). By forcing these particular facts into a Section 4(3)(b) charge, the Crown ran the risk of distorting the application of the legislation.

The evidence that the co-accused appeared to stumble suggests that it was the co-accused who dropped the cannabis resin. This in turn suggests that it was the co-accused who had it when the men were stopped originally. It was certainly he who had it when they were searched for a second time. Assuming that the quantities or form of the resin would have permitted the jury to draw the inference that the co-accused intended to supply the resin, the Crown would have had a sufficient basis for seeking a conviction of the co-accused for being in possession of the cannabis resin with intent to supply. The Crown could have sought a conviction of the appellant on that charge, however, only on an art and part basis. In order to convict the appellant of possessing the resin with intent to supply, the Crown would have required to show that the appellant knew that the co-accused had a controlled drug which he intended to supply and that the appellant and the co-accused were engaged on a common enterprise in relation to the supply of the drug. Since the Crown chose to dress up what was really a possession case as a charge of being concerned in supplying cannabis resin, in my view this court was right to hold that the appellant could be convicted only if the jury were satisfied that he knew that the transaction involved a controlled drug.

The statement in the Lord Justice Clerk's opinion, which I have quoted, goes further, however, than was necessary for the disposal of that case and it is accordingly obiter. It appears to say that the mere fact that the Crown has framed a charge on an art and part basis somehow imposes upon the Crown the need to prove knowledge on the part of each accused, which the Crown would not need to prove if they were not charged on that basis. Neither McCadden nor McKee is authority for a statement of this breadth and in my view, as a general proposition, it cannot be correct - as a simple example makes clear. Suppose that there is ample evidence against an accused of his activities as a courier, carrying packages which contain controlled drugs. The Crown charge him with being concerned in supplying controlled drugs. If the Crown establish that the packages contained controlled drugs and that the accused knew that he was involved in supplying the contents of the packages, they will be entitled to seek a conviction without proving that the accused knew that the packages contained controlled drugs - subject to any defence that the accused may put forward in terms of Section 28. The dictum in Rodden would suggest that the position would alter, however, if, say, the Crown charged the accused's wife on the basis that she had been party to the accused's activities. By choosing to charge the accused and his wife on an art and part basis, it is said, the Crown would be required to prove that the accused knew that the packages which he was carrying contained a controlled drug. There can be no such rule: a change in the drafting of the statutory charge cannot alter what Parliament requires for its proof. In the example which I have given, whether the accused is charged alone or along with his wife, the degree of knowledge on the part of the accused which the Crown have to prove remains the same.

I shall require to deal briefly with the matter of concert when I come to examine Salmon's appeal. In discussing McKee and Rodden I have proceeded on the assumption that concert can arise in cases under Section 4(3)(b). Like Lord Bonomy, however, I share the doubts expressed by Lord Marnoch in H.M.A. v. Hamill supra as to what room, if any, there is for concert to apply in these cases if the accused is participating in the operation of supplying. It is, however, unnecessary for present purposes to explore the matter and I accordingly reserve my opinion.

I would add one further comment. At first sight it seems strange that the issue of the degree of knowledge which the Crown must prove in Section 4(3) or Section 5(2) or (3) cases should be coming before the court for full argument so long after the legislation came into force. On reflexion I think, however, that this is because in most trials the issue does not really arise in this form. The Crown's contention will usually be that the whole circumstances, including tick lists or other drugs paraphernalia, demonstrate that the accused was well aware that what he possessed or was concerned in supplying was controlled drugs. Usually also, the defence will be that the accused knew nothing about the drugs and had nothing whatever to do with any supplying. In cases fought out on that stark basis, the jury's verdict will depend on how they resolve that broad conflict rather than on the precise nature or degree of the knowledge to be proved. So, however important these issues may be from a theoretical point of view, in practice they are likely to occur only comparatively rarely in trials or in appeals to this court.

With these general observations on the approach to the legislation, I turn to deal with the individual appeals. In doing so I gratefully adopt the reasoning of Lord Bonomy in his opinion which I have studied in draft, but in view of the importance of the matter I add some observations of my own.

