APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Cameron of Lochbroom Lord Caplan Lord Allanbridge
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Appeal Nos: C710/99 C778/99 OPINION OF THE COURT delivered by LORD CAMERON OF LOCHBROOM in APPEALS of ALAN NICOLSON and THOMAS DOWLING Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellants: V. Stacey, Q.C., Barr; Keegan Smith (First Appellant); W.G. Jackson, Q.C., McKenzie; Anderson Strathern, W.S. (Second Appellant)
Respondent: J. Gilchrist, A.D., Crown Agent
8 September 2000
The appellants went to trial at the High Court at Glasgow on an indictment containing four charges. The first two concerned the controlled drug, cocaine. The first charge libelled that
"between 30 October 1998 and 30 January 1999, both dates inclusive, at 26 Mansionhouse Road, Mount Vernon, Glasgow, at 72 Hollowglen Road, Glasgow, in a motor car travelling between Glasgow and Birmingham, at 68 Alwyn Walk, Birmingham, at St. Thomas Road, Birmingham, at Slade Road, Birmingham, at 9 Green Road, Dudley, West Midlands, at Birmingham Airport, at the Forte Post House Hotel, Chapel Lane, Great Barr, Birmingham, in a motor car then travelling between Birmingham and Peterborough, at the Passport Agency, Aragon Court, North Minster Road, Peterborough, in a motor car travelling between Peterborough and Cheriton, at the Channel Tunnel, at Coquelles, France, at Amsterdam, Holland, in motor cars then in the course of journeys between Cheriton aforesaid and Glasgow, at Hilton Park Service Station on the M6 Motorway, at Tebay Services in the North of England, at the M74 and at 'Drumtian', Old Gartcosh Road, Gartcosh, Glasgow and elsewhere in the United Kingdom"
the appellants were in relation to cocaine knowingly concerned in the fraudulent evasion of the prohibition on importation of controlled drugs contrary to section 170(2) of the Customs and Excise Management Act 1979. The second charge libelled that between the same dates, at the same places and in a motor car or motor cars travelling between the same places, the appellants were concerned in the supplying of cocaine contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. The third and fourth charges were in similar terms relative to the controlled drug, diamorphine. At the conclusion of the evidence for the Crown on 12 October 1999 a motion of no case to answer was advanced by counsel for Nicolson but was repelled by the trial judge. No evidence was led on behalf of Nicolson. Two witnesses were called on behalf of Dowling but Dowling himself did not give evidence. On 13 October 1999, the advocate depute intimated that he did not seek conviction on the charges involving contraventions of section 170(2) of the Customs and Excise Management Act 1979. On 14 October 1999 the jury unanimously found Nicolson guilty of each of the two remaining charges as amended by the Crown and by a majority found Dowling guilty of the same charges as amended. The amendments involved the substitution of the date "15 December 1998" for the first date in the libel and the deletion of the reference to an address at 72 Hollowglen Road, Glasgow. The case was adjourned to 4 November 1999 on which date Nicolson was sentenced to twelve years' imprisonment to date from 1 February 1999 and Dowling to ten years' imprisonment similarly backdated.
Both appellants have appealed against conviction and sentence. Separate grounds of appeal have been lodged on behalf of each appellant. One matter concerning the admissibility of evidence of a search of a motor car is common to both appeals.
However, in the case of the appeal by Nicolson, further and separate grounds of appeal were lodged. Certain only of these grounds were argued before us. It is convenient that we deal first with those of the grounds lodged for Nicolson which are distinct from those lodged for Dowling.
Grounds of appeal 1 and 6 to which ground of appeal 10, as amended with the leave of the Court, is also related, formed the first chapter of Mrs. Stacey's submissions on behalf of Nicolson.
These grounds are in the following terms:
"1. The Presiding Judge erred in repelling the Appellant's submission that there was no case to answer in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 with respect to charges 2 and 4. An individual cannot be concerned in supplying a controlled drug if he is not aware of being involved in supplying something and that in order to make out a case to answer on a charge of being concerned in supplying the Crown require to prove that, and only that, the Appellant knew that he was involved in supplying something and that something was in fact a controlled drug. The Crown failed to lead sufficient evidence to prove that the appellant knew that he was involved in supplying something...
6. Crown witness Wayne Ralph gave evidence at the said trail that the said Thomas Dowling paid for a car with Scottish bank notes. The Presiding Judge misdirected the jury at page 14 and 15 of his charge that because the said bank notes were Scottish the jury could infer a link between the appellant in the car because 'where would Mr Dowling obtain Scottish bank notes'. The Presiding Judge misdirected the jury by inviting them to speculate in this manner and this misdirection has resulted in a miscarriage of justice...
10. The Advocate Depute in his speech implied that there was evidence from which the jury would be entitled to draw an inference that the Appellant had been involved in putting the drugs in the car in Amsterdam. There was no such evidence, the tape recorded interview of Mr. Dowling not being evidence against the Appellant. The judge failed to direct the jury accordingly."
So far as the last ground of appeal as amended is concerned, we have had the advantage of being provided by counsel for Nicolson with a transcript of part of the Advocate Depute's speech to the jury. Having read and re-read the selected passage we can find nothing to justify the allegation in this ground of appeal. It was made clear to the jury by the Advocate Depute that they required to consider the evidence against each accused separately. The jury were addressed on the case against each accused separately. In dealing with the case against Dowling, the Advocate Depute made reference to material from a tape-recorded interview between Dowling and police officers and customs and excise officers. He was careful to make clear that he was concerned with Dowling's actions and what Dowling had said about his own actions in relation to what might be inferred from such evidence as to Dowling's appreciation of the purpose of what he was doing. The Advocate Depute was careful to make no reference by name to Nicolson when referring to statements made by Dowling of actions which involved him with others and from which, in the Crown's submission, the jury would be entitled to conclude that Dowling knew that he was bringing something into the United Kingdom that he should not have been bringing and that he was later transporting that something to Scotland. We should add, as appears from the trial judge's report, that when evidence was led by the Crown of the tape-recorded interview with Dowling, the jury were advised that it was evidence in relation to Dowling alone and no other person. This warning was reinforced in the trial judge's charge.
