Scottish High Court of Justiciary Decisons

RICHARD JOHN AGAR v. HER MAJESTY'S ADVOCATE [2000] ScotHC 36 (17th March, 2000)

[1] The appellant is Richard John Agar who was convicted at the High Court at Edinburgh of being concerned in the supply of amphetamine, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. He was also convicted of a charge that at the Forth Road Bridge and on the A90 road between South Queensferry and the Barnton Roundabout, Edinburgh, he did drive a motor vehicle dangerously and in particular that at the Forth Road Bridge he caused it to strike a barrier whereby the barrier and car were damaged; and that on the A90 road he drove the vehicle at excessive speeds of up to 130 m.p.h., contrary to section 2 of the Road Traffic Act 1988. He was sentenced to 12 years imprisonment on the drugs charge and to a concurrent period of 1 year in respect of the Road Traffic charge. He has appealed against both conviction and sentence.

[2] In her report the trial judge gives an account of the facts which we can in substance adopt. The evidence disclosed, we are told, that a merchant seaman, one Michael Northfield, received what was said to be a consignment comprising 25 packets of amphetamine from a Dutchman known only as Hans while his ship was in port at Amsterdam. Mr Northfield thereafter contacted police officers in England and informed them that he was in possession of the drugs and that his ship was sailing for Montrose. On its arrival there a meeting took place between Mr Northfield and police and customs officers and thereafter a surveillance operation was mounted in relation to the pickup of the consignment which had been arranged in accordance with instructions received from Hans. The 25 packages had in the meantime been placed in two holdalls supplied by Customs & Excise, Label Productions 11 and 12. On the evening of 16 March 1997 the appellant was seen arriving at the Black Horse Inn public house in Montrose where Mr Northfield had told Hans he would be waiting with the drugs. The appellant provided the agreed password and uplifted the two holdalls. He was then seen to get into a white Sierra car and drive off at speed southwards from Montrose. His car was followed until it reached the Forth Road Bridge and police officers observed that during the journey the Sierra appeared to be travelling in convoy with a Ford Escort driven by a co-accused Eric Peacock who had been seen speaking to the appellant in the vicinity of the Black Horse Inn. The Escort appeared to be acting as a minder vehicle for the Sierra driven by the appellant.

[3] At the toll area of the Forth Road Bridge customs officers approached the Sierra, which was stationary, and requested that the appellant get out. On seeing them he pulled out from behind another stationary vehicle and accelerated towards a closed barrier which he drove through, damaging both the barrier and the car. Thereafter, he drove towards Edinburgh at speeds estimated as being up to 130mph. Several police vehicles which attempted to catch up with him were unable to do so. The appellant eventually drove to the car park of the Bank of Scotland close to the Barnton Roundabout where he abandoned the two holdalls. A few minutes later he abandoned the vehicle in a side street and was arrested very shortly afterwards on foot nearby.

[4] The appellant, who had deliberately decided to represent himself at the hearing of his appeal, advanced three arguments. It should be recorded that he did so effectively, demonstrating knowledge of all the relevant passages in the transcripts. We deal first of all with his contention that the trial judge had misdirected the jury.

[5] Leaving aside points with which we deal later, the narrative of the evidence which we have given discloses a basis upon which it would have been open to the jury to conclude that the appellant collected two holdalls containing drugs in the public house in Montrose and transported them south towards Edinburgh. Especially given the weight of the holdalls, the presence of the "minder" vehicle and the appellant's reaction to the appearance of the Customs & Excise officers, it would have been open to the jury to conclude that the appellant was aware that there was something in the holdalls and that he was carrying the holdalls and their contents south. Indeed, taken along with the forensic evidence - and, again, subject to the points with which we deal later - it was open to the jury to conclude that the appellant was concerned in supplying the controlled drug, amphetamine. The appellant's substantive defence was that he thought that the holdalls contained "dodgy" lap-top computers. As was explained in Salmon v. H.M. Advocate and Moore v. H.M. Advocate 1999 J.C. 67 a defence of that kind arises under section 28(2) of the Misuse of Drugs Act 1971.

[6] When the trial judge came to give the jury directions on this defence what she said was as follows:-

[7] Three criticisms were made of this passage. First, it was said that the judge should have directed the jury, not merely that if they were satisfied they would be "entitled" to acquit the appellant, but that in that situation they would be bound to acquit him. We agree that, given the terms of section 28(2), the judge should, indeed, have directed the jury that in these circumstances they would be bound to acquit the appellant. Nonetheless, we are satisfied, looking at the way in which the trial judge specifically deals with the section 28(2) issue as a whole, including her description of it as a "defence" and the question arising from it as being whether the jury accepted the accused's explanation, that the jury could have done none other than acquit if they had accepted that explanation. We therefore reject this first criticism.