At an early point in his charge to the jury in Salmon's case the trial judge explains to them, in the usual way, that the burden of proof lies on the Crown throughout and he then adds:

I suspect that the words "in a broad reply" are not an accurate transcription of what the judge actually said, but it is clear that he was signalling that he would return to the matter and give them a further direction as to circumstances in which, exceptionally, the onus would not lie on the Crown and it would be for the accused to prove something. There appear to be two passages later in his charge which have a bearing on the point. The first occurs after he has explained that the offence is one of being concerned in supplying a controlled drug in contravention of Section 4(3)(b). Having given that explanation, the trial judge adds that the first qualification attaching to the subsection is created by the words "Subject to section 28 of this Act". He goes on:

The trial judge then gives certain other directions about the meaning of Section 4(3)(b) and in particular he refers to the phrase "being concerned in the supplying of controlled drugs." He adds:

The other passage dealing with knowledge comes in the section of his charge where the judge is summarising the position of the Crown and the defence in relation to the evidence. His summary of the defence position includes this passage:

The transcription should presumably read "what I had to say to you about Section 28 of the Act".

At the trial the Crown had led evidence that the contents of the bag on the back seat of the car were cocaine. The Crown case was that Salmon was concerned in supplying the cocaine which was in the bag. To discharge the initial onus on the Crown, they required to satisfy the jury beyond reasonable doubt that the bag contained cocaine and that Salmon knew that he was involved in a scheme to supply the contents of the bag. In my view that was the appropriate test in the present case, even though Salmon and his co-accused were charged with being concerned in supplying "along with another". This was not a situation in which the Crown case rested on Salmon being party to the actings of others. Rather, the evidence showed that he, as an individual, had been concerned in supplying. That being so, the appropriate legal test was the one which I have described.

In determining that issue the jury would have been entitled, of course, to take into account the appellant's presence in the hotel with the other man, the fact that the drugs were in his car, the fact that when the police arrived he escaped from the scene and concealed himself in a stream, as well as the fact that glucose and bicarbonate of soda had been taken to his house where there were books on drugs - the Crown's contention being that it had been the intention to take the drugs to Salmon's house to prepare them for distribution. Indeed, in reality, this was a case where the Crown were inviting the jury to hold beyond reasonable doubt that Salmon well knew that there was cocaine in the bag. And at the hearing of the appeal Mr. Davidson accepted that the surrounding facts and circumstances would have entitled the jury to conclude that Salmon was well aware that the bag was in the car and that it contained controlled drugs. None the less, it was a matter of fact for the jury to determine and at the trial the contention for the defence was that they should not be satisfied beyond a reasonable doubt that Salmon was concerned in supplying the cocaine. Salmon did not give evidence, but in deciding whether the Crown had established their case, the jury required to take into account the fact that, in his statement to the police, he had said that he did not know that the bag was on the back seat of the car. They also had to consider the defence contentions that the money found in Salmon's house was not a particularly significant sum and might have derived in any event from car sales; and that Salmon had had nothing to do with bringing the glucose and bicarbonate of soda to his house.

Given the approach of the Crown and defence, the only question for the jury was whether the Crown had established beyond reasonable doubt that Salmon was concerned in supplying the contents of the bag. No further and separate issue arose under Section 28 and in particular no issue arose under Section 28(3)(b)(i), since counsel for Salmon never suggested - nor was there any evidence to prove - that, while he knew that the bag contained powder, he neither knew nor suspected nor had reason to suspect that the powder was a controlled drug. Indeed in the circumstances of this case any such defence would have been inconsistent with Salmon's actual defence that he knew nothing about the bag.

