APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal No: C424/98
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
APPEAL AGAINST CONVICTION
PETER JOHN CAIRNS
HER MAJESTY'S ADVOCATE
Appellant: Sheldon; McCourts, Edinburgh
Respondent: Doherty, Q.C., A.D.; Crown Agent
18 May 1999
The appellant is Peter John Cairns who was convicted at the High Court at Inverness in June 1998 of a charge of being concerned in supplying amphetamine and of a charge of being concerned in supplying cocaine. He has appealed against his conviction. In order to understand the grounds of appeal it is necessary to set out some of the circumstances of the case.
There was evidence that the appellant lived at an address in Inverness. On 27 March 1997 police officers went to the common drying-green and bin area behind his house, which was one of many in a modern tenement block. There were several gas meter boxes on the outside wall, but they were not longer used for gas meters. The police went to one of those boxes and used a key to open the box, although it appears that the lock was defective and the box could be opened by using a piece of metal. Inside the box the police officers found two bags wrapped together. They removed the bags. One bag contained amphetamine with a street value of about £190,000, while the other contained cocaine worth nearly £9,000. The bag with the cocaine had no identifiable fingerprints on it. The amphetamine was inside a metal foil envelope which was in turn inside a Kwik-Save plastic bag. When these items were examined, fingerprints were found both on the metal foil envelope and the Kwik-Save bag. From the next day and for a period of about nine days the police kept a watch on the premises and the appellant was seen to come out and do various things to and with the rubbish bins near the gas meter box in which the drugs had been found.
Some months later, on 6 November 1997, Detective Constable Findlay, an officer of the Scottish Crime Squad, saw the appellant in Preston. At about 4.45 p.m. he detained the appellant and advised him that he was being detained under Section 14 of the Criminal Procedure (Scotland) Act 1995. He was taken to Chorley Police Station where he arrived at about 5.30 p.m. He was kept there and was eventually arrested about six hours later, at about 11.30 p.m. The following day the appellant was taken back to Scotland where he was fingerprinted in accordance with the procedures envisaged in Section 18 of the 1995 Act. There was evidence that his fingerprints taken on this occasion matched the prints found on the foil envelope and Kwik-Save plastic bag.
When the appellant was detained by the police in Preston, they also detained a certain Douglas Fleming who was with him. He was subsequently charged with drugs offences which concerned unrelated events on 22 October 1997, but he was acquitted. The appellant incriminated Fleming and there was evidence before the jury that Fleming, who had been living in the appellant's house in Inverness at about the time when the police discovered the drugs, had previously been convicted of importing substantial quantities of cannabis from North Africa.
When the Advocate Depute began to lead the evidence relating to the appellant's detention, counsel for the appellant objected to the line of evidence. It is common ground that the provisions which governed the detention of the appellant by Detective Constable Findlay are to be found in Sections 137 and 138 of the Criminal Justice and Public Order Act 1994 which prescribe inter alia that the person detained must either be taken back to Scotland or to the nearest convenient designated police station in England or Wales. At the trial defence counsel argued that it had not been shown that Chorley Police Station was a designated police station, but that point was not advanced by Mr. Sheldon in the appeal.
Mr. Sheldon concentrated on a point which arose out of the fact that, by reason of Section 138(6) of the 1994 Act, detention under Section 137 is to be terminated not more than four hours after the detained person arrives at the police station in question. The police officers who detained the appellant were not aware of that special provision and proceeded on the basis that the detention could last for up to six hours, as laid down in Section 14(2) of the 1995 Act. Both in the court below and at the hearing of the appeal the Advocate Depute accepted that, since the detention of the appellant had begun at approximately 5.30 p.m., it should have been terminated not later than 9.30 p.m. when the police should either have released him or arrested him. In fact he was detained for a further two hours before being arrested at about 11.30 p.m. The trial judge held that this two-hour period of detention between 9.30 p.m. and 11.30 p.m. was unlawful and before us the Advocate Depute accepted that finding. Mr. Sheldon submitted that the unlawful detention of the appellant prior to his purported arrest rendered that arrest unlawful, with the result that all the subsequent steps were unlawful too. In particular it had been unlawful for the police to take the appellant to Scotland and, since his arrest had been unlawful, there was no basis upon which the police had been entitled to fingerprint him under Section 18 of the 1995 Act because that section presupposed that the person in question had been lawfully arrested. The trial judge had therefore been wrong to admit the evidence of the fingerprints. The Advocate Depute accepted that, if the trial judge had been wrong to admit the fingerprint evidence, the appeal would require to be allowed.
