Scottish High Court of Justiciary Decisons

DEAN GLENNIE v. HER MAJESTY'S ADVOCATE [2001] ScotHC 13 (27th March, 2001)

[1] The appellant, Dean Glennie, is charged on indictment in the sheriff court at Dundee with contraventions of section 4(3)(b) and 5(2) of the Misuse of Drugs Act 1971. The first charge is in the following terms:

[2] The second charge is a charge of being in possession of a controlled drug, at the same time and place, contrary to section 5(2) of the 1971 Act, the drug being described in the same terms as in the first charge.

[3] The appellant lodged a minute in which he took a plea to the relevancy of the indictment on the ground that:

[4] The minute was repelled by the sheriff at a first diet on 27 December 2000, and the appellant has now appealed against that decision on the following ground:

[5] The offence in question is created by section 4(3)(b) of the 1971 Act which, read short, provides that it is an offence to be concerned in the unlawful supplying of a controlled drug. "Controlled drug" is defined by section 2(1)(a) of the Act as:

[6] Part I of Schedule 2 to the 1971 Act specifies Class A drugs. Paragraph 1(c) of Part I is in the following terms:

[7] In his submissions for the appellant Mr. McColl concentrated on the phrase "commonly known as 'Ecstasy'". He submitted that the word "Ecstasy" did not appear in the Schedule to the Act and that the phrase "commonly known" did not indicate by whom, in what geographical area or over what period of time, the drug in question was known as Ecstasy. "Ecstasy" is a slang name. Slang names of drugs might vary from time to time or place to place. A drug known by one name in, say, Inverness, might be known by another name in Glasgow.

[8] Mr. McColl referred to paragraph 11 of Schedule 3 to the Criminal Procedure (Scotland) Act 1995, which provides that:

[9] Mr. McColl submitted, however, that that provision did not excuse the Crown from a failure to give the accused fair notice of the charges against him. He also referred in this connection to paragraph 12 of that Schedule which provides, inter alia, that in a summary complaint the statement that an act was done in contravention of any enactment implied a statement, inter alia, that all the circumstances necessary to the contravention existed. He submitted that the specification in the present charge was inconsistent. Paragraph 1(c) referred to alternative bases for the drug and the Crown should specify which one they relied on. Ecstasy might be in one of two forms, often referred to as MDMA and MDEA, and the terms of the present indictment would allow the Crown to shift from one to the other. He submitted that this might enable the Crown to defeat a submission of no case to answer which would otherwise succeed, on the ground that they had charged one form of the drug and proved the other.

[10] Mr. McColl also referred to Sayers v. H.M. Advocate, 1982 JC 17 at p. 19 as authority for the need for adequate specification of what was alleged to be criminal.

[11] The advocate-depute in reply relied on paragraph 11 of Schedule 3 to the 1995 Act. He submitted that the charges would have been sufficiently specific if the words "commonly known as 'Ecstasy'" had been omitted. He accepted that it had formerly been the practice of the Crown to specify by their full chemical names, either MDMA or MDEA, neither of which, it may be noted, is specifically mentioned in Schedule 2 to the 1971 Act. The wording of the current indictment represented a new "house style", adopted at least in part, he suggested, because of the difficulty in reading chemical terms such as "methylenedioxymethylamphetamine" to juries.

[12] Leaving aside the question whether or not difficulty in reading out particular words to a jury is an adequate reason for changing the wording of a charge, we are satisfied that the advocate-depute's submission is correct. The charges in this case are clearly in accord with the requirements of paragraph 11 of Schedule 3 to the 1995 Act. In each of them the reference to Ecstasy is unnecessary to render the charge relevant. If anything, the addition of the phrase is helpful to the defence, since it gives them some additional information as to the identity of the drug in question, and that the Crown may be intending to lead evidence that the drug was in fact commonly known as Ecstasy.

[13] We accept that mere adherence to the requirements of paragraph 11 may not always be enough to provide an accused with fair notice of the charge, but, in our view, it cannot be said that in this case there is anything unfair in, or that any prejudice may be caused to the accused by, the absence of any recital of paragraph 1(c) of the 1971 Act or any part thereof in the two charges. What the Crown have to prove is that the substance concerned was a Class A drug, and it is clear that they propose to do so by showing that it came within paragraph 1(c) of the Schedule.