In relation to the first ground of appeal, Mrs. Stacey submitted that while the material evidence referred to in the trial judge's charge was evidence in the case, there was not sufficient within it to allow the case against Nicolson to go to the jury. She submitted that there was no sufficient evidence from which the jury could infer that Nicolson had any reason to think that drugs were concealed in the Rover car in which the controlled drugs were found. Mere presence in connection with the Rover car was insufficient. For there to be sufficient evidence to prove the charges so far as laid against Nicolson, it was essential that there was evidence from which the jury were entitled to conclude that there was an enterprise to supply something in the first place, and secondly, evidence from which the jury were entitled to conclude that Nicolson was involved in such an enterprise and knew that he was so involved. Reference was made to Salmon v. H.M.A 1999 J.C. 67. She accepted that in his directions to the jury the trial judge had correctly stated the law in the following passage:
"...the Crown does not require to prove that any drug was actually supplied to any person. In order to prove being concerned in supply against either accused, the Crown must prove four things really. First, that there was an enterprise which had as its objective the supply of a controlled drug. Secondly, that the accused participated in that enterprise: thirdly, that the accused knew that what he was involved in was an enterprise involving the supplying of some material and, fourthly, that the material concerned was the controlled drug which is named in the charge. It is not necessary for the Crown to prove that the accused knew that the enterprise involved the supply of a particular controlled drug or, indeed, of any controlled drug. The Crown simply needs to prove the enterprise involved the supplying of some material."
So far as the evidence which related to the case against Nicolson is concerned, the trial judge tells us in his report that it began with evidence that on 26 January 1999 Nicolson was followed from Glasgow to Birmingham in his own car, a BMW. On the morning of the following day, 27 January, he was seen to meet Dowling near the latter's house. After a conversation between the two men in the BMW, Nicolson drove off towards the centre of Birmingham. During the evening of the same day, Dowling purchased a Rover car from a Mr. Ralph, who lived in Dudley. Ralph was paid by Dowling in Scottish banknotes. In the early hours of the morning of 28 January 1999 Nicolson drove the BMW into a car park at Birmingham Airport. About 30 minutes later Dowling drove the Rover car into the same car park. The two men were then seen to converse together in the car park. Shortly thereafter the Rover car left the car park. In a statement made under caution following his detention Nicolson admitted that he was a passenger in the car at this stage. Shortly after midday on that day the Rover was seen outside the passport office at Peterborough where Dowling obtained a passport. In the same statement, Nicolson admitted that he had accompanied Dowling in the Rover car to Amsterdam having crossed by way of the Channel Tunnel. He maintained that the purpose of his visit to Amsterdam was innocent, being concerned with visiting the flower market there. He stated that he had flown back from Amsterdam and this was confirmed by the production of an airline ticket. On the evening of 29 January, the Rover car driven by Dowling crossed from France to England by way of the Channel Tunnel. Dowling was alone in the car. The car was driven to Maidstone where Dowling made a phone call. Thereafter, in the early hours of 30 January Dowling drove the car to Birmingham and parked it outside his house. About three hours later, at 8.12 a.m., Dowling drove another car, a Citroen which had been parked outside his house, to the Post House Hotel, Great Barr, and this car was parked in the hotel car park. Nicolson's BMW car was at that time in the hotel car park. In a joint minute of agreement read to the jury it was admitted that Nicolson had spent the previous night in the hotel using a false name. Dowling drove off in the Citroen car some fifty minutes after his arrival at the hotel, returned to his house, collected the Rover car and drove northwards from Birmingham on the M6. At about 10.08 a.m. the Rover car entered the Hilton Park Services area. A minute later Nicolson driving the BMW entered the same service area. There was evidence that as Dowling was paying for petrol, he turned towards Nicolson and nodded his head. Thereafter both cars left the service area and drove off northwards. At about 12.20 p.m. Nicolson and Dowling were observed to meet together in the coffee bar of the Tebay Services area off the M6. They spoke together for about 30 minutes. Nicolson then went to use a telephone. He was overheard to say "Everything is fine, it's hunky dory" (though it was accepted by Mrs. Stacey that Nicolson also went on to say "We'll be up the road in an hour and a half"). Nicolson then returned to the coffee shop where he spoke again to Dowling. Nicolson and Dowling then left the services area in the BMW and Rover cars respectively and drove northwards in convoy, eventually arriving at a house called Drumtian in Old Gartloch Road, Gartcosh, belonging to a friend of Nicolson. On arriving at that address, the Rover car was driven to a garage at the side of the house. Both Nicolson and Dowling were detained. The Rover car was removed from the premises and taken to Paisley police office. There it was searched by police officers and Customs and Excise officers. In the rear bumper was found to be concealed a considerable quantity of drugs, namely some 5.586 kilogrammes of cocaine with an estimated street value of between
Each appellant was interviewed under caution. The trial judge tells us that the contents of the statements were as follows. Nicolson made no admissions of guilt. He claimed to have no knowledge of any drugs. He stated that he had gone to Amsterdam in order to look at the flower market with a view to starting a wholesale flower business. He said that Dowling and he drove to Scotland from Birmingham because Dowling had asked him if he could sell the Rover car and Nicolson thought that a friend of his in Scotland might be interested in buying it. He denied that he had instructed Dowling to purchase this car. Dowling gave a detailed account of his movements. He implicated Nicolson in the events leading up to and following on from the journey to the Netherlands which had been made by both appellants. According to Dowling it was Nicolson who had instructed him to purchase the Rover car. Dowling further claimed that he was throughout acting on Nicolson's instructions.
Mrs. Stacey accepted that the jury would be entitled, on the evidence before them, to hold that the drugs had been concealed within the Rover car while it had been in Amsterdam and to hold that it had been driven to Amsterdam for that purpose. She also accepted that there was sufficient evidence to entitle the jury to hold that Dowling was involved in an enterprise of bringing drugs from Amsterdam to Scotland.
She then turned to the trial judge's charge in which he dealt with the case against Nicolson. In it the trial judge after having made a general reference to the fact that the jury had already heard what had been said by the Crown and by counsel for the accused in relation to the evidence against each accused, said this:
"What I'm going to do is to highlight the matters which, if accepted by you, would entitle you to draw certain inferences. Whether you actually draw these inferences is a matter entirely for you."
