Lord Justice Clerk
Lord Nimmo Smith
HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE LORD JUSTICE CLERK
NOTE OF APPEAL AGAINST CONVICTION
HER MAJESTY'S ADVOCATE
Appellant: Shead; Raymond F Bainbridge
Respondent: Brodie, Q.C., A.D.; Crown Agent
21 April 1999
The appellant was found guilty of a charge of contravening section 4(3)(b) of the Misuse of Drugs Act 1971 in respect that he was concerned in the supply of ecstasy to another or others on 29 March 1996. He was sentenced to five years' imprisonment.
The charge which he had originally faced related to a longer period but during the course of the trial the scope of the libel was restricted to the date in respect of which he was eventually found guilty. He appeared on trial along with a co-accused, Garry Niven. The co-accused submitted a plea of guilty at the end of the Crown case. It was a plea which he had offered at an earlier stage but had been refused. At the end of the Crown case that plea was accepted.
Leave to appeal against conviction has been granted solely in regard to whether the trial judge's directions in regard to concert were adequate. How that arises we will explain in due course.
So far as the facts are concerned we read from the trial judge's report that at about 4.00pm on the date in question the police attended at a house in Ayr which was occupied by a Kirsty Hart. They were in possession of a search warrant under the 1971 Act. While the police were there a number of persons called. At about 7.00pm the appellant and his co-accused arrived in each other's company. Each was then searched by the police outwith the presence of the other. The search of Mr Niven revealed he was carrying a plastic bag containing five separate plastic bags which, in turn, contained in total 225 tablets of ecstasy, the drug to which the charge faced by the appellant related. When the drugs were found on him Niven said to the police that he was just delivering them. No money of any significance was found on him. The search of the appellant revealed, amongst other things, that he had within the inside pocket of his jacket a total of £1,775 in notes, principally of £10 and £20 denominations. When the notes were found the appellant said to the police "That's my savings". In addition, a sum of £200 in notes was found in the rear pocket of the appellant's jeans, and a sum of £68.85 was found in the front pocket of his jeans. A search of the appellant's person also produced two Giro cheques made out in respect of payments of Income Support to him. Neither of the cheques, dated 14 March and 26 March 1996, had been cashed. The appellant further had in his possession a list of names and numbers. In a subsequent taped interview with the police the appellant stated inter alia that the money was from his work. Evidence was given by a member of the Strathclyde Police Drug Squad who said that the retail value of a tablet of ecstasy at the relevant time was between £10 and £15. The total retail value of ecstasy found on Niven's person was thus between £22,500 and £33,750. The quantity of ecstasy involved was a "dealer" quantity. The police witness also described the common practice in the illicit drug trade of employing a mule to carry the drugs, the mule being someone who would take the risk of being found in possession of the drugs while the dealer and others involved in the supplying of the drugs would thereby be distanced from the possession of the drugs. The witness also gave evidence to the effect that it was not uncommon to find that dealers would have quantities of money located in several pockets.
Before coming to the main points which were argued on behalf of the appellant by Mr Shead we note that he made certain submissions in regard to the significance of the money which had been found on the appellant. He submitted that having regard to the scope of the libel being restricted to a single date it was hard to see what significance the money would have had. He made a similar submission in regard to the list which had been found. The difficulty with that submission is that there is no complaint made that the trial judge attributed any undue significance to that aspect of the evidence and accordingly we give that matter no further consideration.
The first point which Mr Shead made was that the directions given by the trial judge as to concert were not adequate. He referred to a passage in the charge at page 10B-11B. In that passage the trial judge said:
"Now ladies and gentlemen there are two accused on this indictment and where there are two accused on indictment, or on a charge I should say, the charge against each accused has to be looked at separately. Of course, as the Advocate depute indicated to you, two people can be acting together in concert or jointly, and the example was given to you of the housebreaker. And where two people are acting together jointly as part of a common plan then each will be responsible for everything that is within the scope of that plan. But that said, the involvement of each must be looked at separately to make sure the person is in fact part of the plan.
"Now, in the present case, since the prosecutor has accepted Mr Niven's plea of guilty, you, of course are only concerned with Harrison. But you have, in a sense, to consider the evidence against Mr Harrison separately and you mustn't reach the conclusion that simply because Mr Niven pled guilty that Mr Harrison must therefore ... be guilty. You have to examine carefully the evidence and decide what, if anything, has been established against Mr Harrison".
