Scottish High Court of Justiciary Decisons

GARY JOHN HUNTER and BRIAN SILVERMAN and RODERICK McLEAN JUNIOR v. HER MAJESTY'S ADVOCATE [1998] ScotHC 19 (11th December, 1998)

The appellants, along with six co-accused were tried in the High Court of Justiciary. The trial commenced on 25 November 1996. At its conclusion on 20 February 1997 the appellants were found guilty of the first charge as amended. This was a charge that they were knowingly concerned in the attempted fraudulent evasion of the prohibition in force in respect of the importation of cannabis resin, contrary to section 170(2)(b) of the Customs and Excise Management Act 1979. The jury's verdicts in respect of the appellants Roderick McLean, Junior and Brian Silverman were by a majority. Their verdict in respect of the appellant Hunter was unanimous. He was also found guilty, under a deletion, of the second charge, which was a charge of attempting to defeat the ends of justice.

As regards the co-accused, Roderick McLean, Senior pled guilty to the two charges at the conclusion of the evidence. Kenneth Corrigan, who faced only the first charge, was acquitted. The remaining four co-accused, who also appeared only in respect of the first charge, were convicted.

The appellants have appealed against their convictions. The remaining co-accused who were convicted by the jury have also appealed against their convictions, but since those appeals raise separate issues and have required a longer time for preparation, it was agreed, with the approval of the court, that the appeals of the present appellants should be heard and determined separately, leaving the remaining appeals to be dealt with in due course.

The Crown case was that the intended importation of cannabis resin, which amounted in value to over £10m, was to be achieved by means of the transfer of those drugs at a pre-arranged point in the North Sea from a ketch, "Isolda", which had sailed from Cadiz and round the west and north coasts of Scotland, to a vessel, "Ocean Jubilee", which had sailed from Wick and was crewed by McLean, Senior and Hunter. After that vessel had re-entered United Kingdom territorial waters, she was boarded, with some difficulty, by customs officials and brought to a Scottish port for examination. The movements of the two vessels had been the subject of the surveillance operation by H.M. Customs and Excise.

By way of background to our consideration of these appeals, it is convenient to set out at this stage an outline of the evidence relating to the main events leading up to the alleged meeting of the two vessels.

There was evidence that on 11 May 1996 McLean, Senior went to Seville. He took with him a card which bore a code word "Eric" and a reference to "channel 8". (The Crown maintained that the latter referred to a ship-to-ship radio communication channel and the former was the name used by him when the two vessels were communicating). On 16 May 1996 Hunter also travelled to Seville. In early June McLean, Senior and McLean, Junior, his son, travelled to an address in London from where two telephone calls were apparently made to Spain. One of these calls was to a person known as "Alf", whom the Crown claimed was the organiser of the venture. In London the McLeans were given a lift in a BMW motor car, which was later seen to be parked beside a Renault Espace vehicle which was registered in the name of Silverman. On 12 June 1996 McLean, Senior purchased the Ocean Jubilee in Milford Haven for the sum of £29,000 in cash, which was carried in a plastic bag. Hunter was present at the time of this transaction. McLean, Junior had driven him and his father down to Wales. On 16 June 1996 the Ocean Jubilee, crewed by McLean, Senior and Hunter sailed northwards from Milford Haven. On 18 June 1996 McLean, Junior hired a Rover motorcar which he drove to Ullapool on the following day. There he made contact with his father and Hunter. Thereafter the Ocean Jubilee sailed from Ullapool to Scrabster, while McLean, Junior drove the Rover motorcar to that port. On 20 June 1996 McLean, Junior picked up his father and Hunter at Scrabster and drove them back to Edinburgh. On 25 June 1996 McLean, Senior again travelled to Spain, apparently on short notice. When he returned from Spain he made arrangements about the hiring of a shed in Kirkcaldy. Meanwhile the Ocean Jubilee lay in Scrabster. Although she was ostensibly in need of repair, no work was done to her.

On 13 July 1996 the Isolda sailed from Cadiz, apparently stating Gothenburg as her destination. She proceeded on a course which took her out into the Atlantic and then round Ireland and Scotland. On 18 July 1996, while the vessel was still in the Atlantic, two sets of geographical co-ordinates were inserted into her navigation system. One was set for a point just off the Dutch coast and the other for a point in the North Sea 59^o north 1^o west.