The trial judge's directions are open to criticism. In the first place, at no point does he spell out to the jury that they required to be satisfied beyond a reasonable doubt that the bag contained cocaine - a matter which was, of course, not in dispute - and that Salmon knew that he was involved in supplying the contents of the bag. Moreover, by quoting McKee and Section 28(3)(b)(i) - which had no bearing on the issue which the jury required to determine - the trial judge not only introduced an unnecessary complication but, especially by referring to strict liability, he ran the risk of leaving the jury confused as to where the onus of proof lay. Nor, in my opinion, is the position helped by the later passage in the judge's charge where he directed the jury that "if you were to accept" Salmon's statement to the police that he did not know of the existence of the bag in the back of the car, "that would, of course, be a very substantial step towards an acquittal". The use of the phrase "if you were to accept" was not criticised in the grounds of appeal. None the less it would have been preferable for the judge to direct the jury that, even if they did not actually accept the statement, if it gave rise to a reasonable doubt, they would require to acquit Salmon. Looking at the directions as a whole, while I have considerable sympathy with the trial judge in the light of the somewhat confused state of the authorities in this area of the law, I am satisfied that his directions did not give the jury adequate guidance as to the approach which they required to adopt in reaching their verdict. Moreover, although there was plainly ample evidence for the jury to convict Salmon, the lack of proper directions means that it is impossible to be sure that they applied the correct test in reaching their verdict. Nor can it be said that there was only one verdict which they could have returned. In these circumstances in this case there has been a miscarriage of justice. I therefore move your Lordships to set aside the verdict and quash Salmon's conviction on Charge 1. In that event we shall require to hear parties on any motion by the Crown for authority to bring a fresh prosecution in accordance with Section 119 of the Criminal Procedure (Scotland) Act 1995.

As I have explained, in Moore's written grounds of appeal, the criticism of the trial judge was that he should have directed the jury that the Crown required to prove that Moore knew that the packages were in his physical possession and control and that he knew of the general character of the contents. It is plain from reading his charge, however, that the trial judge gave entirely proper directions on the need for the Crown to prove that Moore knew that the bags were in the car and that he had control of them. So Miss Dorrian, Q.C., did not press that point. Nor, in the light of the discussion of the authorities at the hearing, did she maintain the contention that the Crown required to prove that Moore knew of the general character of the contents of the bags. In my view counsel was correct to adopt that attitude.

So far as the Peckhams bag is concerned, the only issue for the jury was whether the Crown had established beyond reasonable doubt that Moore knew that the bag was concealed behind the fascia. No issue under Section 28 arose in relation to that bag, as Miss Dorrian rightly accepted. She contended that the position was different in respect of the other bag, found between the seats. Here, she said, there was a defence open to Moore under Section 28(2). Therefore the trial judge had erred in not directing the jury that, even if they were satisfied beyond reasonable doubt that Moore was in possession of this bag and its contents, they should go on to consider whether they were satisfied, on the balance of probabilities, that he neither knew nor suspected nor had reason to suspect that the bag contained a controlled drug.

Although the trial judge had not had the opportunity to prepare a supplementary written report on this additional ground of appeal, he informed the court that in his recollection the defence had not approached the matter in that way at the trial and in particular had not suggested that he should give a direction in these terms.

In describing the defence evidence in his charge to the jury, the trial judge narrated Moore's account of events up to the time when he parked the car and he then continued:

At an earlier point in his charge, when dealing with the need for the Crown to prove their case, the trial judge said:

As these passages indicate, Moore's position at the trial was that he knew nothing about the Peckhams bag behind the fascia and that the first he knew of the other bag was when it landed at his feet and he picked it up and Davis grabbed it and Moore said "What's this?" and repeated the question. The police then arrived. In substance Moore's defence was that, apart from the momentary contact when the bag fell at his feet and he picked it up, he knew nothing of the bag or its contents. In other words he was contending that he was never in possession of the bag. If the jury accepted his evidence or it gave rise to a reasonable doubt, then, as the judge explained, their duty was to acquit Moore, on the basis that the Crown had failed to prove that he had the necessary knowledge and control of the bag and its contents. But the jury determined that critical question by convicting Moore of being in possession. They must therefore have accepted the quite different evidence for the Crown, to the effect that the bag was on the driver's area of the floor and that Moore picked it up, passed it to Davis and told him to ditch it. In accepting the Crown evidence of possession, the jury must by implication have rejected Moore's evidence. Since they had rejected his evidence, there was no basis upon which the jury could have been satisfied that, though he was in possession of the bag, he neither knew nor suspected nor had reason to suspect that it contained Ecstasy tablets. In these circumstances, as the defence obviously recognised at the trial, no issue arose under Section 28(2).

For these reasons I am satisfied that there was no misdirection on the part of the trial judge. Since that was the only basis upon which Moore's appeal was advanced at the hearing, I move your Lordships to refuse the appeal.