In considering Mr. Sheldon's argument, we start by noting that he specifically accepted that all the evidence and information which justified the arrest of the appellant was available to the police by 9.30 p.m. when his lawful detention ended. The police officers could therefore have lawfully arrested the appellant at that time. Instead, they unlawfully detained him for a further two hours before arresting him. Mr. Sheldon contended that, because this period of detention was unlawful, the subsequent arrest of the appellant was ipso facto unlawful.
We reject that argument. In the circumstances of this case it is both proper and necessary to distinguish the legality of the appellant's detention from the legality of his arrest. The fact that his detention for the last two hours was unlawful does not in itself mean that his subsequent arrest was tainted so as to become unlawful. On the contrary, at 9.30 p.m. and at 11.30 p.m. the police officers had the same proper evidential basis for arresting the appellant; in reality indeed the root cause of his unlawful detention was their failure to arrest him at 9.30 p.m. rather than later. An arrest which would have been lawful at 9.30 p.m. was not unlawful at 11.30 p.m. just because he had been unlawfully detained in the meantime. Nothing occurred during the two-hour period of unlawful detention which prejudiced the appellant or had any other continuing effect which might be regarded as affecting the legality of his arrest. In that situation we are satisfied that the appellant's arrest was lawful. Mr. Sheldon did not dispute that, if the appellant's arrest was lawful, the police officers were entitled to fingerprint him the following day in accordance with Section 18 of the 1995 Act. The trial judge was accordingly correct to repel the objection to the admissibility of the evidence relating to the appellant's fingerprints.
For that reason we reject the first two grounds of appeal.
The third ground of appeal arises out of a passage in the trial judge's charge to the jury. The Crown led evidence of the part of the interview of the appellant carried out by the police officers in Chorley Police Office in the first four hours of his detention. In the transcript Detective Constable Findlay appears as "DCF" and the appellant as "S" (suspect). At one point the appellant is asked about fingerprints and the exchange, as recorded, was as follows:
"DCF. Did you have any ... ever have any cause to go into that meter cabinet?
DCF. Any fingerprints found on that package will not be likely to be yours?
DCF. Not at all?
DCF. You never handled a package like that?
S. Not that I'm aware of.
DCF. You know, inadvertently, or otherwise.
The Advocate Depute informed us that the reference to "that package" was a reference to the foil package in which the amphetamine was found. Also he accepted that this passage was the only point in the interview when the appellant was asked about fingerprints.
In his charge to the jury the trial judge pointed out on more than one occasion that the evidence relating to the appellant's fingerprints was important for the Crown's case. He chose to go into that evidence in some detail and, referring to the Kwik-Save bag and the foil, he observed that
"The important evidence so far as the Crown is concerned is that the accused's fingerprints are on both of these, one ultimately containing the amphetamine, the other one containing the evidence of cocaine."
Although no reference is made to this passage in the grounds of appeal, we note that, as the trial judge records in his report, the position actually was that there were no identifiable fingerprints on the bag containing the cocaine.
The trial judge described this evidence of fingerprints as "a strong, very important piece of evidence" and added that it was for the jury to decide what they made of it. He pointed out that the jury should reflect that in their own homes they would have bags and foil which they had handled and which would therefore bear their fingerprints. So, there was a perfectly innocent way in which the appellant could get his fingerprints on to the plastic bag and the foil. The judge went on to say:
"But then you have got to say - but wait a moment, where does that take us? Supposing the accused is innocent, his fingerprint is on the bag because he handles the bag. Someone else must have taken the bag and the foil, manufactured the foil into a special bag, as the accused said he had never seen a bag like this made from foil. Someone else has done that and then put the drugs in. So who could it be? Now it may be pure speculation to say who it could be, but one would have thought the first thought that would strike the accused when he was told his fingerprints were on the packets with drugs would be "I know perfectly well who that must be" because he shares the house with Fleming, Fleming [has been] convicted of drugs, Fleming comes and goes etc. etc. And you have to decide whether his response to being questioned about this was the response of a man who must have been struck at once by the fact that it was Fleming. But, ladies and gentlemen, that's a way of approaching it and you may think that it is a totally bizarre way to approach it. I'm just suggesting it as a possible way. If you don't like it, reject it. It is for you to say."
