APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Lord Nimmo Smith
Appeal No: C566/98
OPINION OF THE COURT
delivered by THE LORD JUSTICE CLERK
APPEAL AGAINST CONVICTION
HER MAJESTY'S ADVOCATE
Appellant: Scott; Wheatley & Co.
Respondent: Di Rollo, A.D.; Crown Agent
13 May 1999
On 26 August 1998 the appellant was found guilty of a charge of contravening section 4(3)(b) of the Misuse of Drugs Act 1971 in respect that on 9 January 1997 in a house occupied by him at an address in Glasgow he was concerned in the supplying of diamorphine to another.
Evidence was given at the trial that the appellant had in his front shirt pocket a plastic bag which contained eight plastic film packages. Within them were a total of 39 separate packages or deals containing heroin. Each of those packages was wrapped in lined paper and in addition was wrapped in plastic film. There was evidence that such wrapping was commonly found in supplies to users and the amount of what was found was not consistent merely with personal use. The appellant was asked whether the 39 packages were score bags, and he was said to have replied: "They're tenner bags". On the floor of the livingroom of the house where he was apprehended was a small roll of clingfilm. There was evidence that this roll had been cut to size from a larger roll for convenience in enclosing paper deals of drugs. Also in the livingroom were two pieces of mirror glass suitable for the cutting or sub-division of powdered drugs, and a quantity of lined paper which was similar in quality and appearance to the paper in which the 39 deals had been made up. The appellant was asked if the paper was used to wrap the deals, and he replied in the affirmative. There was also evidence that he had the sum of £210 in his possession. When he was strip-searched, a condom containing a further bulk quantity of 31/2 gms. of heroin was found concealed inside his underpants.
Miss Scott, on behalf of the appellant, submitted that, while this evidence was eloquent of the possession of heroin with intent to supply it contrary to section 5(3), it did not go so far as to support a charge of contravention of section 4(3)(b). As regards the money which was found in his possession, it appeared from the sheriff's report that the Crown had sought to maintain that it represented the proceeds of past illicit activity. Since the charge was restricted to a single date, this was not open to the Crown. Given that restriction, the evidence about the money was equally consistent with simply indicating the nature of the appellant's possession of the drugs. There was no other evidence which pointed to having an on-going role in the supplying of the drugs.
It followed, she submitted, that the evidence could not support a charge under section 4(3)(b). This was because sections 5(3) and 4(3)(b) were, on a proper construction, mutually exclusive. Otherwise section 5(3) would be redundant. While section 4(3)(b) had a wide application, it was not intended to be used as a catch-all, but to fill the gaps covered by other offences, and to cover activities which took place over a period. The same argument could be presented, but with less force, where the Crown sought a conviction under section 4(3)(b) solely on the strength of evidence that the accused supplied drugs to a particular person or persons. Miss Scott accepted that there was no authority in support of her submission as to the scope of section 4(3)(b). The point had not been taken in cases such as Kerr v. H.M. Advocate 1986 S.C.C.R. 81. However, it gained some support from the observations of the court in Dickson v. H.M. Advocate 1994 S.C.C.R. 478 at page 483 although that case was concerned with the differentiation of evidence appropriate to conviction on two charges, one of which was a charge of possession on a single date with intent to supply, and the other was a charge of being concerned over a period in the supplying of drugs. Miss Scott also referred to comments which the Lord Justice General had made in Salmon v. H.M. Advocate 1998 S.C.C.R. 740 at pages 760 and 762 in regard to the appropriateness of the charges brought by the Crown in Tudhope v. McKee 1987 S.C.C.R. 663 and Rodden v. H.M. Advocate 1994 S.C.C.R. 841.
The submission which Miss Scott made in regard to the scope for the use of section 4(3)(b) seeks to raise a matter of some substance. However, it is not a live issue on the evidence which was before the jury in the present case. As the Advocate depute pointed out, the evidence was such that it was open to the jury to conclude that the present case was not simply one of possession with intent. The appellant was found in possession of two separate amounts of heroin which were differently packaged. There was evidence that the roll of clingfilm which was found on the floor of the livingroom had been cut to that size from a larger roll for convenience in enclosing paper deals of drugs. Also found in the livingroom was a quantity of lined paper which was similar in quality and appearance to the paper in which the 39 deals had been made up. There was also the evidence of the appellant's possession of a sum of money. It was not possible to determine when it came into his possession. We might also add that Miss Scott informed us that, although it was not mentioned by the sheriff in his charge to the jury, there was evidence that silver foil had been found in the house. In these circumstances the Advocate depute submitted that while the Crown case against the appellant was dependent on the jury being satisfied that he was concerned in the supplying of heroin to another, the evidence consisted of significantly more than the mere fact of possession with intent to supply. He observed that it was not uncommon for a charge of contravening section 4(3)(b) to be restricted to a single date. In the present case the jury were entitled to conclude that on 9 January 1997 the appellant was currently concerned in the supplying of heroin.
We are satisfied that the argument presented by the Advocate depute in regard to the evidence before the jury in the circumstances of this case is well-founded. Thus, even if Miss Scott were correct in her submission as to the distinction between the two provisions, the evidence in the present case extended significantly beyond possession with intent to supply, and accordingly the jury were on any view entitled to convict the appellant of a contravention of section 4(3)(b) on the date in question. The appeal against conviction is therefore refused.