APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Lord Cameron of Lochbroom
Lord Nimmo Smith
Appeal No: C26/99
OPINION OF THE COURT
delivered by THE LORD JUSTICE CLERK
NOTE OF APPEAL AGAINST CONVICTION
HER MAJESTY'S ADVOCATE
Appellant: McMenamin, Q.C., Shead; Russell & Aitken
Respondent: Ms. J. Johnston, A.D.; Crown Agent
28 November 2001
 The appellant stood trial in the High Court along with three co-accused, James McGing, Paul William Muldoon and Katherine Phyllis Callaghan, the appellant's sister. The charge with which they were accused was that between 5 March and 5 June 1998 at various places in Scotland and England they were concerned in the supplying of diamorphine, in contravention of section 4(3)(b) of the Misuse of Drugs Act 1971. At the end of the Crown case Muldoon was acquitted. Thereafter all of the other accused were convicted. The appellant was sentenced to six years' imprisonment, backdated to 24 September 1998. The Crown appealed against his sentence, which was later increased to ten years.
 The main evidence against the appellant and the co-accused who were convicted along with him related to a surveillance operation by Customs & Excise officers and police officers at Charnock Richard Motorway Services on 5 June 1998. This service station was situated beside the M6 motorway in Lancashire.
 A Customs & Excise officer, Anthony Webb, gave evidence that he saw the appellant arriving at the service station in a Lexus motor car and parking it there. He watched his actions in the rear view mirror of his own vehicle. Almost immediately after his arrival the appellant left his motor car, taking a black rucksack over to the Vauxhall Cavalier motor car of his sister where he handed it to her through the front passenger window which was half open. Her two children were also in the car. Mr. Webb said that he made a mental note of events as they happened, and made a written note directly after he ceased his observations. He also said that the appellant, after going back to his own car, returned to the Vauxhall Cavalier and handed a gold-coloured gift bag to her through the same window. The three police officers, who were seconded to the Scottish Crime Squad, were maintaining observations from an elevated position which was closer to the appellant than that of Mr. Webb. They gave evidence that the appellant's vehicle had arrived at the service station in what looked like a convoy with his sister's car. The appellant had been under surveillance by them from the time when he arrived at the service station. They had watched him throughout the time when he was there. They said that they had not seen him with a black rucksack. After arriving at the service station the appellant had left his vehicle and gone to that of his sister, carrying a gold coloured gift bag which he handed to her through the half open window of her car. This was shown in a photograph taken by a police photographer. Shortly thereafter McGing drove an Astra motor car into the car park. Although there were other spaces available he parked his car next to the appellant's. Having got out of his car he had a conversation with the appellant and went into the service station building with him. The appellant's sister also left her car and went into the building. After a short time she emerged again and returned to sit in her car. Thereafter she was approached by McGing and was seen to hand a black rucksack to him through the front passenger door window. He placed it in his own car and drove off, heading towards Glasgow where he lived.
 McGing was followed by police officers who stopped him south of Abington on the M74 motorway. The black rucksack was found in the boot. On examination it was found to contain ten packages of powder containing diamorphine, each weighing a half kg. On the basis of its being divided into £10 deals, the powder represented a street value of about £663,330. The gift bag was recovered from the vehicle of the appellant's sister and was found to contain a bottle of brandy, or a similar drink, and some chocolates.
 The Crown also led evidence of a search on 22 September 1998 at a house occupied by the appellant at an address in Liverpool. In a bedroom used by him several pieces of paper were found. A police witness, Detective Constable Joseph Conoboy, gave evidence that on one of these pieces of paper (Production 17) the figure 14965 could represent the purchase price in pounds sterling of a half kg. of diamorphine, and that a figure of 2470 could be the purchase price for two ounces of diamorphine.