The first matter to which the trial judge referred was to certain telephone calls made by Nicolson to Dowling and Dowling to Nicolson. While this evidence is not mentioned in detail in the trial judge's report, it appears that telephone records were produced of calls made between Nicolson who lived in the Lanarkshire area and Dowling who lived in the Birmingham area in the days prior to 26 January 1999. Mrs. Stacey informed us that Nicolson at interview had indicated that he and Dowling were well acquainted prior to January 1999 and that Dowling was an electrician who had carried out electrical work for him on various occasions. Accordingly the fact that there were such calls, was not sinister.
The next matter was evidence about a meeting between Nicolson and Dowling on the Wednesday morning following Nicolson's journey from Glasgow to Birmingham. In his charge the trial judge drew attention to the uncertainty which Nicolson had expressed at interview about whether such a meeting had taken place. He also drew attention to evidence of a Crown witness whose evidence, on the basis of its timing, appeared to cast doubt on the meeting having taken place. On the other hand, the trial judge reminded the jury of surveillance evidence which appeared not to have been challenged in cross-examination. The jury were advised that it was up to them to decide whether or not such a meeting took place. Mrs. Stacey did not criticise this passage.
The next matter to which the trial judge referred in the context of a meeting having taken place, was the evidence given by the witness Ralph who sold the Rover motor car to Dowling and who was paid in Scottish bank notes. This is a matter which is more specifically raised in the ground of appeal numbered 6. Mrs. Stacey suggested that the trial judge was inviting the jury to speculate on the matter of a connection between Nicolson and Dowling in the purchase of the Rover motor car for a sum of £1700, all paid in Scottish banknotes. There had been some evidence given to the effect that a deal had been done in Scotland in relation to some coarse fishing involving Nicolson and Dowling. There had also been evidence to the effect that Dowling had indicated that while he had a car, he had wanted the car for the use of his father and had gone to phone his father. That may be so, but we observe that in the transcript of the Advocate Depute's speech to the jury, he spoke of Ralph having given evidence that prior to the sale of the Rover car being agreed, the person to whom he sold the Rover car had phoned the Post House Hotel at Birmingham, which Nicolson said was the hotel which he used. However the matter be, the trial judge made clear that the issue was one for the jury to determine whether they considered any inference could be drawn from the use of Scottish banknotes to pay for the Rover car, such as to connect Nicolson with the transaction for the purchase of the Rover car. We consider that the trial judge properly left it to the jury to consider. The fact that Scottish banknotes had been used was an adminicle of evidence to which the jury were entitled to have regard in the light of such preceding communings between Nicolson and Dowling as they held to have taken place, as well as in the context of Nicolson's subsequent actions in meeting up with Dowling at the car park at Birmingham Airport and travelling with him in the Rover car to Amsterdam. It is of some import that in his speech the Advocate Depute reminded the jury that there had been evidence that at 3.26 a.m. on the morning of 28 January Nicolson had driven his BMW car into the car park at Birmingham Airport, that telephone records indicated that about seven minutes later there was a call from one of Nicolson's phones to Dowling's phone and that half an hour later Dowling had arrived in the Rover car.
Mrs. Stacey appeared to be critical of the trial judge's reference to Nicolson's presence in Amsterdam. She pointed out that there had been no evidence as to what Nicolson had done in Amsterdam. He had not returned in Dowling's company but had flown back on his own. In his statements at interview Nicolson said that he had been going to Amsterdam to look into the possibility of becoming involved in the business of selling flowers at home. But it was a matter for the jury to determine whether to accept or to reject such an explanation. If it were to be rejected, then the fact that Nicolson had travelled in Dowling's company in the Rover car to Amsterdam and then flown back to Birmingham and subsequently met up again with Dowling and the Rover car, was evidence which was relevant to the inference that he was engaged in the same enterprise as Dowling with the Rover car.
The next matter to which the trial judge referred was the evidence of Nicolson in the BMW car and Dowling in the Rover car driving north together and the evidence about the words said to have been spoken during a telephone call made by Nicolson from the Tebay Services area. This was a call which Nicolson had appeared to accept that he had made, and, in so doing, had said he was telephoning his friend, David Brown. The trial judge reminded the jury that Nicolson had explained at interview that he and Dowling were going to Brown's house in connection with a possible sale of the Rover and invited them to consider whether if he said the words spoken to in evidence, these could refer to the sale of the car. Mrs. Stacey suggested that the phrase spoken to in evidence as having been overheard during the course of the telephone call, was neutral. But that again was a matter for the jury to weigh in the context of the whole evidence of dealings between Nicolson and the Rover car, which was found after its arrival at Brown's house to have controlled drugs concealed within it.
In her final submission that the evidence in relation to Nicolson gave rise to nothing more than suspicion that Nicolson was engaged in the same enterprise as Dowling, Mrs. Stacey referred to the decisions in McCadden v. H.M.A. 1986 S.C.C.R. 16, Clements v. H.M.A. 1991 J.C. 62 and Duffin v. H.M.A. 2000 S.C.C.R. 266. However, each case must depend upon its own facts and circumstances and we find nothing in those cases which is of more than general assistance for the present appeal.
The case against Nicolson was undoubtedly circumstantial in the sense that proof of his complicity in and knowledge of the enterprise required to be inferred from a number of separate pieces of evidence, some of which were individually consistent both with the existence of that fact and with the possibility of innocent explanations such as were advanced by Nicolson in the course of his interview or those to which Mrs. Stacey otherwise drew attention. But if, despite the other individual possibilities, all the circumstances agreed in supporting the existence of the fact in issue, namely his complicity in and knowledge of the enterprise as one involving the supplying of something, it was open to the jury to hold that the fact of complicity and knowledge was proved.
We bear in mind that the jury were reminded by the trial judge that throughout his interview Nicolson denied any involvement with drugs and any knowledge of drugs, that if they accepted what he said during the interview as true, they were bound to acquit and furthermore that, even if they did not accept what he said entirely but nonetheless it raised a reasonable doubt as to his guilt, they were bound to acquit. In addition, the trial judge correctly directed the jury that even if they rejected what Nicolson said in his interview as a denial of guilt, they still required to look at the Crown case and decide whether they were satisfied beyond reasonable doubt that the Crown had proved both involvement and knowledge. He made it clear that the inferences to be drawn from the matters to which he drew attention, were for the jury alone to determine.
