Scottish High Court of Justiciary Decisons

RICHARD McCUTCHEON v. HER MAJESTY'S ADVOCATE [2001] ScotHC 30 (11th May, 2001)

[1] On 26 May 2000 at Alloa Sheriff Court the appellant was convicted, after trial, of charge 7 in an indictment, which was in the following terms:

In his brief report to us, the sheriff has referred to his charge to the jury for a summary of the evidence adduced by the Crown in the course of the trial. From this it appears that on 25 March 1999 police officers, in possession of a search warrant, went to the appellant's house at 25 Newmills, Tullibody and conducted a search of the premises. Under the settee in the livingroom they found label 2, a bag with brown powder in it, label 3, a bag with eight paper wraps in it, and label 4, a tube. By joint minute it was agreed that label 2 was a knotted part plastic bag containing a quantity of brown powder weighing 2.956 grams which, on analysis, was found to contain diamorphine to the extent of 47%. Label 3 was a plastic bag and eight paper packages, each containing a quantity of brown powder, the weights of which varied from 0.034 grams to 0.051 grams, the total weight being 0.328 grams. On analysis, three of the powders, selected at random, were found to contain diamorphine to the extent of 68% on average. Label 4 was a piece of silver coloured metal foil rolled into a tube. A brown residue adhered to the surface and on analysis was found to contain diamorphine. While the police officers were at the house, two telephone calls were made to it. The caller told the police officer who answered that he was looking for some gear. The police officer told him to come up. When the caller arrived he said that he was looking for a tenner bag. By the joint minute it was also agreed that the appellant was in receipt of job seekers' allowance from 24 December 1998 to 25 March 1999, payable at £58 to £35 per week, and that he had not been in receipt of social fund payment during that period.

[2] On 25 March 1999 the appellant was interviewed at the police office in Alloa. A transcript of the interview was before the jury. In the course of it the appellant admitted that the diamorphine (heroin) was his. He explained that he was a heroin user with a habit of about a gram a day, which he smoked, using the tube. He said that he would pay £200 for 31/2 grams, so that his habit cost him about £400 a week. He had been using heroin for about two months. He gave no account of how he found the money to pay for it, beyond stating, in answer to a question about how he paid for the quantity found by the police, that he had money put by for his birthday. He denied selling the drug to others. He said that some of it had been put into the eight wraps so that he knew what he was taking every day. A Detective Constable with experience in the Drug Squad gave evidence that in his opinion the 2.956 grams in the bag, label 2, was an underweight 3.5 grams deal, called an "eighth" deal. This would cost about £175 to £200 and when broken down into £10 wraps could be sold for about £550, thus yielding a good profit. Some drug dealers financed their habit by dealing in drugs in this way. The eight wraps in label 3 were, in his opinion, from a different batch of heroin from that in label 2. Looked at together, these represented, in his opinion, a quantity of heroin used for dealing purposes. This was particularly so if the possessor was of limited financial means. In his experience heroin users did not regulate their use of the drug by breaking it up into wraps.

[3] We should mention, briefly, that the appellant gave evidence to the effect that the heroin was for his own use. He financed his addiction with £200 given to him for his birthday and by stealing from his mother, obtaining money from his sister and girlfriend and doing odd jobs to raise money. His sister gave some evidence supportive of this. An expert witness from the Edinburgh Drugs Advice Centre gave evidence that it was cheaper for heroin users to buy it in bulk and he himself advised bulk buyers to subdivide their supplies to single dose levels in the interests of safety. In the present case, he was of the opinion that all the heroin found in the appellant's house came from a single source, and that it was consistent with personal use. By their verdict the jury rejected the defence evidence that the drug found by the police was for personal use.

[4] In the course of his charge the sheriff directed the jury to delete the passage in charge 7 from "in particular" to "c/o Central Scotland Police". The jury returned a verdict of guilty of the charge, which was recorded, without further comment, as a verdict of guilty of the charge as libelled and without the deletion which the sheriff had directed should be made.