That passage in the trial judge's charge has to be read, as Mr Shead accepted, along with a later passage in which, having given the jury certain directions as to what was meant by the expression "being concerned in the supplying of drugs" he went on to say this at pages 17A-18B:
"You can perhaps picture to yourselves that one may have two people distributing drugs, one of them hands out the drugs and the other collects the money. But both are acting together and both will be concerned in the supplying of drugs. Ladies and gentlemen, to be guilty of being concerned in the supply it is, of course, necessary that the person knows he is contributing to or taking part in the supply or distribution of the controlled drug. And if I can give you an example, perhaps an extreme example. If a drug courier were to flag down a taxi in order to take the drugs to a delivery address, the taxi driver would, in a sense, be concerned as he is providing the transport but since he has no knowledge of what is going on, he obviously would not be guilty of the offence. Usually the very nature of the activity will demonstrate knowledge, even if only by inference. So someone who is mixing up drugs would clearly know what he is about. So, ladies and gentlemen, in summary the three elements really that come into the offence of being concerned in the supply of a controlled drug are, firstly, that the activity must be related to a controlled drug, the activity of the accused must be in some way directed towards or involved in the supply and it must be an activity in which he is knowingly engaged in the sense of knowing that it is involved with controlled drugs".
It is plainly the case, as Mr Shead accepted, that that last direction to the jury was unduly favourable to the accused, having regard to the decision in Salmon v HMA 1998 S.C.C.R. 740, in respect that it was not necessary for the Crown to prove that a particular accused knew that drugs were the subject of the matter with which he was concerned.
In presenting his submission Mr Shead made it clear that there was evidence to entitle the jury to convict the accused irrespective of whether that was based on concert or not. His submission was that in the passage at page 10 the trial judge's directions about concert were not adequate. It was his understanding that the Crown's approach to conviction was based exclusively on concert. The point to which Mr Shead's objections to the charge were directed was that the trial judge had failed to make it clear to the jury that concert was critical, and that if they were not satisfied that concert was established they would be bound to acquit.
Mr Shead went on to submit that if, on the other hand, concert had no application the appellant had been convicted on a wrong basis. He referred us to passages in the opinion of the Lord Justice General in Salmon in which he indicated that in a number of previous cases the concept of concert had been involved where that did not appear to have been necessary. Mr Shead went further and submitted that it was wrong to invite a jury to convict on the ground of concert since, in his submission, that concept had no application whatever. But, on the basis that the jury had been directed on what he said was an inappropriate basis, if not a wrong basis, a miscarriage of justice had occurred. One could not know what the jury would have done if they had merely considered the guilt of the appellant on the basis of his responsibility solely for his own actions.
In reply the Advocate depute submitted that all that the trial judge had done in the passage at page 10 was to draw the jury's attention to the way in which the Crown had invited the jury to approach the matter of guilt by considering whether the two men had been acting together. It was, in the present type of case, a question of whether they were satisfied that the two men, the appellant and Niven, were acting together and thus fulfilling complementary roles in the way in which each of them was involved in the supplying of the controlled drugs.
We are not satisfied there is any substance in this appeal. We consider that it is very likely that the Advocate depute is right in his interpretation of what the trial judge said on page 10, particularly when this is taken in conjunction with the later passage on page 17, which we have already quoted, in which he gave directions without any reference to concert, as to the meaning of "being concerned in the supplying of controlled drugs", directions which were entirely correct, except in one respect which was in fact favourable to the appellant.
For these reasons we are quite unable to reach the view that there was anything inadequate in any sense in the directions which he gave in so far as those directions could be treated as directions to concert.
However, quite apart from that, it is plain in our view that no miscarriage of justice has occurred in this case and that it is in vain for Mr Shead to submit that the appellant was, or indeed may have been, convicted on a wrong basis. Mr Shead quite frankly accepted that it was difficult to conceive any practical difference in the present type of case between looking at the evidence from the point of view of concert and looking at it without regard to that concept. In this situation, having regard to the trial judge's charge as a whole - and it should, of course, be read as a whole, we are not satisfied there was any miscarriage of justice. The jury were correctly directed in regard to the matter of being concerned in the supplying of controlled drugs and in indeed in terms which were even more favourable to the appellant than they required to be.
In these circumstances this appeal is refused.