We are in no doubt that, since the jury must have rejected Nicolson's exculpatory statements as the truth and also the other evidence pointing to explanations other than guilt, as they were entitled to do, the material referred to by the trial judge in his charge was, when put together with the whole background evidence drawn from observation of the movements of Dowling and Nicolson, capable of bearing the inferences that Nicolson was a prime mover in the enterprise, that he funded the purchase of the Rover car, directed its journey to Amsterdam, leaving Dowling to drive the cargo in the Rover car back to the United Kingdom, and that thereafter, on the arrival of Dowling with the Rover car in Birmingham, he took direction of the journey of the Rover car from Birmingham to its destination in Gartcosh and made the necessary arrangements for its reception there. From all these factors the jury were entitled to conclude that Nicolson knew that the enterprise involved the drugs found within the Rover car. In our opinion, there was ample evidence before the jury to entitle them to draw the critical inference of knowledge. It was a matter for the jury and the result arrived at was one which the jury were fully entitled to arrive at. It follows that the grounds of appeal directed to this chapter, namely, that there was insufficient evidence to convict Nicolson and, in particular, insufficient evidence of knowledge on his part of the existence of the drugs, fail.
The next ground of appeal was directed to a passage in the trial judge's charge which was said to create a mechanism whereby the jury could use the interview of Dowling to assess the veracity of Nicolson's interview. The ground of appeal is in the following terms:
"9. There has been a miscarriage of justice in that the Presiding Judge
further misdirected the jury at page 11 of his charge to the jury by stating that 'you may think it is obvious that the account given by each accused differs in important details from the account given by the other accused and is, therefore, you may think, impossible that both accounts could be entirely truthful.' This passage amounted to a misdirection because it creates a mechanism whereby the jury could use the interview of the said Thomas Dowling to assess the veracity of the appellant's interview. The said Thomas Dowling's interview was not evidence against the appellant."
Mrs. Stacey accepted that each of Dowling and Nicolson gave differing accounts of their respective movements at interview. But, she said, the effect of what the trial judge said was to allow the jury to do that very thing which they had been directed not to do, namely, to use the evidence of what Dowling said at interview as evidence in relation to the case against Nicolson. To allow the jury to do so was to offend against that prohibition in a manner similar to what had been done in, for example, McNicol v. H.M.A. 1993 S.C.C.R. 242 or Ridler v. H.M.A. 1995 S.C.C.R. 655. In our opinion, the circumstances in the cases cited by Mrs. Stacey were entirely different from the present. In McNicol the trial judge, in discussing the appellant's case that he was elsewhere at the time of the assault with which he was charged, misdirected the jury by referring to his co-accused's statement to the police in order to test the appellant's evidence that his co-accused had not been in a certain house while the appellant was present. In Ridler the sheriff, having given clear and unexceptionable directions as to the principle to be applied, thereafter in the course of making reference to the case in relation to the appellants, twice made comparisons of the appellants' position by reference to answers given by the other in their interviews.
At an early stage in his charge the trial judge in the present case said this:
"In the dock at present, ladies and gentlemen, there are two accused. You must consider the case against each accused separately. Some of the evidence may be common against both accused. Nonetheless, you must look at the case against each accused separately.
In this case there's one point in particular I should emphasise and that is that each accused was interviewed at considerable length by Customs officials said by police officers and, said certain things in the course of these interviews. I remind you that what was said by each accused, in the course of his interview, is not and, cannot be, evidence against the other accused. It is evidence only against the accused who's being interviewed. The reason for that is simply because the other accused wasn't present during the interview and, is not free to comment on what was said."
Subsequently the trial judge gave directions about the nature of certain evidence given in the form of statements. It appeared that the Crown led evidence of a witness Bullock in the form of a statement. The trial judge reminded the jury that there had been no opportunity for either the Crown or indeed the defence to test it by cross-examination but that the weight of the evidence was entirely a matter for the jury. The trial judge then reminded the jury that evidence had been given by two witnesses for the defence on behalf of Dowling and that their evidence required to be considered just as carefully as the evidence given by witnesses led for the Crown. He went on as follows:
"In this case, the two accused did not give evidence. They're perfectly entitled not to give evidence. But, you did have evidence of something they said in the past. The Crown led evidence of what each accused said in the course of their interviews. It is for you to consider whether all or any part of what was said in the course of these interviews was proved and, to that extent it is the equivalent of evidence given by the accused in court. As with the evidence of Mr Bullock, his statement, I would remind you that that evidence of the statements made by each of accused, could not be tested in cross-examination, either by the Crown or by the co-accused and, that is something that you will bear in mind in considering the evidence of what was said in the course of the interviews. And, you may think it is obvious that the account given by each accused differs in important details from the account given by the other accused and is, therefore, you may think, impossible that both accounts could be entirely truthful.
I remind you again because, it is important, what one accused said in interview is not evidence against the other accused."
This passage occurs before the trial judge comes to make any reference in detail to the case in relation to either appellant. Nowhere in his subsequent directions in regard to the case in relation to Nicolson does he make any reference to any evidence derived from Dowling's statement nor indeed does he do so contrariwise when referring to the case in relation to Dowling. Fairly and properly read in its context the passage, to which Mrs. Stacey's submission was directed, was, in our opinion, a plain statement of fact and the purpose of it was simply to reinforce the direction which the trial judge then came to repeat, namely, that what one accused said at interview was not evidence against the other accused. The jury would also recollect that at the time that the statement of Dowling was introduced into evidence, the trial judge had directed them that it was evidence only against Dowling and no other. In our opinion, there is no merit in this ground of appeal.