On the following day, 19 July 1996, McLean, Senior travelled to London by train. At Kings Cross Station he had a very brief meeting with Silverman, and immediately took the next train back to Edinburgh. On his return to Waverley Station in Edinburgh, he made a telephone call from a telephone box to Alf in Spain, and was overheard to say that everything had been sorted out or to use words to that effect. He then attempted to purchase sea charts. On 22 July 1996 McLean, Senior hired a Skoda car for a period up to 29 July. On the same day he paid the initial rent for the shed at Kirkcaldy. On 23 July 1996 he and Hunter travelled back to Scrabster in the Skoda, which was driven by Corrigan. Corrigan then returned to Edinburgh. On 24 July 1996 McLean, Junior took Corrigan to a depot where Corrigan hired a van for a period up to 31 July, using money provided to him by McLean, Junior.

On 25 July 1996 McLean, Senior and Hunter sailed from Scrabster on the Ocean Jubilee and remained at sea overnight. They apparently travelled to the area of 59^o north, 1^o west. After some time in that area they returned to Wick. (The Crown referred to this journey as the practice run). On 25 July Silverman travelled from London to Edinburgh where he was met by McLean, Junior who took him to the Lovat Hotel. On the following day Corrigan uplifted an industrial weight trolley and took it in the Skoda car to the shed at Kirkcaldy. There he was apparently contacted by McLean, Junior. From there he travelled to Wick where he collected McLean, Senior and Hunter and drove them back to Edinburgh. On the same day McLean, Junior apparently phoned Silverman, then Alf, then McLean, Senior who at that time was still in Wick. In the course of this sequence of events he received a telephone call from the Isolda.

On 28 July Corrigan drove the Skoda to Inverness with McLean, Senior as his passenger. At the same time Hunter drove his own car to Inverness. Thereafter all three travelled in the Skoda car to Wick where they all took part in the unloading of a number of items from the car into the Ocean Jubilee. The items taken to Wick included charts, bottles, a hose and white spirit. Later that day the Ocean Jubilee sailed from Wick with McLean, Senior and Hunter on board, while Corrigan drove the Skoda car back to Edinburgh, and left it apparently for the use of Silverman near the Lovat Hotel. (The Crown maintained that in the early hours of 29 July the Ocean Jubilee and the Isolda came together in the North Sea and remained in the company of each other at sea for about 23 minutes, during which the transfer of the cannabis resin was alleged to have taken place). Later in the afternoon of that day both vessels were boarded. In the case of the Ocean Jubilee this was after her cargo had been set on fire by means of accelerants. Meanwhile Corrigan had hired a truck and driven it to Inverness. In a newspaper in the van was what purported to be an invoice which bore to be dated 29 July. In handwriting was the name Robert Wiseman and the address 10 Friend Street, London and a telephone number with the message "Telephone above number approx. one hour before delivery. Thank you". It bore to record the sale by Tilcot U.K. to Wiseman Industries of London of "650 insulation boards (asbestos)" for the sum of £2,700 c.o.d. The type and style of boards were identified. Corrigan was detained in Inverness. On the same day Silverman and McLean, Junior were detained in Edinburgh.

The Crown maintained that it had been intended that the Ocean Jubilee would put into Inverness with the cargo of cannabis resin and that it would be unloaded into the van which Corrigan had driven there. The cargo would then be taken to the shed at Kirkcaldy, and Silverman would drive to London with all or part of it. The invoice indicating a cargo of asbestos-related goods was designed to discourage close examination in the event of the van being stopped by any person in authority.

The grounds of appeal in the case of each of the appellants are based on the alleged misdirection of the jury by the trial judge.