 No evidence was led for the appellant. McGing gave evidence on his own behalf, in which he admitted that the rucksack had been in the boot of his car when it was stopped. He said that he had put it there in the car park of the service station, and claimed that he had picked it up as a favour for a friend as he was going to Liverpool. He thought that the rucksack contained vitamins. He had been paid £20 for his trouble. The appellant's sister gave evidence that she had taken the rucksack to the service station and given it to McGing there. She said that it belonged to her boyfriend who had left it at her house. She had arranged with him that she would take it to the service station and give it to someone who would come to collect it. She said that she did not know what was in it.
 When addressing the jury the Advocate depute made it clear that the Crown case was not dependent upon whether the jury believed the evidence of Mr. Webb. He pointed to the evidence given by the police officers that the appellant had arrived at the service station with his sister as if they were travelling in convoy. He suggested that McGing had deliberately parked his car beside that of the appellant. The police officers had given evidence that the appellant, after getting out of his car, had made his way to his sister's car where he passed the gift bag through the front passenger window. They had then seen him hanging round at the rear of his own car. Shortly thereafter McGing arrived at the service station. He then had a conversation with the appellant near the appellant's car, after which they went together into the service station. Shortly after the appellant's sister went back to her car McGing was seen near it. Accordingly the evidence given by the police officers demonstrated that within a very short period of time quite a lot of "coming and going" between the appellant, his sister and McGing.
 In presenting the appellant's appeal against conviction Miss McMenamin did not dispute that there was sufficient evidence to entitle the jury to convict the appellant of an offence against section 4(3)(b) of the 1971 Act. However, she submitted that there was insufficient evidence to entitle the jury to convict to the extent of the full terms of the libel. The trial judge should have directed the jury that, if they were to convict, their conviction should be restricted to 5 June 1998 and to such of the places mentioned in the libel as had been the scene of any activity on the part of the appellant.
 In our view this ground of appeal is misconceived. As the Advocate depute pointed out, using the decision in Santini v. H.M. Advocate 2000 S.C.C.R. 726 as an example of a similar approach, the jury were entitled to infer from the nature of the activity that the appellant was not involved on some sort of casual basis on 5 June 1998 but must also have been involved at an earlier stage. This could be supported by the recovery of the piece of paper from his bedroom which they were entitled to regard as containing details of transactions in diamorphine. As regards the other places mentioned in the charge, if the jury accepted, as they were entitled to do, that the appellant was involved with his co-accused, they were entitled to deliver a verdict in accordance with the full terms of the libel.
 Miss McMenamin also submitted that the trial judge had misdirected the jury in regard to what the Crown required to establish. In Salmon v. H.M. Advocate; Moore v. H.M. Advocate 1998 S.C.C.R. 740 the court held that in cases under section 4(3) the Crown must establish that the accused knew that he was involved in supplying something and must prove that the thing he was concerned in supplying was the controlled drug libelled in the charge (see, e.g., the Lord Justice General (Rodger) at page 757). In the present case, Miss McMenamin submitted, the trial judge's charge had been deficient in regard to the first of these requirements. In dealing with the offence of being concerned in the supplying of a controlled drug the trial judge stated (at page 11 of his charge):
"Now, those words, ladies and gentlemen, are simply to be given their ordinary meaning. Supplying of drugs is simply the transfer thereof from one person to another, whether for profit or not. Being concerned in the supplying is simply taking some active part, having some involvement at whatever stage and however small in the process of drugs being so transferred. It is not necessary - although in this case it may not matter - but it is not necessary for the Crown to prove that any actual supply from one person to another was taking place or was about to take place or had taken place, it is enough that the Crown proves to your satisfaction that the accused was involved to the extent to which I have indicated".
Miss McMenamin pointed out that in the present case the Crown case had been that the rucksack already contained the drugs when it arrived at the service station. However, there was no evidence that it appeared to be heavy. There was nothing to counter any suggestion that the drugs were already in the Vauxhall Cavalier car awaiting a suitable receptacle. On any view the rucksack was in the car for some minutes.