The next ground of appeal concerned a procedural aspect of the trial. It was in the following terms:
"Natural Justice requires not only that justice be done but also that it be seen to be done. During the course of the trial a female juror became concerned because she knew associates of the Appellant who were sitting in Court observing evidence. The said juror was concerned to the extent that she felt ill. The said juror initially conveyed her concerns to the Clerk of Court. For reasons unknown to the Appellant the said Clerk of Court did not see fit to raise this matter with the Presiding Judge or Counsel for the Appellant. Two days after the said juror's initial concerns the matter came to light before the Court. Despite submissions by Counsel for the appellant that the issue be dealt with in open court the Presiding Judge interviewed the said juror in private with the said Clerk of Court. Counsel for the appellant was denied access to this said private interview. The Presiding Judge concluded that the said juror was unfit to serve and explained that the said juror had said she had not discussed the said matter with the other 14 jurors. The Presiding Judge decided to continue the trial with the remaining 14 jurors. The Presiding Judge repelled a submission by the Appellant that the Judge interviewed the remaining 14 jurors regarding what information they may have received from the said dismissed juror. There has been a breach of Natural Justice because:
(a) The interview of the said juror should not have taken place in private. It should have taken place in open court particularly given that the said Clerk of Court has not seen fit to raise the said matter for two days.
(b) The Presiding Judge should have interviewed the said remaining jurors to ascertain if their objectivity had been contaminated by the behaviour of the said juror during the course of the said two days."
In his report the trial judge explains the circumstances to the best of his recollection. On the fifth day of the trial he was informed by the clerk of court that one of the jurors was unhappy. He directed the clerk to keep the juror separate from the remaining jurors when the court convened the following day. That morning he heard brief submissions from the advocate depute and counsel for Nicolson as to what steps he should take to ascertain the juror's position. Counsel invited him to interview the juror in open court. Following an adjournment to enable counsel to make further inquiries, the trial judge was informed by the advocate depute that he had knowledge of two cases in the High Court in which the trial judge had interviewed a juror alone and that the Crown had no objection to the trial judge interviewing the juror in private. Counsel for Nicolson had submitted that the interview should take place in chambers with counsel present but, according to the trial judge's note, accepted that the matter was one for the judge's discretion. The solicitor advocate for Dowling made reference to the cases of Robertson v. H.M.A 1996 S.C.C.R. 243 and Pike v. H.M.A. 1987 S.L.T. 488. The trial judge tells us that he decided to interview the juror in chambers with only the clerk of court present. Having interviewed her, he reached the conclusion that she should be excused from further service on the jury. He was advised by the juror that she had not said anything to the other jurors more than that she had recognised someone in court. Having formed the view that he did, the trial judge returned to court in the absence of the remaining jurors. He informed the Crown and defence representatives of what had occurred in chambers. The advocate depute moved for discharge of the juror and to allow the trial to proceed with the remaining 14 jurors. Counsel for Nicolson then moved the trial judge to interview all the remaining jurors in order to find out what information had been given to them by the juror. Neither the advocate depute nor the solicitor advocate for Dowling considered that any further inquiry was necessary. The trial judge decided to grant the motion for the Crown. He tells us that he did not consider that any further inquiry was necessary as he was satisfied with what the juror had told him about the communication with the other jurors. He then says this in his report:
"In any event I had no reason to think that the jurors would disobey the direction which I intended to give them that they must decide the case only on the evidence which they had heard in court. To have interviewed each juror separately would, in my opinion, have been likely to be upsetting to them and to have given undue prominence to the fact that (the juror) had had to be discharged."
Mrs. Stacey advised us that her information was to the effect that the juror's unease and agitation derived from two matters. The first was that some days previously the juror had observed a lady in the public benches who looked like Nicolson and whom the juror had assumed to be Nicolson's sister. The second was that on the previous day she had recognised the name of a person mentioned in evidence as being the same as that of a person who lived close to where the juror stayed. These two matters had made the juror feel ill. Mrs Stacey submitted that in the whole circumstances the trial judge should have gone further than he had done and should have made further inquiry of the remaining jurors. However, she accepted that the matter must be one for the discretion of the trial judge.
As was observed in the case of Pike v. H.M.A., there can be no rigid drill to be followed by a trial judge in all circumstances as to whether and to what extent and in what manner he will investigate matters affecting the jury as a whole or individual jurors. It must be a matter for the individual trial judge to decide in the circumstances as they are made known to him. It is sufficient to say that in the circumstances explained to us in the trial judge's report and further amplified by what was said by Mrs. Stacey, we are satisfied that the course adopted by the trial judge was both within his discretion and appropriate to the circumstances as they were made known to him. The reasons given by him for not proceeding further than to discharge the juror appear to us fully justified. In his charge he made it clear to the jury that they had to decide the case on the evidence that they had heard and nothing else and that that meant that they must not speculate. Accordingly, we can find no warrant for the criticism of the trial judge's conduct put forward in this ground of appeal.
The final matter that was the subject of the appeal was one to which both appellants directed grounds of appeal. In the case of Nicolson it was as follows:
"11. Counsel for the Appellant objected during the course of evidence by Detective Inspector Campbell Corrigan to a search of the Rover vehicle on the basis that the said search was unlawful it having been carried out without a warrant. The Presiding Judge erred in repelling the Appellant's objection and accordingly there has been a miscarriage of justice because without this evidence being admitted there would not have been sufficient evidence to convict the Appellant."
In the case of Dowling it is set out in the following grounds:
"1. There has been a miscarriage of justice arising from the Trial Judge's refusal to allow an objection to the evidence relating to the lawful search of the Rover motor vehicle. In repelling the objection and allowing the evidence to be led the Trial Judge allowed evidence which had been unfairly obtained to be before the jury.
2. The Trial Judge erred in coming to his decision to repel the objection to the evidence in relation to the search of the Rover motor vehicle without the benefit of a trial with a trial. There was a wealth of information available in relation to the details of the search and the circumstances surrounding the removal and search of the Rover car which formed the basis of the submissions. The Rover vehicle was driven by the appellant into the driveway of a house in Old Gartloch Road. The operation was carried out by Customs and Excise officers and Police. Police gave instructions for detentions to take place and these detentions were carried out by Customs and Excise officers. Police instructed the Rover motor vehicle to be removed to Paisley Police Office. The appellant was detained at 14.55 hours. The car was removed at 15.50 hours. At 16.45 the bumper of the vehicle was removed and the consignment of drugs discovered. Crown production no. 68 was the search warrant obtained for the house at Old Gartloch Road at 17.35 hours."
