Scottish High Court of Justiciary Decisons

GEORGE ALEXANDER MUIRHEAD AND HUGH WILLIAM CAMERON v. HER MAJESTY'S ADVOCATE [1998] ScotHC 14 (13th November, 1998)

On 2 September 1996 the appellants were found guilty after jury trial in the Sheriff Court in Kirkcaldy. The appellant Muirhead was convicted of a charge of contravention of section 4(3)(b) of the Misuse of Drugs Act 1971 in respect that he was concerned in the supplying of amphetamine on 30 December 1995 at the Esplanade, Kirkcaldy. The appellant Cameron was convicted of, firstly, a charge of contravening section 4(3)(a) of the 1971 Act in respect that he supplied amphetamine to Muirhead on that date at the Esplanade and, secondly, a charge of contravening section 4(3)(b) of the 1971 Act in respect that he was concerned in the supplying of amphetamine at 29 Castle Avenue, Crosshill, the Esplanade, Kirkcaldy, and elsewhere in Scotland. The appellants have appealed against these convictions.

As regards the appellant Muirhead, the first ground of appeal is that there was insufficient evidence to entitle the jury to convict him of a contravention of section 4(3)(b). In order to examine this submission it is necessary for us to set out a summary of the relevant evidence which was relied upon in support of conviction.

The Crown led the evidence of Ross Scott, who stated that on 30 December 1995 he visited Kirkcaldy with a view to obtaining amphetamine for recreational purposes. He decided to visit Muirhead and enlisted the help of his brother, Craig Scott, to drive him to Kirkcaldy, but he did not tell him why he wanted to go there. Having reached Kirkcaldy, the brothers went on to Dysart where they called on Muirhead. When they were there Ross Scott asked Muirhead to obtain amphetamine for him. He wanted a quarter of an ounce and had £30 to make the purchase. At about 3 p.m. the brothers and Muirhead left Muirhead's house. Craig Scott drove them to some flats in the Kirkcaldy area. When they arrived there Muirhead got out of the car and went into the block of flats. He returned within five or ten minutes and said that it should be possible to obtain amphetamine. He said that they should drive to a car park at the west end of Kirkcaldy, where they would find a red coloured car. He did not say whom they were to meet. They then returned to Muirhead's house, but shortly thereafter they left again and drove to the car park. On reaching it, Muirhead pointed out a red car to Craig Scott. He stopped his car in such a position as to face the sea, about seven or eight car parking spaces away from the red car, which was parked with its rear towards the sea. Muirhead then got out of Craig Scott's car and walked towards the red car. He entered it and sat down in the front passenger seat. Almost immediately a police car arrived on the scene and stopped in such a position as to prevent the red car from moving. The brothers remained where they were in Craig Scott's car, and in due course were arrested. Ross Scott was in possession of money when he went to see Muirhead, but he could not remember whether or not he gave Muirhead any money.

Craig Scott gave evidence to the same general effect as his brother in regard to their movements during the day. When Muirhead returned to the car at the block of flats he realised that something was going on. They were to meet a red car at the car park. The purpose of that meeting, he thought, was that Muirhead was going to pick up some amphetamine for his brother. There was no discussion in front of him about how much his brother wanted.

Evidence was given by a number of police officers. Detective Constable Ewen Davidson described how, acting on information which had been received, police officers took up position so that they could observe the car park. They had received information about a red car and a transfer of drugs in the car park. He described the arrival of the car driven by Craig Scott, from which one person emerged and entered the passenger side of the red car. Detective Constable McCallum went to the car park with another police officer. They drove up in front of the red car, thereby preventing it from being driven away. Detective Constable McCallum then made his way to the passenger side of the red car and removed both of the occupants. He said that, as he and his colleague were approaching the red car, something was happening since the driver and passenger were inclined towards each other. There seemed to be some form of transaction between them. Neither of the police officers was able to see their hands. Muirhead seemed to bend forward as if he was fumbling with something under the passenger seat. When he was taken from the car he had £30 in his hand. The appellant Cameron was in the driving seat. There were no other persons in the car. Cameron produced £90 from his pocket. In due course Detective Constable McCallum searched the red car and found four small transparent bags containing a white substance which, on subsequent analysis, was found to contain amphetamine. The bags contained four quarter ounce packets, each worth about £30. They were lying loose under the passenger seat. After the appellants were detained police officers in possession of a search warrant entered Cameron's house at 29 Castle Avenue, Crosshill, where they found a wallet containing £1,400 on the livingroom mantelpiece. Cameron's wife, who was called as a Crown witness since she was the complainer in another charge with which we are not concerned, gave evidence as to an explanation for the money, which was that it represented part of a loan from the bank which she had intended to repay.