 We are in no doubt that the directions given by the trial judge were inadequate as a statement of what the Crown required to prove as a matter of law. They failed to spell out that the Crown had to establish that the appellant knew that he was involved in supplying something. On the other hand it is important to bear in mind that the present case was not one in which, on the Crown case, the accused person was remote from the drugs to which the charge related. Whether or not the evidence of Mr. Webb was accepted, the Crown relied on evidence that the appellant was knowingly involved in the supplying of the rucksack and its contents. It followed that if he was convicted it was on the basis of evidence which satisfied the test outlined by the court in Salmon v. H.M. Advocate and Moore v. H.M. Advocate. There was no half-way-house. For these reasons we consider that the misdirection by the trial judge did not result in a miscarriage of justice.
 Miss McMenamin went on to advance a further criticism of the trial judge's charge. Having explained to the jury that, in the case of the co-accused McGing and Callaghan, they required to consider whether each of them knew or suspected or had reason to suspect that what was in the bag was controlled drugs - in other words their defence under section 28 of the 1971 Act - he went on to refer to the appellant as follows:
"As regards the second accused, his position, as stated by Mr. Small, is that there is insufficient evidence for you to be satisfied beyond reasonable doubt that he was concerned in supplying at all".
Having informed the jury that he did not intend to say more about the evidence he continued:
"I can direct you that there is sufficient evidence in law for you to convict but it is entirely a matter for you to consider whether the evidence is sufficiently compelling for you to be satisfied beyond reasonable doubt, and it is entirely a matter for you to consider whether the defence of lack of knowledge or suspicion has been made out".
The latter words were plainly a reference to the position of the co-accused McGing and Callaghan. Miss McMenamin complained that the trial judge had, in effect, invited the jury to disregard what Mr. Small had said on behalf of the appellant.
 The trial judge's use of the word "insufficient" in regard to the submission which had been made by Mr. Small was certainly unfortunate. However, it is reasonably plain that Mr. Small's speech to the jury was concerned with whether the evidence was sufficiently compelling to exclude any reasonable doubt as to the guilt of the accused, whereas the direction which the trial judge gave to the jury that there was sufficient evidence was concerned with legal sufficiency. For this reason we do not consider that the trial judge misdirected the jury in this respect.
 Miss McMenamin then went on to submit that a miscarriage of justice had occurred on the ground that the appellant's defence had not been properly presented to the jury. Her submissions were presented under three headings.
 The first was that the defence had failed to investigate and elicit evidence relating to the actions of another Customs & Excise officer, Christopher Lee, who apparently was seated beside Mr. Webb. In response to enquiries which had been made on behalf of the appellant following his conviction, Customs & Excise had provided conflicting explanations about what Mr. Lee had been doing during the time when Mr. Webb was making his observations. He had been provided with a video cassette recorder, but he had not used it in order to film the activities of the three accused, either because the recorder was defective or because he did not know how to operate it. It appeared that those representing the appellant at the trial were aware that other Customs & Excise officers were present at the service station, and that these included Mr. Lee, but that they did not realise that he had been seated beside Mr. Webb. It was clear that the Customs & Excise officers had been working together in pairs. Had the appellant's defence been properly investigated, Mr. Lee would have been precognosced and the fact that he had a video cassette recorder would have become known. The fact that no film footage had been taken by him could well have been regarded by the jury as being of significance in assessing the credibility of witnesses, particularly when the photographs taken by the police and their observation log did not show any contact between the appellant and the black rucksack. Miss McMenamin submitted that the point should have been made that, even if Mr. Lee had been unable to film the scene, he should have been able to adopt some means of observing what was happening without attracting attention to himself.
 We do not consider that the absence of any reference to the presence and actions of Mr. Lee is of any substance. Quite apart from what he should or might have done the defence were able to exploit the fact that there was a clear inconsistency between the evidence of Mr. Webb and that of the police officers, and the fact that the photographs taken by the police, together with the log kept by them, did not support, but tended to contradict, the evidence given by Mr. Webb. For these reasons we are not satisfied that in this respect the appellant's defence was not properly put before the jury.