The objection which gives rise to these grounds of appeal was taken by the solicitor advocate for Dowling in the course of evidence in chief of Detective Inspector Corrigan. At the outset counsel for Nicolson associated himself with the objection but did not do more subsequently than adopt the submissions made by the solicitor advocate. Prior to Detective Inspector Corrigan giving evidence, evidence had been given by Detective Inspector Hefron of the Scottish Crime Squad. A transcript of a part of his cross-examination was provided to us. From this it appeared that he was engaged in the surveillance operation but took no part in the subsequent detention of Nicolson and Dowling apart from giving instructions that they and the BMW and Rover cars were to be detained. As regards the Rover car, his instructions were that the car was to be detained for the purposes of a search. These instructions were to be carried out by the detention team of police officers which was under the charge of Detective Inspector Corrigan and which moved in along with Customs and Excise officers. The point at which the objection was taken was when Detective Inspector Corrigan had just said that he had given the instruction to police officers to remove the Rover motor car to a police office.
We have been provided with a transcript of what passed at that time. It appears that initially the objection was stated as one to the line of evidence. Subsequently the solicitor advocate agreed that his objection was really concerned with the fact that the search took place when it did without a warrant and was therefore irregular.
From the transcript it is clear that though evidence had yet to be given on the matter of the detention of the appellants and the seizure, removal and search of the Rover car by police officers and customs and excise officers, a summation of what would be the salient features arising from such evidence was put before the trial judge by the solicitor advocate and was apparently not in dispute as matters of fact relevant to the objection. These features were that a police officer, Sergeant Gilfillan, removed the Rover car from the grounds of Drumtian on the instructions of Detective Inspector Corrigan. The car was driven to Paisley police office. It was there when at 15.50 hours a Crown witness, Constable Johnstone, set his sniffer dog on it. The dog interested itself in the back bumper of the car. By 16.45 hours the bumper had been removed and the cocaine and diamorphine were found secreted in the bumper. The court was further advised that police officers had, prior to the conclusion of the surveillance operation, obtained warrants for the search of a set of three premises. It was said that where the Rover car eventually ended up at Gartcosh, had not been anticipated by the police and there was no search warrant relative to those premises obtained until 1735 hours. That warrant was obtained in terms of the Misuse of Drugs Act 1971 and it was accepted before us that the warrants which had been granted earlier had also been obtained in terms of that Act.
As recorded in the transcript, the solicitor advocate perceived the problem as one that the act of searching the vehicle and the recovery of the relevant productions had already taken place by the time that the warrant arrived at the premises, "so even if...there was some title on the part of the police to take the vehicle to a police office as a place of safety...the police had the time to go and obtain a warrant and could easily have contacted the searchers and told them 'Yes, we have a warrant and you may now proceed to search the vehicle'. The warrant should only cover 'future actings and not past dealings and...the finding of the drugs is not covered by the warrant and, accordingly, there is an irregularity in these proceedings'". There then followed this passage:
"Now, my Lord, irregularities require to be excused and some sufficient cause should be shown by the Crown as to why this particular irregularity should be excused.
Now, I think firstly, my Lord, there is the question of the urgency of the situation. Now, your Lordship will have heard the evidence yesterday of Detective Inspector Hefron, who indicated to the team, as it were, that the surveillance was over. There were a number of police officers and Customs officers on the scene. There did not appear, my Lord, to be any further enquiries which required to be made. The vehicle was in the custody of the police and it was not in a remote spot. There's no suggestion that there was a lack of officers to keep the vehicle under observation. In fact, at the time the search took place, the vehicle was in a police office.
I look also, my Lord, at the situation with regard to where the suspect was....
TEMPORARY JUDGE STEWART: I'm sorry, Mr McSherry, I thought I understood your objection to be directed at the instructions given to remove the vehicle.
MR McSHERRY: Yes. Yes.
TEMPORARY JUDGE STEWART: Well, you've just said.... (two/three words indistinct) the vehicle was in a police office.
MR McSHERRY: Yes.
TEMPORARY JUDGE STEWART: You seem to be accepting that there was a reason to remove the vehicle to the police office.
MR McSHERRY: I think, my Lord, I'm objecting to the line of evidence, and we are going to have to.....
TEMPORARY JUDGE STEWART: It seems to me your objection is really concerned with the fact that the search took place when it did without a Warrant. Is that not the objection?
MR McSHERRY: Yes, I think it is, my Lord.
TEMPORARY JUDGE STEWART: Yes, so it's a question of whether there was.... You say that was irregular, and whether that irregularity is justified.
MR McSHERRY: Yes.
TEMPORARY JUDGE STEWART: And that is really the issue, isn't it?
MR McSHERRY: Yes, that's the nub of it, my Lord."
The solicitor advocate then went on to detail the factual situation as regards Dowling, namely that he was detained by customs and excise officers as recorded in a Crown production. This production recorded that his detention had started at 14.55 hours, that he was taken to London Road police office and that his arrival there was timed at 15.46 so that the six hour limit of time for his detention expired at 20.55. Within this time scale it was submitted that the police would not have been prejudiced in any way by waiting for the warrant to be granted for a search of the car and thereafter sufficient time would have remained to carry out any subsequent interview, should that be necessary. In support of his submissions on the removal of the Rover car, the solicitor advocate then referred to Edgely v. Barbour and Baxter v. Scott. There had been no question of the car being in a remote situation or of there being any particular urgency. Equally it had been a positive search for and not an accidental discovery of, the drugs. There had been a serious irregularity which could not be excused. The trial judge was invited not to excuse it and to disallow the line of evidence upon the Crown were embarking. At this stage the trial judge's understanding of the objection was expressed as follows, namely, that the search was carried out without a search warrant being in existence at the time, that that was prima facie irregular, that there was no justification for the irregular search and therefore that anything recovered as a result of the search was inadmissible as evidence.