[8] The second criticism is that the trial judge failed to direct the jury as to what was meant by the reference to the jury finding itself satisfied "on the balance of probabilities". However, these are simple English words and it is difficult to see how their meaning could be improved upon, particularly when it was emphasised - as it was emphasised - that the standard of proof was lower than that applicable to the Crown. We accordingly reject this criticism also.

[9] We find the third criticism a little hard to follow, but it seems to be suggested that the trial judge erred because she said to the jury that the form of acquittal - if there was to be an acquittal - was one of "not guilty". The suggestion is that this was prejudicial, since it did not leave open to the jury a verdict of "not proven". In our view, however, any such criticism falls to be rejected. It is plain that in the present context the jury were being directed about acquitting the appellant if he made good his defence. The trial judge said that the jury could do this by finding the appellant "not guilty" and that, indeed, would have been the only logical verdict in the circumstances. In that situation, the specific reference to the not guilty verdict was in no way prejudicial to the appellant and we accordingly reject, also, this third criticism of the judge's directions.

[10] For these reasons we are satisfied that there was no misdirection on the part of the trial judge and we refuse that ground of appeal.

[11] The second of the appellant's arguments concerned the failure to cross-examine one of the customs officers, Colin McAllister, regarding his evidence that he was struck a glancing blow to the groin when the appellant manoeuvred his vehicle at speed at the Forth Bridge toll barrier. The appellant had subsequently given evidence that he had not struck Mr. McAllister and that, during the interview at the police station, Mr. McAllister had not complained of being struck. In that connection reference was made to certain passages in the transcript of the interview. However, the jury gave effect to the appellant's evidence in this regard by making an appropriate deletion in their verdict of guilty on charge 3 (which in its original form contained an allegation that the said McAllister had been struck by the appellant's vehicle to his injury). In these circumstances we are of opinion that the jury must have had doubts as to officer McAllister's credibility and/or reliability on this particular matter when considering their verdict on charge 3. They must also, we think, have been conscious of these doubts when considering their verdict on charge 1. The absence of cross-examination, even if it would otherwise have been material -which we doubt - can thus be seen to have had no adverse effect so far as the appellant is concerned. The appellant's response to this line of reasoning was that the deletion in question might have been due, not to the trial judge's specific direction that, if the jury preferred the accused's evidence on this matter they could make the deletion, but, instead, to the trial judge's general direction about the need for corroboration. This argument is, we think, in the circumstances rather unpersuasive, but, bearing in mind that in this case the direction on corroboration was specifically limited to the need to corroborate the commission of a "crime" - the crime of driving dangerously in a number of respects contrary to section 2 of the Road Traffic Act 1988, - we are left in no doubt that this ground of appeal must also be rejected. There is, incidentally, also the consideration that the jury is unlikely to have thought that there was any question of a legal insufficiency of evidence when the matter was specifically left to them by the trial judge as one of credibility.

[12] We turn, lastly, therefore to the ground of appeal which, as it happens, occupied most of the time at the hearing. This ground of appeal had two main strands to it. In the first place, emphasis was placed by the appellant on the fact that two witnesses, Mr. Northfield and Mr. McAllister, estimated the total weight of what was recovered at 50 kgs. and 40-60 kgs. respectively whereas the evidence of the forensic scientist, Miss Allsop, was that the total weight of what reached her would have been in the region of 25 kgs. Mr. Northfield, indeed, seems to have thought that each of the 25 packages was a 2 kg. package whereas, according to Miss Allsop, they would have been, even in their un-dried state, 1 kg. packages. In the second place, while the appellant did not dispute that the original 25 packages reached St. Leonards Street Police Station, he pointed out that it was not until around 4 p.m. on 19 March 1997 that, after being photographed and repackaged, they were said to have been taken to the laboratory for analysis. Not all of the intervening hours had been covered in evidence and there had thus been an opportunity for a "switch" to be made at some stage prior to the delivery to the laboratory of the drugs which were analysed and later produced in court. This, indeed, was precisely the inference which the appellant sought to draw from the difference in weights referred to above. This, of course, is a very serious allegation and it is perhaps understandable that it was not advanced in terms at the appellant's trial. However, there is no doubt that the discrepancies in estimated weight were relied on by counsel for the appellant and the trial judge expressly reminded the jury, not only of these discrepancies, but also that "the accused's position was that the drugs which we have seen in court did not come out of the two holdalls which he brought from Montrose to Edinburgh." She went on to say that the "significance, if any, which you feel ought to be attached to any discrepancy in the evidence on this matter of the weight of the holdalls is a matter entirely for you."

