Scottish High Court of Justiciary Decisons

KEVIN GLANCY v. HER MAJESTY'S ADVOCATE [2001] ScotHC 27 (4th May, 2001)

[1] On 6 July 2000 the appellant was convicted, by a majority verdict of the jury, of two charges of contravention of section 4(3)(b) of the Misuse of Drugs Act 1971. Those were charges 2 and 4 on the indictment against him. Charge 2 was a charge of being concerned in the supplying of diamorphine at an address in Glasgow between 16 February 1998 and 14 May 1998. Charge 4 was a charge of being concerned in the supply of ecstasy between the same dates and at the same address. The ground of appeal is that the trial judge misdirected the jury in regard to the meaning of being concerned in the supply of drugs and, more particularly, in regard to the appellant's defence to the charges. It is, however, necessary to explain what the evidence before the jury was, before looking at the terms of the charge.

[2] Despite the latitude of the charge, the evidence all related to events on 14 May 1998. The appellant was arrested on that date and, after various procedures, a search warrant was obtained for his home, a flat at 78 Minard Road. Police officers then took the appellant to the flat and opened the door with his keys. There was a piece of paper at the door which showed the name "Glancy" but there might or might not have been other names on the paper. The appellant was taken to a front bedroom, which he identified as being his room. There was also, in the flat, a front living room with a bay window which, according to the police evidence, showed some signs of being occupied, in that for example, there was clothing strewn about in it. There was evidence from a director of the property letting company who were the owners of the flat to the effect that there were three rooms comprised in the flat and that these rooms were leased to individuals. According to her evidence, the front living room had been let to a man named Gary Gibson. According to the police evidence, a roll of clingfilm was found behind a bed settee in the front living room, with regard to which the appellant commented "That's nothing to do with me". A roll of clingfilm was also found inside the wardrobe and, according to the police, the appellant said "That's to make up bags". The appellant, who gave evidence, denied making that statement. Again, a stained Stanley knife blade was found in the wardrobe and, according to the police, the appellant said "It's for cutting up kit into bags", while the appellant denied making any reference to bags. A wall mirror with staining on it was also found. The appellant was asked "What's on the mirror?" and replied "Kit. I use that for cutting up". Clingfilm and a Stanley knife blade were also found in the kitchenette and again, according to the police, the appellant admitted that the clingfilm was for making up bags and said that the blade was used for cutting up while the appellant admitted saying the blade had been used for cutting up but denied that he had said anything in relation to bags.

[3] After that search, the appellant was taken to a police station but was later brought back to the house, after he had told the police that he was willing to point out an additional quantity of drugs. There was evidence from a police officer that on the second search the appellant was asked if there were any other controlled drugs in the house and replied "Aye there's some smack and maybe some eccys". The appellant denied making that reply. The appellant did, however, lean out of the window in the front living room and point to a position behind a rhone pipe. A police office lent out the window and was able to reach the rhone pipe, which had ivy growing on it, but could not find any drugs. The appellant was asked to try to reach the rhone pipe and recover the item there. He did so, and brought in a plastic bag which contained a blue polythene bag containing a piece of heavy resin and powder which turned out to be diamorphine. The appellant was asked what it was and said "Kit". Later the appellant was interviewed and described how he had shown the location of the heroin to the officers. He told the interviewing officers that the approximate weight of the heroin was about 21/2 ounces but said that the drugs were not his and that he did not know whose they were. He declined to explain how he had known the drugs were there. Later, however, he said that he had seen a person putting them there when he was at the shops, but that he was not too sure who it was.

[4] There was further police evidence that the appellant was asked "where are the eccies" and replied "in the back bedroom, under the floor" and that he pointed out a particular area of flooring, under which the police found 12 ecstasy tablets. The appellant denied that he had made that reply and also denied that he had pointed out any area of the floor. His defence to the charge relating to the ecstasy tablets was that he had no knowledge of their presence at all. It was also maintained on his behalf that the quantity was, in any event, consistent with personal use. There was evidence that the back bedroom in which the tablets were found appeared to be unoccupied.

[5] It is clear that, if the jury accepted all the police evidence, there was ample evidence before them on which they would be entitled to hold that the appellant was concerned in the supplying of the heroin and the ecstasy found. In his evidence, however, as we have noted, the appellant denied making any of the admissions spoken to by the police officers in relation to the use of the clingfilm to make bags or the use of a knife or knives and a mirror to cut up drugs for putting in bags. He denied any involvement in the supply of drugs and any knowledge of the presence of the ecstasy tablets. He explained that he would cut up heroin for his own use on the mirror, with a knife blade, to avoid losing any of the drug, and that he might use clingfilm to wrap up his own drugs. He said that he had seen his brother, who was a known drug dealer, placing the bag in the position behind the rhone pipe to which he had drawn the attention of the police. He explained what he had said in his interview by saying that, when the bag had been opened, he had known at once what was in it and that he had been able to estimate the weight from seeing the contents of the bag.

[6] In directing the jury, the judge began by giving standard directions as to the assessment of evidence and the need to proceed upon evidence and went on to direct that the onus of proof lay on the Crown. In doing so she said:

[7] She then explained the meaning of reasonable doubt to the jury and finished that part of the charge by saying:

[8] The judge went on to explain the provisions of the 1971 Act in relation to controlled drugs and to say that the offence of being concerned in the supply of drugs extended to a great variety of activities including couriers, go-betweens, lookouts, providers of safe houses and so on. She then said:

[9] The judge then explained that there was a joint minute which agreed that the labels produced, that is the items which had been found, were, respectively, heroin and ecstasy and went on to say that there was a further requirement on the Crown and continued:

[10] The judge went on to explain section 28 in more detail. She told the jury that they must first consider whether the Crown had proved that the items found were the illegal drugs charged. She then said:

The judge invited the jury to consider all the evidence and submissions and repeated that the jury must consider whether they were satisfied that the appellant knew, for example, that he was allowing himself or his home to be used in some way which assisted a drug dealer in illegal activities. She then referred again to section 28 before proceeding to complete the charge with further directions, including directions as to verdicts.