In response to these submissions, the advocate depute's principal argument was that no warrant was required by the police because of the powers which were available to the police in terms of section 23(2) of the Misuse of Drugs Act 1971. He also referred to the powers available to customs and excise officers under section 163(1) of the Customs and Excise Management Act 1979. He made submissions by reference to other statutory powers and police powers at common law but in the eventual disposal of the objection, these matters were not of moment. However, he reminded the trial judge that some evidence had been given that it was suspected that the Rover car contained a substantial quantity of controlled drugs and that Detective Inspector Hefron had given evidence that in his experience drugs were sometimes concealed within the body of the vehicle and not openly visible in the car. It was unrealistic to expect police officers to arrange for someone who was skilled in dismantling a car to attend the locus and begin a search there which might involve dismantling the car. Reference was made to Campbell v. H.M.A. 1992 S.C.C.R. 35. The search was not irregular. But in any event there was good faith on the part of the officers who took and searched the vehicle and therefore any irregularity could be excused.
In reply to the submissions for the Crown relative to the Misuse of Drugs Act 1971 and section 163 of the Customs and Excise Management Act 1973, the solicitor advocate maintained that the powers of search under neither Act could apply "to the intrusion into private premises", the vehicle being "within the curtilage of the bungalow". In those circumstances, when the vehicle was within the curtilage of premises, the proper method of searching the vehicle was for a warrant to search the premises to be sought. Thus, he said, section 23 of the 1971 Act did not give "the police the power to detain any vehicle by removing it from the premises" so that the section had "no real application, given the particular circumstances of this case". The powers available under section 163 of the 1973 Act were similarly circumscribed and could not apply where there was "an intrusion into private premises".
The trial judge dealt with the objection as follows:
"The objection taken by Mr McSherry amounts, it seems to me, to a submission that the search of the vehicle was illegal and, therefore, evidence of what was recovered must be inadmissible.
The Crown position is that the search was quite legal, either under the Misuse of Drugs Act 1971 section 23(2)(b) or, possibly and/or, the Customs and Excise Management Act 1978 section 163 sub-section 1. Both these sections require, and I quote, 'reasonable grounds to suspect'. I'm satisfied, on the evidence I've heard, that such grounds existed here and, in fact, I understood this not to be challenged.
The point taken by Mr McSherry was that the car was on private property and, therefore, no search could take place without a Warrant having been obtained. In my opinion, this submission is ill-founded in the context of this present case.
The facts are that the car had very recently been driven. It had just, immediately prior to being taken possession of, been put into a garage. In my opinion, it would be quite unrealistic and artificial to distinguish the moment in time when the vehicle was on the street having just stopped after being driven and the moment in time when the vehicle was being put in the garage. The fact that the garage is private property, whereas the street isn't, is in my opinion immaterial. Therefore, the police and/or Customs officers were entitled to search the vehicle.
There was I think the subsidiary point that the vehicle was removed by these officers to a police station for the purpose of this search. In my opinion, the police are perfectly entitled to do this. What they were doing was taking the vehicle to a convenient place where the search could be carried out in safe and secure conditions, and that again is simply the practicality of the situation.
I shall, therefore, repel the objection to the line of evidence. I should add that I reserve my views on the other submissions made, although I'm inclined to the view that if there were any irregularity about the search, then such an irregularity was probably excusable."
It is appropriate to note that before this court it was indicated that the Crown evidence was to the effect that when Dowling drove into the drive at Drumshian in the Rover car, followed by Nicolson in the BMW car, Dowling backed the Rover car into the garage where it was parked half in and half out of the garage. Dowling had then got out of the car, leaving the keys in it. Customs and excise officers and police officers had then moved in. As the transcript of the submission before the trial judge indicates, and as was confirmed in the course of evidence given subsequently by a customs officer named McPherson, Dowling was detained in the front garden of Drumshian at 1455 hours in terms of section 24 of the Criminal Law Consolidation (Scotland) Act 1995 on suspicion of having committed an offence punishable by imprisonment, the suspicion being that of being involved in the importation of a controlled drug. Police officers then removed the Rover car.
For Nicolson, Mrs. Stacey submitted that there was no statutory power enabling the police officers at the time to seize and remove the Rover car. The car did not belong to Nicolson. There was no urgency nor necessity to do so at the time spoken to in evidence. Other options were available to those then present such as maintaining a watch on the vehicle until a search warrant for the premises had been obtained. In the evidence given by those officers involved in the operation, no power was referred to as having been exercised other than that under section 24 of the Criminal Law Consolidation (Scotland) Act 1995. In particular, Detective Inspector Corrigan made no reference to any statutory powers relative to the instructions given by him to police officers. It was incumbent upon the police to identify precisely the powers under which they were acting (Wither v. Reid 1980 J.C. 87). There was in the circumstances no common law power which was available to the police to seize the vehicle as it was on private property. Such a power arose only if the police had been so directed by the procurator fiscal, and there was no suggestion that such a direction had been given (Watson v. Muir 1938 J.C. 181). Nor was there any evidence led upon which any irregularity could be excused.
On behalf of Dowling, Mr. Jackson submitted that while it might be said that the right issues had not been properly tackled in the course of the debate, nevertheless the general point of importance had been focused, namely, where a vehicle was on private property, in relation to which no warrant to search was then in existence, what in fact were the powers which were exercised and which entitled the police officers in advance of obtaining a search warrant, to seize and remove the Rover car and thereafter to search it. The trial judge should not have proceeded to decide the matter without some evidential investigation. There was no basis in the evidence for this decision although he accepted that no suggestion had been advanced in the course of the debate on the objection that there should be a trial within a trial. All that could be said was that on balance the powers that had been operated must have been those under section 24 of the 1995 Act, since that was the only power referred to in evidence. In addition it appeared from the evidence, in particular of Detective Inspector Hefron, that the operation was being controlled by the Customs and Excise officers exercising the statutory powers available to such officers, powers which would also be available to those police officers assisting in the assigned matter, as provided for by section 8 of the Customs and Excise Management Act 1979. The operation had been conducted as such an assigned matter and had nothing to do with the powers under section 23 of the 1971 Act. The provisions for personal search did not permit the seizure and search of the Rover car. Only a search warrant could authorise, and thus entitle, the police to take and search the Rover car because it was already within private premises when the police officers took control of it. Reference was made to sections 32 and 33 of the Criminal Law Consolidation (Scotland) Act 1995 and to Renton & Brown's Criminal Procedure (6th ed) paras. 7-21 and 7-26.