[5] The Note of Appeal against conviction sets out five grounds, of which Mr. Wheatley, who appeared for the appellant today, sought only to argue grounds 3 and 4. Ground 3 is to the effect that the sheriff erred in allowing the charge to go to the jury because, while there may have been evidence available to entitle them to convict the appellant of possession with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act, there was not sufficient evidence to justify a conviction of being concerned in the supply of a controlled drug, contrary to section 4(3)(b). Ground 4 is to the effect that the verdict of the jury was perverse and inconsistent with the directions given by the sheriff, in that they returned a verdict of guilty as originally libelled, without making the deletion which the sheriff had directed them to make. Mr. Wheatley developed ground 3 by explaining that he did not dispute that there was evidence which would have supported a charge under section 5(3). Where there was evidence of actual possession of a quantity of a controlled drug which the possessor intended to supply, that was the appropriate charge. There might be some overlap between the circumstances in which a charge under section 5(3) and those in which one under section 4(3)(b) would be appropriate, but there must be some dividing line, because the different offences provided by the Misuse of Drugs Act must be there for specific purposes. Reference was made to a passage in the Opinion of the Lord Justice General in Salmon v. H.M. Advocate; Moore v. H.M. Advocate 1998 S.C.C.R. 740 at p. 762D, where his Lordship said, in the circumstances of that case, that he had difficulty in understanding why the Crown chose to charge the accused with a contravention of section 4(3)(b), when the facts suggested that the men would have been more appropriately charged with being in possession with intent to supply in terms of section 5(3). By forcing these particular facts into a section 4(3)(b) charge, the Crown ran the risk of distorting the application of the legislation. When pressed about his submission that, where the facts would support a charge under section 5(3), a charge under section 4(3)(b) would be excluded, Mr. Wheatley submitted that Kerr v. H.M. Advocate 1986 J.C. 41 was wrong in its interpretation of the latter provision. He did not, however, elaborate this submission. He accepted that if there was any other evidence than that of the quantities of drug found in the appellant's possession, his argument would not stand.

[6] In reply to these submissions, the advocate depute referred to the fact that there had been two quantities of the drug, one subdivided, and to the evidence that they came from different batches. He referred to the agreement in the joint minute about the appellant's means, and the evidence that some drug users would finance their habits by dealing in drugs. He also referred to the other circumstances which we have already set out in the foregoing narrative. Here, therefore, there was more than simple possession of the drug with intent to supply it. He submitted that the financial evidence was most compelling: it all suggested that the appellant had been concerned in dealing in the drug prior to the police search.

[7] In the course of his submissions the advocate depute referred to the decision of this court in Cochrane v. H.M. Advocate 13 May 1999, unreported, to which reference was also made before the sheriff. In that case there was a submission, in respect of evidence not dissimilar to that in the present case, that the evidence could not support conviction of a charge under section 4(3)(b) because sections 5(3) and 4(3)(b) were, on a proper construction, mutually exclusive; while section 4(3)(b) had a wide application, it was not intended to be used as a catch-all, but to fill the gaps covered by other offences, and to cover activities which took place over a period. The court held that the submission in relation to the scope for the use of section 4(3)(b) sought to raise a matter of some substance, but one which was not a live issue on the evidence before the jury. Even if the submission as to the distinction between the two provisions was correct, the evidence extended significantly beyond possession with intent to supply, and accordingly the jury were on any view entitled to convict the appellant of a contravention of section 4(3)(b).

[8] In our opinion in the present case the same approach should be followed as in Cochrane. Not only was there evidence in respect of the quantities and packaging of the drug. There was, in addition, the evidence about the appellant's own drug habit and the lack of any apparent means to pay for it out of his own legitimate resources. From all of this evidence the jury were entitled to infer that during the period covered by the libel he was funding his own habit by being involved in some way in supplying drugs to others at a profit. On any view of the matter this was sufficient to bring the case within the terms of section 4(3)(b). We express no opinion on the relationship between this provision and others of the 1971 Act, particularly section 5(3), and on the correctness of the decision in Kerr, because the evidence in the present case does not raise a live issue about the scope of section 4(3)(b).