On behalf of Muirhead Mr. McBride submitted that there was no corroboration of the evidence given by Ross Scott that he had asked Muirhead to obtain amphetamine for him. It was not enough that Craig Scott merely suspected that this was his brother's purpose. He gave no explanation for his suspicion. He gave no evidence as to any conversation between his brother and Muirhead. The fact that the three of them had gone to the car park was consistent with Muirhead wanting to obtain amphetamine merely for himself. He had given that explanation to the police during the course of being interviewed by them. Evidence as to that interview was led by the Crown from police officers.

In our view there was sufficient evidence to entitle the jury to infer that Muirhead was concerned in the supplying of amphetamine at the car park. Apart from the evidence of Ross Scott there was the evidence of his brother that, by the time when they set off from the block of flats, he realised that the object of their going to the car park was so that Muirhead could obtain amphetamine for his brother. Furthermore, there was the fact that all three of them went together to the car park. The jury were entitled to infer that this supported evidence of Ross Scott that this was in order to supply amphetamine to him.

The second ground of appeal advanced on behalf of Muirhead is that the sheriff misdirected the jury in regard to what could be constituted by the offence of being concerned in the supplying of a controlled drug. During the course of his charge the sheriff pointed out to the jury that section 4(3)(b) had a wide application. He said that it meant that

Thus far there was no complaint in regard to his directions. However, the sheriff then continued as follows:

Mr. McBride pointed out the a person could not be guilty of being concerned in the supplying of drugs simply by thinking of supplying them. If, in the present case, Muirhead had entered the red car in search of amphetamine for himself and at some stage or other had merely thought of supplying it or some of it to his friends, the sheriff's definition would entail that he had thereby committed an offence against section 4(3)(b). In these circumstances his misdirection had caused a miscarriage of justice.

It may be that in expressing himself as he did the sheriff was endeavouring to describe to the jury examples of an attempt to supply drugs, after having given them a number of illustrations of activities which could constitute being concerned in their supplying. However, there is no doubt that it was a misdirection for him to convey that simply thinking of supplying controlled drugs could involve a contravention of the section. On the other hand, we are not persuaded that this caused a miscarriage of justice. In the present case the issue, so far as concerned Muirhead, was whether, as the Crown maintained, he was obtaining amphetamine for the purpose of supplying it to Scott Ross or, as he told the police, he was obtaining it merely for his own use. There was no evidence from which it could be inferred that there was any change of mind on his part as to his purpose in acquiring the amphetamine. Accordingly, the reference made by the sheriff to a situation in which someone was merely thinking of supplying drugs had no bearing on the issues at the trial.

In these circumstances we consider that Muirhead's grounds of appeal are without foundation, and refuse his appeal.

On behalf of the appellant Cameron, Miss Scott submitted that the evidence was insufficient to entitle the jury to convict him of the charge of supplying amphetamine to Muirhead. She emphasised that the police officers had not seen anything passing from one occupant of the red car to the other. There was no evidence that Cameron was in possession of the amphetamine, nor that money was given to him. There was no evidence as to the nature of any transaction taking place between the two men. The fact that Ross Scott, according to his evidence, understood that Muirhead would be obtaining amphetamine for him was not evidence against Cameron. Muirhead's statements as to the purpose of going to the car park, from which Ross Scott's understanding was derived, were not evidence against Cameron. There was no evidence that the meeting in the car park arose out of Muirhead getting in contact with Cameron. Although the sheriff had stated in his report that when he was at the car park Muirhead did not have any controlled drug on him, there was no evidence to this effect, although Ross Scott had assented to the suggestion that at the stage when he and his brother were at Muirhead's house, Muirhead did not have any drugs in his possession.

We do not consider that there is substance in this submission. The Advocate depute was in our view correct in submitting that the evidence of Ross Scott that he requested Muirhead to obtain amphetamine for him, and the fact that Muirhead responded by taking him and his brother to the car park, to which Cameron brought his car, provided sufficient evidence, when taken along with what was found in the car, to entitle the jury to conclude that Cameron supplied amphetamine to Muirhead. While this involved reliance on the actions of Muirhead, it did not involve any reliance on statements made by him in regard to anyone else.