We consider first the appeal of Gary Hunter. Having dealt with the Crown case against the four other co-accused who were the members of the crew of the Isolda, the trial judge said to the jury:

In presenting Hunter's appeal against conviction, Mr. Jackson explained that there was not much dispute in regard to the factual evidence which had been given in the Crown case. The real issue was as to the inference which should or should not be drawn from that factual evidence in the light of the whole evidence in the case. If the jury accepted the evidence of Hunter that he knew nothing about the taking aboard of a contraband cargo until the last voyage and that he had understood that it was tobacco, or if that evidence left a reasonable doubt as to his guilt, the jury were bound to acquit him. Mr. Jackson also emphasised that the trial had been a very long one. Twenty three days had elapsed between the day on which Hunter gave evidence and the judge's charge. In themselves the speeches of counsel and the charge occupied a week. This emphasised the need for care in the framing of the charge in order to avoid any unfairness to the accused. The first complaint was that the trial judge had said to the jury that they might feel that Hunter "clearly was concerned in all of those parts of the smuggling operation which involved the Ocean Jubilee". This indicated to the jury the judge's view in regard to a matter which was in contention. It made no difference that he said that this was entirely a matter for them, or that in the next sentence he referred to the part "allegedly played" by Hunter in the major events which he had outlined to them.

Mr. Jackson also submitted that the trial judge had compounded his misdirection by what he said in the last paragraph which we have quoted. He said to the jury that they might feel that the totality of his involvement provided "the true picture". This was the picture which had been presented by the Crown as pointing to his guilt. The words used by the trial judge suggested to the jury that he regarded the Crown's interpretation as correct.

In responding to these submissions the Advocate depute suggested that in saying to the jury that they might feel that "he was clearly concerned in all of those parts of the smuggling operation which involved the Ocean Jubilee", the trial judge was referring to McLean, Senior. We have no difficulty in rejecting this submission which does not appear to us to be a natural construction of the words used by the trial judge which were plainly directed to Hunter and accordingly we read them in that sense.

The Advocate depute went on to submit that in any event the remarks by the trial judge fell to be regarded in the light of his charge as a whole. In Withers v. H.M. Advocate 1947 J.C. 109 the Lord Justice General (Cooper) said at page 115:

It could be seen from an earlier passage in his charge that the trial judge specifically directed the jury that, in order to bring home guilt to a particular accused, the Crown required to prove inter alia that he was in some way concerned in the operation of fraudulently evading the prohibition against the importation of cannabis resin. He had added:

As was pointed out by Mr. Jackson, the critical issue in the present case related not to whether particular pieces of factual evidence were true but on whether a particular inference should or should not be taken from them.

We consider then the first of two passages which was criticised by Mr. Jackson. It is important to note that the reference to Hunter was immediately preceded by the trial judge referring to the Crown's invitation to the jury to consider who else was "knowingly involved in this illegal operation" (i.e. apart from McLean, Senior). We do not consider that the trial judge indicated to the jury any preference for the conclusion that Hunter was knowingly involved in that operation. In saying to them that they might feel that he "clearly was concerned in all of those parts of the smuggling operation which involved the Ocean Jubilee", he was referring, in our view, to the factual evidence which showed that at various stages and in various ways he was concerned in a smuggling operation. However, that was separate from the question of whether he was knowingly so involved. Thereafter the trial judge goes on to refer to various parts of Hunter's evidence in which he said that he had no previous knowledge of an illegal operation for the importation of cannabis resin.

As regards the second passage criticised by Mr. Jackson, we do not consider that the trial judge went so far as to indicate a preference for an interpretation of the evidence which pointed to the guilt of the accused. As the Advocate depute submitted, and in our view correctly, what the trial judge was concerned with in this passage was how the jury might consider it appropriate to approach the evidence which they had heard. Should it be looked at on the basis of taking the individual pieces of evidence which the Crown relied upon to demonstrate Hunter's participation or by looking at the effect of the totality of the evidence which was relied upon as demonstrating his involvement?. The trial judge coupled his remarks by reminding the jury that it was entirely a matter for them, and that if Hunter's evidence was believed or raised a reasonable doubt, they should acquit him.

In these circumstances we are not satisfied that the trial judge misdirected the jury in regard to Hunter, and his appeal against conviction is accordingly refused.

The trial judge then went on to deal with the co-accused Corrigan. In this connection it is significant to note that he said to the jury that they might feel that he was concerned in the operations of the smugglers and that the only question in his case was whether he involved himself, or allowed himself to become involved, in the knowledge of what actually was going on.

The trial judge then turned to McLean, Junior. He said to the jury:

The Advocate depute explained that at the trial the Crown position was that McLean, Junior was directly assisting his father and looked after his business when he was abroad or out of contact. He was able to keep in contact with the relevant people when his father was away. In his evidence he offered explanations for most of the evidence which the Crown had regarded as important in its case against him.