[11] In the grounds of appeal two issues were raised. Firstly, it was suggested that the judge had failed to explain adequately what was covered by being concerned in the supply of illegal drugs. The second ground was that the judge had misdirected the jury in regard to the appellant's defence which included incrimination of his brother as being the person concerned in the supply of the drugs which were recovered. As the appeal was argued before us, however, the emphasis was very much on the second ground of appeal and it was accepted that, but for the questions raised by the second ground, no substantial objection could have been taken to the terms in which the judge explained the concept of being concerned in the supply of drugs. What was submitted was that the judge had misled the jury by directing their attention to section 28 of the 1971 Act which was not, and could not be, in any way in issue in this particular case, and by failing to draw their attention to the appellant's real defence. That defence was that he was not involved in any way with any of these drugs and that, while he had seen his brother place an object which he believed, or suspected, to be controlled drugs in the position in which the heroin was found, he could be regarded as, in effect, a "spectator" who had not allowed or permitted anything to happen which he was able to prevent or otherwise involved himself in the matter of supply. In this context, it was submitted that it was of considerable importance that the appellant had, in his evidence, admitted using items found in the house for preparing drugs for his own use but had denied being in any way involved in the supply of drugs or making any admissions which might infer that he had been so involved. It was not enough that the appellant had known of the presence of the drugs behind the rhone pipe in order to make him responsible on the basis of being concerned in supply of them. It was necessary for the Crown to prove some actual involvement. There was no question of the appellant allowing anything to happen since he had no control over the place in which the drugs were found. The front living room, had been let to Gibson, although it was accepted that all those in the flat had access to it. By drawing the jury's attention to section 28 and to the need for the appellant to prove something, albeit on the balance of probabilities, the judge had directed the jury's attention away from the real question before them and directed them in a way which was liable to mislead them as to the proper approach to the appellant's real defence.

[12] The advocate depute accepted that reference to section 28 had been inappropriate in this case. No mention had been made of section 28 either by the advocate depute at the trial or by the defence and it was accepted that the appellant's own position in his evidence negatived any defence under section 28. He therefore accepted that the judge did not home in on the actual evidence and the actual defence put forward by the appellant. Nevertheless, the judge had adequately explained what was meant by being concerned in the supply of drugs. On the evidence, the jury had been entitled to find that the appellant was so concerned. The judge had drawn to the jury's attention the need to be satisfied beyond reasonable doubt that the appellant was concerned in the supply of drugs and that involved a positive involvement with the drugs. If the judge had directed the jury that the only issue was an issue arising under section 28 that would have been a misdirection but, the advocate depute submitted, that was not in fact what had been done.

[13] Two things are plain about this appeal. One is that there was quite sufficient evidence to entitle the jury to convict the appellant of being concerned in the supplying of drugs and that the charge included directions as to the essentials of that crime which, had they stood alone, would have been adequate. The second is that section 28 of the 1971 Act was of no relevance to the situation that had arisen in the trial. Section 28 may come into play when there is an issue in the case as to whether the Crown have proved that the accused had sufficient knowledge of the nature of a substance found in his possession, or under his control, or with which he was in some way concerned, to justify a conviction under the 1971 Act. Before the Crown can found on section 28, they must first prove that the accused did have possession or control of, or that he was in some way concerned with the substance in question. The accused's defence in this case was directed to that first issue: he maintained that he did not have control of, and was not concerned with, the drugs which were the subject matter of the two charges of which he was convicted. As the advocate depute accepted, therefore, there was no issue under section 28.

[14] The question in this appeal is whether the introduction of section 28 in the charge has so prejudiced the presentation of the appellant's defence as to amount to a misdirection. We have come to the conclusion that it has. The sections of the charge which refer to and explain section 28 all tend to point the jury towards the issue of the appellant's knowledge. Even in the passage, quoted above, in which the judge deals with what she describes as stage two of the jury's consideration she puts the question as being whether it was proved that the appellant knew that he was involved in drug dealing rather than whether it was proved that he was in fact involved in supplying the item in question. All the emphasis is on whether the accused has established that he was unaware that the substances in question were illicit drugs and there is no reference to the substantive defence that, albeit he knew what was going on, the accused himself had no part in the supply operation. In short there is, we think, a real risk that the directions in relation to section 28 may have materially misled the jury as to the real question which they had to decide. That amounts to a misdirection which is, in our view, sufficiently serious to amount to a miscarriage of justice. In these circumstances, therefore, the appeal must succeed and the verdicts must be quashed.

[15] The advocate depute moved for authority to raise a fresh prosecution in the event of the appeal succeeding. That was opposed on the ground of the age of the charges and it was drawn to our attention that the appellant had been in custody from 12 July 2000, the date of the verdict until November 2000 and had served the equivalent of a nine month sentence as a result. The offences occurred, allegedly, in May 1998 and we have come to the view that, notwithstanding the fact that the Crown were not responsible for the error which has led to the verdict being quashed, this is a case in which authority for a fresh prosecution should not be granted. It may be added that the circumstances of the original offence, previously narrated, show that the appellant did assist the police to recover a quantity of heroin which they would very probably not have discovered without his assistance.