In our opinion, the trial judge reached a sound conclusion upon the objection as he understood it to be framed and pressed before him. As the advocate depute pointed out in his submissions before us, after the objection was repelled further evidence was given by various police officers, including Sergeant Gilfillan, and also by customs and excise officers about the search of the Rover car. That evidence was led without any further objection. Furthermore, we observe that after the Crown case closed, the submission of no case to answer on behalf of Nicolson was not based upon the proposition that the jury could not have regard to the evidence relating to the search because it had not been proved under what powers the police had taken control of the Rover car and accordingly that evidence was inadmissible. Rather it was presented on the basis of the insufficiency of the whole evidence including the evidence relating to the search of the Rover car.. No submission of no case to answer was made on behalf of Dowling. Accordingly, all the parties proceeded on the basis of the trial judge's ruling that there were powers available at the time that the Rover car was removed, which entitled those who removed it to do so and to search it thereafter.
In our opinion, it was fundamental to his ruling that the trial judge concluded that on the evidence which he had already heard, there were reasonable grounds for suspicion for the purposes of section 23(2)(b) of the Misuse of Drugs Act 1971 or section 163(1) of the Customs and Excise Management Act 1979. Section 23 of the Misuse of Drugs Act 1971 provides amongst other things as follows:
"(2) If a constable has reasonable grounds to suspect that any person is in possession of a controlled drug in contravention of this Act or of any regulations made thereunder, the constable may...
(b) search any vehicle or vessel in which the constable suspects that the
drug may be found, and for that purpose require the person in control of the vehicle or vessel to stop it...".
Similarly, in terms of section 163(1) of the Customs and Excise Management Act 1979 power is given to officers including customs and excise officers to stop and search vehicles or vessels "where there are reasonable grounds to suspect that any vehicle or vessel is or may be carrying any goods" such as controlled drugs liable to forfeiture under the customs and excise Acts. No criticism has been directed to this conclusion by counsel for either appellant. It is clear that the police were already in possession of sufficient information to enable them to apply for and obtain search warrants for other premises which, it was thought, might be the final destination of any drugs brought into this country by the appellants. Thus, it was accepted at the debate that the police had already operated their powers to obtain warrants to search for and obtain evidence at three other premises. It was not a matter of dispute that these warrants had been granted in terms of the Misuse of Drugs Act 1971. Accordingly, the reasonable grounds for suspicion had already been formed and acted upon by the police officers concerned with the whole surveillance operation. Furthermore, the police officers who were working directly in association with the customs and excise officers, had observed that Dowling was in possession of the Rover car when it was driven into the driveway at Drumshian. Customs and excise officers and police officers moved in together. There was no suggestion that the detention of Nicolson and Dowling within those premises was irregular, albeit that it took place within the curtilage of the premises. The Rover car had just been parked by Dowling and to all intents and purposes he remained in possession and control of the car. He was a person who was the subject of reasonable grounds to suspect that he was in possession of a controlled drug by virtue of his possession and control of the car. It appears to be the case that following the objection no questions were directed to the specific powers under which the police officers acted. This was not perhaps surprising since the objection was predicated upon the basis that there could never have been any powers available to the police officers to seize and remove the car at the time when they did so. In entering the premises at Drumshian the police officers and the customs and excise officers clearly had reasonable grounds for suspecting that drugs might be found within the Rover car then in the control and possession of Dowling. It is not to the point, so far as Nicolson is concerned, that the car did not belong to him. The powers of search in terms of section 23(2)(b) of the Misuse of Drugs Act 1971 (which specifically refer to the search of "any vehicle") can, in our opinion, properly be operated alongside the powers of detention under section 24 of the Criminal Law Consolidation (Scotland) Act 1995 in relation to the same person. In the circumstances of the present case, standing the manner in which the objection was presented and argued before the trial judge, there was no necessity for evidence to be led thereafter as to the matter of powers, since the basis of the objection was that the police were without any statutory powers, and could, on no view of the evidence which had been or was to be given, have had any such powers, to take and remove the Rover car unless and until a search warrant for the premises had been obtained. We note that the instructions for the Rover car's removal came from Detective Inspector Corrigan who was in charge of the detention team. He was acting separately from Detective Inspector Hefron, as the latter made clear in his evidence. Detective Inspector Corrigan stated in evidence that he had issued the instructions for the removal of the two cars to the police office "so as to allow the vehicles to be controlled by the police and subsequently searched by Her Majesty's Customs and Excise". It was suggested i
The trial judge was invited to deal with the objection on the basis of information which was not disputed as to its accuracy, although some of it had yet to be presented in evidence. It was not suggested before us that that information was either inaccurate or that it was not in accord with the evidence that was expected to be given and was in fact subsequently given in the evidence for the Crown. It was thus not such a "hypothetical" objection as appeared to be maintained for the appellants, and in particular for Dowling, in argument before us. No party to the debate before the trial judge suggested or asked for a trial within a trial. All were content to proceed upon an agreed basis of fact. In those circumstances there is no basis for the criticism of the trial judge's decision set out in the second ground of appeal stated for Dowling. Indeed, all the material information referred to in this ground of appeal was placed before the trial judge in the course of the debate on the objection.
Accordingly, we find no warrant for the suggestion that a miscarriage of justice arose from the trial judge's decision to repel the objection and to allow evidence to be led of the search of the Rover car. In doing so, we make it clear that while we were addressed on other issues, including the extent of the powers of search available to customs and excise officers or police officers under section 24(6)(b) of the Criminal Law Consolidation (Scotland) Act 1995 or to police officers at common law, it is unnecessary to deal with the submissions on these issues since they do not arise in the light of our decision and we reserve our opinion on them. Likewise, although the issue of whether any irregularity could be excused, was raised both before the trial judge and at the appeal on behalf of the Crown, in the light of our decision on the principal issue, we do not find it necessary to express any opinion on this issue.
In the whole circumstances, we shall refuse the appeal of each appellant so far as it is directed to conviction. The appeals of each in relation to sentence will be continued to a date to be fixed.