At this point it is convenient to set out what we understand the trial judge was referring to. As regards his father, McLean, Junior said that various acts must have been done by his father and not by him. As regards his mother, he said that she had booked Silverman into the Lovat Hotel. Not knowing his name she had used the name Cattel, which was the name of one of her relations. There was also a conflict in regard to the renting of the shed at Kirkcaldy. He said that his mother had asked him to provide a trolley for Corrigan to move rubbish. Corrigan said that McLean, Junior gave him cash. McLean, Junior said that he had done so, but at the request of his mother on behalf of his father. As regards his brother, who did not give evidence, McLean, Junior said that a telephone call to Silverman on 28 July 1996 from one of the mobile telephones which he had hired for his father had been made not by himself but by his brother when they were in a vehicle together. There was also a similar call to Silverman on 26 July, but he said that this was made by his brother at his mother's request to pass a message to Silverman that McLean, Senior could not meet him that day. As regards McLean, Junior's "trusted housekeeper", McLean, Junior said that he had received a message from her stating that McLean, Senior had spoken to her and asked her to give him a message to phone someone in Spain, whom he did not know, and telling him to phone a call box in Wick. He would be enabled to do this by looking at information on a note in the van which he was using. The housekeeper gave evidence as a Crown witness, in which she denied giving the telephone message or stated that in any event she could not remember giving it. As regards the officers of Customs & Excise, they were involved with McLean, Junior only when he was apprehended at a house in Edinburgh after surveillance by them. Outside the house was a van which he had been involved in hiring. At the house he was asked for keys of the van. Officers gave evidence that McLean, Junior had the keys of the van in his possession while he was outside the house, but that they were not immediately handed over. He said in evidence that he produced the keys from the kitchen.

For McLean, Junior, Mr. Murray said that the defence case had been directed to countering the inference which the Crown sought to draw from the factual evidence upon which it relied. The credibility and reliability of McLean, Junior had been in issue. No criticism was made of the general directions which the jury had received at an earlier stage in the charge. However, in dealing with McLean, Junior in the passage which we have quoted the trial judge indicated his personal views, and by his language guided the jury as to the inference which should be drawn. In a trial which was long drawn out it was necessary that the language employed by the trial judge should be looked at even more closely. The remarks which the trial judge had made in the case of Corrigan had been neutral and fair. But this did not apply when he came to deal with McLean, Junior. By his repeated reference to him "blaming" others the trial judge had polarised the situation and had given the jury the impression that McLean, Junior had sought to deflect his guilt by that means. However, there was no question of him seeking to incriminate others at the trial. It was only after the passage relating to blame that the trial judge referred to the contention of the Advocate depute that there was no one whom McLean, Junior would not lie about "to save his own skin".

Mr. Murray submitted that it was going too far for the judge to say that McLean, Junior "blamed" these other persons. He was merely explaining his actions. This criticism of the trial judge's remarks should be taken in conjunction with his reference to the evidence given by McLean, Junior as "stories". In this connection reference was made to McArthur v. H.M. Advocate 1989 S.C.C.R. 646. In that case, in which the appellant had been convicted on a charge of being concerned in the supplying of drugs, the sheriff had described the defence case as a "story" and had commented adversely on the evidence of the appellant's wife that she had saved money saying: "I don't suppose you think it likely". It was held that it was unfortunate that the sheriff used the word "story" to describe the defence evidence but that that in itself would probably not constitute a miscarriage of justice, but that his comments on the evidence as to the saving made by the appellant's wife were highly objectionable and involved him clearly informing the jury of his views on the evidence, and so constituted a misdirection. That misdirection had not been cured by his repeated references to matters of fact being for the jury to decide. In these circumstances it was held that there had been a miscarriage of justice and the conviction was quashed.

It is plain that for a trial judge to refer to the evidence given by an accused as a "story" is unwise, since when considered in the context of his whole remarks it may assist in conveying an impression of scepticism on his part. However, as the decision in McArthur shows, the mere fact that this unfortunate word is used, does not necessarily mean that there has been a misdirection. In Montes v. H.M. Advocate 1990 S.C.C.R. 645 the trial judge referred to the defence "story" and indicated to the jury that they should ask themselves whether it rang true. It was held that, while the passage read in isolation might permit of an inference that there was an onus on the accused to exculpate himself, it was clear, when the charge was read as a whole, that there had been no misdirection. It does not appear that in that case any particular significance was attached to the word "story".