The remaining grounds of appeal on behalf of Cameron relate to various criticisms of the sheriff's charge. It is maintained that, while he summarised the evidence which had been presented by the Crown, he omitted to remind the jury of evidence given by a defence witness, Kerry Lindsay. According to the sheriff's report she gave evidence that she knew Cameron through her boyfriend. On 30 December 1995 Cameron had come to her house to return a mobile telephone which he had borrowed. Her boyfriend was helping to repair Cameron's car. She said that Cameron had said that there had been a phone call from Muirhead. He said that he wanted her boyfriend to meet him at the promenade at 4 p.m. Since her boyfriend was not in, she asked Cameron to go and pick up Muirhead, which he agreed to do. She also said that she did not know what type of car Cameron was driving. He did not leave the mobile phone. She said that she was taking amphetamine, and had been told by her boyfriend that Muirhead was bringing amphetamine to her. She did not give any amphetamine to Cameron.

We should say that we are not impressed with this criticism of the sheriff's charge. The evidence given by the witness was primarily relating to what Cameron said to her and was no doubt led in order to convey some second-hand explanation to the jury of why he had gone to the car park. Further, Cameron did not give evidence. The Crown led police evidence as to a "mixed" statement made by him. The fact that Cameron did not give evidence but relied on a second-hand account from Kerry Lindsay might well have justified adverse comment by the sheriff. We do not consider that this criticism of the sheriff's charge has any merit.

Miss Scott also criticised the passage in the sheriff's charge to which he referred in which he sought to give directions to the jury as to the meaning of a charge of being concerned in the supplying of a controlled drug. Once again, while we are satisfied that the sheriff misdirected the jury, we do not consider that there was a miscarriage of justice so far as concerns Cameron. The issue for the jury was whether in a practical sense he was involved in the supplying of amphetamine. There was no suggestion, nor could there have been a suggestion, that he had incurred the risk of conviction merely by thinking of supplying it.

The final, and most important, point in Cameron's appeal concerned the sheriff's approach in his charge to the jury to various statements made by Muirhead to the witnesses Ross Scott and Craig Scott, in a telephone call from an unknown person and to police officers who interviewed him while he was detained following his apprehension in the car park. During that interview he made it clear that he went to the red car in order to purchase amphetamine. While he did not name Cameron his evidence was directly incriminatory of the driver of that car, who was Cameron. Miss Scott accepted that while the evidence as to the statements made by Muirhead were admissible in regard to the charge against him, they were not admissible as evidence against Cameron. There was a plain need for the sheriff to direct the jury to that effect. However, he merely reminded the jury of the gist of Mr. Muirhead's statement, namely that he wanted to obtain some amphetamine for himself. He pointed out that the interview had not been conducted in the same way as evidence given in court, when it would have been subject to cross-examination. He observed:

In reply the Advocate depute was constrained to accept that the sheriff had failed to direct the jury as he should have done, namely that Muirhead's statements to the police were not admissible as evidence against Cameron, and that in the circumstances he could not resist the conclusion that there had been a miscarriage of justice. In these circumstances he invited the court to give authority for the bringing of a fresh prosecution against Cameron in respect of the two charges with which we are concerned.

In making that submission the Advocate depute recognised that this was not the first trial which Cameron had required to undergo. A previous trial in April 1996 required to be deserted when the Crown revealed to the jury that Cameron had a previous conviction. He had been on remand since his arrest in December 1995. Grounds of appeal in respect of the second trial had been lodged on 30 December 1996. These included the complaint that the sheriff failed to direct the accused that statements made by Muirhead to police officers did not constitute evidence which could be used in judging the guilt or innocence of Cameron. A hearing of the appeal in May 1997 had been deferred due to a problem with legal aid. On 10 September 1997 the appeal had been further continued in order to obtain transcripts of the evidence of the two Scott brothers and of Detective Constable McCallum. Miss Scott pointed out that in these circumstances a third trial would take place long after the original events.

Having regard to the long delay which has occurred, and in particular the fact that the appellant Cameron, through no fault of his own, has already required to undergo trial on two occasions, we consider that it is not appropriate for the court to exercise its power to authorise a fresh trial. In these circumstances we will allow his appeal and refuse the motion on behalf of the Crown.