[13] In our opinion, that was a correct statement of the position. While the differing estimates of weight may seem on the face of it surprising, they are not so remarkable that the various witnesses cannot have been talking about the same packages, and whether they were indeed doing so was essentially a matter for the jury to determine in light of the whole evidence. There are considerations which could well have led the jury to the conclusion which they reached. It may be, for instance, that the estimates of the two lay witnesses were coloured by their expectation of what the weight was supposed to be. There is also the consideration that if some sort of "switch" had been made, as surmised by the appellant, it would have involved either or both of the police and Customs & Excise officers obtaining, within, at most, a matter of hours, 25 different, but similarly wrapped, packages of wet amphetamine which, according to the evidence, could only have come from a laboratory. Not only that, but anyone making this supposed "switch" would have known that the weights of the 25 substituted packages were, quite simply, wrong.

[14] In the result, we have come to the view that this third ground of appeal must also be rejected, whether in the form outlined above or in another form hinted at by the appellant, namely that the drugs should not, as he put it, have been "admitted" in evidence. If, as we think, it was a matter for the jury to make what they would of the discrepancies in estimates of weight, then clearly it was entirely proper that the drugs, as finally analysed, should have been produced at the trial. The appellant seemed to think that the fact that labels were not immediately attached to the packages contained in the holdalls, so soon as these were brought into the police station had some sort of bearing on this matter, but we cannot agree with that proposition. In Scottish practice paper or cardboard labels are attached to certain productions with a view to assisting, where necessary, in their later identification. However, it is the article to which they are attached which is of actual evidential value and the labelling is strictly ancillary. In the present case all the various witnesses purported to identify the drugs contained in Label Productions 11 and 12 as being the drugs in question, and they were not challenged on that identification. In any event, no amount of labelling could, or would, have prevented a "switch" taking place if that had been in the minds of the officers concerned.

[15] Lest it be thought that they have been overlooked, we note, for the record, that the appellant did make three incidental points in the course of advancing the main strands of his argument as outlined above. First, he suggested that if the drugs analysed had come from Holland they would have shown the hallmarks of a "common origin". We are far from satisfied that there was evidence before the jury one way or the other regarding common origin but, even on the hypothesis advanced by the appellant, we are unable to see that "common origin" has much bearing on the matter. On the face of it, at least, different batches of this illegal substance, with different chemical compositions due to impurities or to the working of the process as described by Miss Allsop, could well have come from the same factory. Next, it was suggested that the apparent lack of interest in bringing the Dutchman, Hans, to court was, or could have been, due to Customs & Excise officers and/or the police being aware that evidence had been "planted" by them. In our opinion, however, the evidence of Hans who, we were told, was already in prison in Holland, would have been quite irrelevant to the case as presented by the Crown and accordingly no such inference can be drawn. And, thirdly, the appellant submitted that, according to his own estimate, the drugs produced in court would only have half filled one holdall and that, even in their wet state, the maximum total bulk would have been less than one full holdall. This, he said, was in conflict with evidence to the effect that the holdalls, when recovered, were "pretty well full", "bulked out" and/or "obviously full" and this, in turn, supported the proposition that a "switch" had been made. The short answer to this is that the appellant's own estimate or estimates do not constitute evidence and are, indeed, no better than the observations which the jury could make for themselves. In particular, no experiment was carried out in court along the lines indicated by the appellant's submission. But, all this apart, the appellant was himself constrained to accept that the sort of descriptions given in evidence were, to a degree, both subjective and relative. They did not necessarily entail that every bit of space within each holdall was fully occupied and, in that regard, it is, we think, very instructive that the witness, D.C. Glasgow, was able to move and count the 25 packages without taking them from the holdalls.

[16] We also note, for the record, that the appellant sought to advance an argument in relation to the charge of dangerous driving along the lines that he had been forced to act as he did by reason of his misapprehension that at the Forth Bridge toll barrier he was being attacked by criminals. The jury's verdict on charge 2 suggests that they may well have disbelieved the appellant's testimony on this particular matter but, in any event, the defence of "necessity" was not put in issue at the trial nor, indeed, is it contained in any of the grounds of appeal.

[17] On the whole matter this appeal, in so far as directed against conviction, must be dismissed. The hearing will, however, be continued on the matter of sentence.