In the present case the word "blame" was not well chosen and the way in which it was used was unfortunate as a way of referring, not merely to one explanation, but to a series of explanations which McLean, Junior had given in evidence for a number of pieces of evidence by means of which the Crown sought to incriminate him. However, this was said in close conjunction to his reference to the contention for the Crown. We do not consider that he impressed his own view of the evidence, and so trespassed on the province of the jury. The trial judge's reference to the exculpatory evidence of McLean, Junior as "such stories as he told" does not appear to carry with it the kind of implication which it might have carried in a different context but rather appears to be a passing reference in parenthesis. In these circumstances we are not satisfied that the trial judge misdirected the jury in regard to McLean, Junior, and his appeal against conviction accordingly is refused.

We turn next to the appeal of Silverman who was the next of the accused to be referred to in the trial judge's charge. He said to the jury:

Silverman in his evidence had explained that he had arranged to buy a second-hand car from McLean, Senior. When they met at Kings Cross Station on 19 July 1996 he handed payment for the car to Senior who had travelled to London in order to collect it. He himself had travelled to Edinburgh on 25 July in order to collect the car.

For Silverman Mr. Totten submitted that anyone who heard the passage from the judge's charge which we have quoted would conclude that he did not believe Silverman's evidence. If he had merely meant that the jury should assess the truth or otherwise of his evidence, why did he refer to it as "this tale"? The trial judge's reference to his demeanour in the witness box hinted at something pejorative. In his report the trial judge had observed that in the witness box Silverman's demeanour was most unusual. He added:

This statement was not fully understood. He was a Cockney, but he had not sworn in his evidence. The Advocate depute had not described him as the victim of a catalogue of "fantastic" coincidences. It was accepted that in his general introductory remarks the trial judge had informed the jury that it was for them to decide what evidence was accepted and that it was exclusively their view of the evidence that counted. However, his misdirection was not saved by these remarks, any more than by his later observations in which he said:

In reply the Advocate depute accepted that the trial judge's use of the word "tale" was unhappy. However, he submitted that only on a strained view did it convey scepticism. The charge should be looked at as a whole and not merely by referring to particular passages. He emphasised that in McArthur v. H.M. Advocate it was only the combination of the use of the word "story" with a deliberate indication of disbelief which had led to the conviction being quashed. As regards Silverman's demeanour in the witness box the Advocate depute accepted that he had not sworn in the course of his evidence. He had used Cockney slang when giving evidence but he had not done so when he was being interviewed by Customs & Excise officials after his apprehension. This had led to him asking Silverman in cross-examination if he had been to acting school. He probably had not used the word "fantastic". However, it was over-exacting to require that the trial judge should have to use the same language employed by him in reminding the jury of the point which he had made to them.

In Simpson v. H.M. Advocate 1952 J.C. 1, the Lord Justice General (Cooper) stated at page 3, in a passage which has been referred to in subsequent decisions:

In the present case the trial judge not only referred to Silverman's defence as "this tale" but also plainly set that explanation against the evidence of various activities on the part of McLean, Senior, most of which were not in dispute. There was a clear implication that Silverman's explanation was inherently improbable. This presentation of the matter to the jury appeared to reflect the view of the trial judge himself. It was only towards the end of the passage that he referred to the Advocate depute's approach, and then in language which, if anything, was more highly coloured. In these circumstances we have come to the conclusion that, so far as Silverman is concerned, the trial judge exceeded the proper scope of his right to refer to the evidence and trespassed upon the province of the jury by impressing a view upon them. In these circumstances we have come to the conclusion that he misdirected the jury.