 The second matter founded upon by Miss McMenamin related to the pieces of paper which had been recovered from the appellant's house on 22 September 1998. She submitted first, that his counsel should have objected to evidence as to their recovery in respect that the date on which they were recovered fell outside the period covered by the libel. The writing on them was undated and hence it could not be said that they had been written within that period. The Crown had made no motion to amend that period. For this purpose she did not require to satisfy the court that if such a motion had been made the amendment would have been allowed. Next, the defender's legal representatives at the trial had failed to carry out his instructions to instruct a handwriting expert. His specific instructions were that he knew nothing about these pieces of paper. She drew attention to the fact that a report which had been obtained from a handwriting expert after the appellant's conviction stated that there were sufficient fundamental differences between parts of the writing and the handwriting of the appellant to establish that he was not the author of those parts. Lastly, Miss McMenamin criticised the fact that the defence had not sought to challenge Detective Constable Conoboy's interpretation of the writing that Production 17 was a tick list.
 We are not convinced that the proper defence of the appellant required that objection should have been taken to the evidence relating to the pieces of paper on the ground that the date when they were recovered lay outside the period in the libel. The Crown were entitled to invite the jury to regard what was written on Production 17 as providing additional evidence of the past involvement of the appellant with diamorphine during the period covered by the libel. As regards the authorship of the writing, we note that the solicitors who represented the appellant at the trial have informed the court that he did not raise the question of a forensic examination of the piece of paper before or during the trial. No such question came to the knowledge of his counsel. However, we do not require to reach a view on this disputed point. The contention for the Crown was that the piece of paper demonstrated the appellant's involvement with diamorphine regardless of who was its author. The appellant's stated position, as he and his legal representatives knew, was that he knew nothing about the piece of paper and had never seen it before. To pursue the question of whether the writing was that of the appellant would not have squarely addressed the Crown case. As regards the interpretation of Production 17, we note that counsel who appeared for the appellant at the trial has stated to the court that, in light of his instructions, cross-examination of Detective Constable Conoboy was deliberately restricted to a minimum. This was on the basis that it was anticipated that there would be evidence that there were other occupants of the house. Counsel also has pointed out that at the trial the Crown attached little significance to the evidence relating to the pieces of paper. The main thrust of their case was directed to the evidence relating to the events at the service station. We bear in mind that for the purposes of this appeal a report has been obtained from another expert which would challenge the evidence given by Detective Constable Conoboy. However, it seems to us that the question whether the interpretation of the writing should have been challenged at the trial was essentially a matter for the discretion of counsel in making tactical decisions as to the deployment of the appellant's defence. We are not persuaded that in any of these respects there was a failure to present his defence properly.
 Thirdly, Miss McMenamin criticised the conduct of the appellant's defence in regard to evidence which had been led as to meetings between the appellant and his former co-accused Muldoon on 26 June and 5 September 1998. The defence had failed to object to evidence relating to these meetings even though they were outwith the period of the libel. Further, following the acquittal of Muldoon, the appellant's agents failed to precognosce him with a view to calling him as a witness in order to explain why he had met the appellant on these occasions.
 We consider that there is no substance in these points. At the time when the evidence relating to these meetings was led, it could have lent support to the Crown case that the appellant was involved with Muldoon as well as others in the supplying of controlled drugs within the period of the libel. The Advocate depute pointed out that the evidence in regard to these meetings was in itself innocuous. Following the acquittal of Muldoon there was, in our view, little to be said for pursuing the explanation for them. In any event, as counsel then representing the appellants has pointed out, there was a risk that to lead evidence relating to them could be prejudicial to the appellant. It appears that the explanation for the meetings was that the appellant was to be introduced to a relative of Muldoon in regard to a possible business transaction. That relative was serving a long period of imprisonment for drug offences. At best for the appellant the question whether any evidence should be led to explain these meetings was a matter for tactical decision in the course of the defence of the appellant.
 For these reasons we consider that the appellant suffered no miscarriage of justice. His appeal against conviction is accordingly refused.