[9] It was accepted by the sheriff in his report, and was not disputed before us, that the verdict of the jury erroneously failed to delete, as directed by the sheriff, the words "and in particular on two occasions between said dates you did at 25 Newmills, aforesaid and in the street known as Newmills, Tullibody supply Diamorphine to Brian Robert Ballantyne, c/o Central Scotland Police" in charge 7. In these circumstances, and for the reasons we have given, we shall allow the appeal, but only to the extent of deleting these words from the charge.

[10] We turn now to the appeal against sentence. In addition to being convicted of charge 7, the appellant pled guilty to charges 1, 2 and 5 in the indictment. All of these charges related to an incident on 24 February 1999 at an address in Tullibody. Charge 1 libelled that the appellant assaulted Celia Flanagan by repeatedly punching and kicking her on the head and body to her injury. Charge 2 related to an assault on Margaret Cushingham by repeatedly punching and kicking her on the head and body to her severe injury, and charge 5 related to reckless damage to two doors of the house and various items of property within it. The sheriff was informed that the house in question was that of a former girlfriend of the appellant, the complainer in charge 1. The relationship between them had come to an end. During the afternoon the appellant called at the house and was allowed entry. He appeared to be under the influence of something. He asked for some items of property, which were handed to him. He then became more aggressive. Celia Flanagan went to her bedroom, but the appellant forced his way in, causing her to fall backwards onto the bed. He then straddled her and punched her about the head and body and kicked her on the legs. Celia Flanagan's mother, Margaret Cushingham, was downstairs. When she heard what was going on she went up and saw the appellant assaulting her daughter. She ran downstairs and telephoned the police. The appellant came downstairs shortly afterwards and there was an altercation between him and Margaret Cushingham. The appellant then assaulted her by kicking her on the leg and punching her about the head and body. She curled up to try to protect herself, leaving one of her legs exposed. The appellant repeatedly kicked it and in particular the heel. The assaulted lasted for several minutes. Both women were taken to hospital. Margaret Cushingham was found to have three fractures in her left wrist which required to be manipulated with wires. She had a broken left heel bone which was put in plaster and she had a broken nose. She complained of being sore all over the body and legs and her head. Celia Flanagan was less seriously injured. She had tenderness and soreness to various parts of her body.

[11] The sheriff sentenced the appellant to imprisonment for 12 months on charges 1, 2 and 5 and six months on charge 7, the sentences to be consecutive. Although he does not say so in his report, he had before him a schedule of the appellant's previous convictions, which included six charges of assault, and, because the appellant had not previously served a custodial sentence, a social enquiry report . In presenting the appeal against sentence, Mr. Wheatley did not take issue with the sentence in respect of charge 7 or with its being made consecutive to the sentence on the other charges. He did, however, submit that the 12 month sentence was excessive. The appellant was very much under the influence of drugs. This was a "domestic" incident. He said that this was an explanation, not an argument that a domestic incident was less serious.

[12] In our opinion there can be no criticism of the sentence imposed in respect of charges 1, 2 and 5. Charges 1 and 2 both related to relatively sustained assaults on women in what should have been the security of their house. The assault on Margaret Cushingham in particular was a serious one, which resulted in several fractures. The appellant has previous convictions for assaults. The sentence imposed by the sheriff was by no means excessive. The appeal against sentence accordingly fails.

[13] We would take this opportunity to observe that the sheriff's report is conspicuous for its brevity and has provided us with very little assistance. We have had to put together the information which is contained in this Opinion from other documents. The duties of a trial judge in furnishing a report are set out in section 113(1) of the Criminal Procedure (Scotland) Act 1995, and have been commented on in such cases as Vetters v. H.M. Advocate 1994 S.C.C.R. 305 and McPhelim v. H.M. Advocate 1996 J.C. 203. It would have been of considerable assistance to this court to have had at least an outline of the relevant matters in the sheriff's report.