The point taken on behalf of the appellant is that, in this passage, the trial judge builds his direction on the basis that at the relevant point in the interview Detective Constable Findlay told the appellant that his fingerprints were on the foil package containing the amphetamine. In fact, however, as the transcript shows and as the trial judge acknowledges in his report to this court, Detective Constable Findlay did not say that. All that he did was to ask the appellant "Any fingerprints found on that package will not be likely to be yours?" - a question inviting the answer "No" which the appellant gave. Indeed the actual question was the only one which the police officer could properly ask, since the police had not at that stage taken the appellant's fingerprints for purposes of comparison. It is therefore clear that the trial judge's direction was based on a faulty recollection of the evidence on this point.
Mr. Sheldon accepted, of course, that not every error by a judge in presenting the evidence to the jury will constitute a misdirection which gives rise to a miscarriage of justice. Indeed, it is trite that juries are directed that they must base their deliberations on their own recollection of the evidence where it differs from the recollection of counsel or the judge. In the present case, the judge had already told the jury in relation to the evidence
"But certainly you ignore what we seem to think, if you imagine you've got some indication as to what we think."
Mr. Sheldon submitted, however, that general directions of that kind were not a sufficient basis for saying that this particular misdirection had not given rise to a miscarriage of justice.
In advancing his argument, Mr. Sheldon suggested that by saying "Supposing the accused is innocent" and "one would have thought the first thought that would strike the accused", the judge had in effect indicated to the jury his own view that the appellant was not innocent. That argument depends on isolating those phrases and this particular passage from the rest of the judge's charge. When they are considered in the context of the charge as a whole, where the various arguments for the defence are recounted in considerable detail, it appears to us that the jury would have appreciated that in this particular passage the judge was simply suggesting to the jury how they might test the appellant's reaction and decide whether it was consistent with the reaction of someone who was innocent. We therefore reject that criticism.
Nor do we consider that the direction would have been objectionable, if it had been soundly based on the evidence before the jury. It would have been a direction which the judge was not, of course, obliged to give, but which might have been helpful to the jury when considering how to assess the significance of the fingerprint evidence.
The real criticism of the direction - and it is, of course, a significant criticism - is that it was not in fact soundly based on the evidence. Moreover, it was a misdirection in relation to the fingerprint evidence which, as the judge had said to the jury, was "very much at the heart of this case". Many misdirections, even on important evidence, will turn out on examination to be insignificant in the context of the trial as a whole. Here, however, the trial judge not only gave an inaccurate account of the evidence on an important matter but used that account to suggest to the jury how they might test whether the appellant's reaction was that of an innocent man. A misdirection of that kind goes considerably beyond the kind of mistaken account of evidence which a jury can be expected to disregard by following the general direction to use their own recollection of the evidence.
The judge in his report and the Advocate Depute in his argument to this court drew attention to the closing remarks of the judge in the passage which we have quoted. The Advocate Depute submitted that in those closing remarks the jury were in effect being directed specifically that they could disregard what the judge had said if it did not correspond to their recollection of the evidence. In our view, however, that submission depends on giving those remarks a meaning which they cannot have been intended to bear and which the jury would not have attached to them. The judge was not directing the jury that, if their recollection of the evidence was different, they could disregard what he had just told them; rather, he was directing them that, if they thought that the approach to the evidence which he had suggested was bizarre, they could reject it. In other words, he was telling them that they could reject the suggested approach to the evidence, rather than his account of that evidence.
Looking at this particular direction in the context of the whole charge, we have reached the view that it was a misdirection on an important part of the evidence which, if followed by the jury, would not only have misled the jury as to what the evidence had been but would, in addition, have led them to use a false touchstone by which to judge whether the appellant had reacted like an innocent man. For these reasons we consider that the misdirection gave rise to a miscarriage of justice.
The Advocate Depute submitted that, if the court reached that view, we should grant the Crown authority to bring a new prosecution. Mr. Sheldon advanced no argument to the contrary. We shall accordingly set aside the verdict of the trial court, quash the conviction and grant authority to the Crown to bring a new prosecution in terms of Section 119 of the 1995 Act.