The Advocate depute sought to satisfy us that in any event there had been no miscarriage of justice. The evidence on which the Crown was able to rely as incriminating Silverman may be summarised as follows. Firstly, there was the evidence as to the meeting between him and McLean, Senior in Kings Cross Station on 19 July 1996, taken together with the fact that McLean, Senior returned immediately to Edinburgh, where he was heard to make the remark to which we have already referred and sought to purchase maritime charts. It was pointed out by the Advocate depute that this followed the visits by McLean, Senior to Spain, and his purchase of the Ocean Jubilee in Milton Haven. At the trial the Crown had invited the jury to infer that at Kings Cross Station Silverman passed to McLean, Senior information about the co-ordinates for the meeting point of the two vessels which McLean, Senior required to know. Their meeting was on the day after the co-ordinates had been entered into the navigational system of the Isolda. Secondly, there was the evidence of Silverman travelling to Edinburgh where he was met by McLean, Junior and taken to the hotel where accommodation had been booked for him under the name of Cattel. There was evidence that on 26 July Silverman left the hotel and waited in a nearby street. Shortly after a telephone call from McLean, Junior to Silverman by means of their mobile phones, McLean, Junior drove towards Silverman who was under surveillance. The person who was watching Silverman turned away as the van driven by McLean, Junior approached him. When he looked back, Silverman had gone. Shortly thereafter there were a number of important telephone calls made on the mobile telephone of McLean, Junior to Alf (in Spain) and to Wick, (to which the Ocean Jubilee had returned). At the trial the Crown submitted that McLean, Junior had collected Silverman and that, by inference, the telephone calls to Alf and to Wick had been made by McLean, Junior in Silverman's presence. As we have already noted, on the same day Corrigan was apparently contacted by McLean, Junior and travelled to Wick where he collected McLean, Senior and Hunter and drove them back to Edinburgh. On the same day McLean, Junior also received a telephone call from the Isolda which at that time was heading up the west coast of Scotland. Thirdly, on 28 July there was a telephone call to Silverman from one of the mobile phones which McLean, Junior had hired. Fourthly, when Silverman was detained in Edinburgh on the afternoon of 29 July he was in possession of the keys of the Skoda car which Corrigan had left near the Lovat Hotel. Fifthly, in the possession of the skipper of the Isolda when he was apprehended was a note which contained a list of telephone numbers. These included the telephone number of Silverman's mobile phone. The note referred to Alf along with "Maedje" (which is Dutch for helper) and "driver". The skipper also had the telephone numbers of the mobile phones of McLean, Senior and McLean, Junior. At the trial the Crown said that Silverman was Alf's helper in England and that the word "driver" referred to what he was intended to do in driving part of the cannabis resin to England. Silverman had no explanation for the fact that the telephone number of his mobile phone was on the note. In these circumstances the Crown maintained that Silverman was linked to not only McLean, Senior and McLean, Junior but also to Alf and the Isolda. It should be added that in his report the trial judge stated that fibres found on the clothes worn by Silverman were compared scientifically with those taken from the wrappings of the drugs on that vessel. However, it is clear that this passage in the report involved a confusion. No fibres were found on the clothing of Silverman, and there was no evidence that he had ever been on board the Ocean Jubilee or had been in any way in contact with the cannabis resin.

The Advocate depute maintained that there had been a strong body of evidence against Silverman which was enough to withstand a misdirection on the part of the trial judge. He also pointed out that Silverman's position was weakened by the fact that when he was interviewed he did not provide the explanation about the purchase of the car. He was interviewed as Mr. Cattel, and chose not to say whether that was his name. He said that he was a tourist who had been visiting a number of places in Edinburgh. He claimed that he did not know the McLeans and that it had been he who had hired the Skoda motor car.

We are not persuaded by the argument presented by the Advocate depute. In the present case the misdirection of the trial judge related not merely to a particular adminicle of evidence but to the entire defence of Silverman. There were a number of important pieces of evidence which tended to incriminate him, including the fact that his mobile phone number was on the piece of paper held by the skipper of the Isolda. However, apart from that last piece of evidence, the Crown required to rely on evidence as to his connection with the McLeans and the timing of various events relating to the Ocean Jubilee. The Crown's case depended on persuading the jury that Silverman's connection with the McLeans and the timing of those events pointed to his guilty participation in the attempted fraudulent evasion and not to the explanation which he had given. In the event he was convicted by a majority verdict by the jury. We are not persuaded that the Crown's case was so strong relative to Silverman's defence that the misdirection of the jury did not cause a miscarriage of justice.

In these circumstances we are satisfied that Silverman's appeal against conviction is well founded. It will be allowed and his conviction will be quashed.