Scottish High Court of Justiciary Decisons

Withers v. Her Majesty's Advocate [2002] ScotHC 120 (03 September 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Kirkwood Lord Cameron of Lochbroom Lord Marnoch	Appeal No: C736/01 OPINION OF THE COURT delivered by LORD MARNOCH in NOTE OF APPEAL AGAINST SENTENCE by WILLIAM JAMES WITHERS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: N. McCluskey; Wardlaw Stephenson & Allan

Respondent: Woolman, Q.C., A.D.; Crown Agent

3 September 2002

1. This is an appeal against sentence, the appellant (aged 54 years) having pled guilty to a charge of being concerned in the supplying to others of cannabis resin, contrary to the Misuse of Drugs Act 1971, section 4(3)(b). The charge to which the appellant pled guilty is restricted to a single day (23 October 2000) and the value of the cannabis resin found in the appellant's house was estimated as being between £2,320 and £4,680. However, when the appellant was searched he was found to have in his possession £11,000 in cash and, in sentencing the appellant to 7 years imprisonment, it is clear that the judge at first instance had regard not only to the cannabis resin found in the house and three previous convictions under the Misuse of Drugs Act 1971 but also, and more importantly, to an inference drawn by him that the £11,000 was about to be used in the purchase of further drugs. As matters have turned out the only real question in the appeal is whether the judge at first instance was entitled to have regard to that inference.
2. What appears to have happened when the plea of guilty was tendered is as follows. The advocate depute, in his initial narrative, accepted that the £11,000 had come from the sale of the appellant's mother's home, made no reference to anything said by the appellant at the time of the search and did not move for forfeiture of the money in question. The solicitor advocate for the appellant then addressed the court and stated that the appellant had the money because he was on his way to London to buy carpets. In answer to a question by the court it emerged that there was police evidence that at the time of the search the appellant had said "It's £10,000 I've no got the drugs yet". However the appellant had expressly denied saying that in the course of his subsequent police interview. At that point the advocate depute interjected and, somewhat surprisingly, advised the court that the Crown position was that at the time of the search the appellant had indeed made the statement in question. There was then some discussion as to whether there should be a proof in mitigation or whether, indeed, the appellant might, in the circumstances, wish to withdraw his guilty plea. In the event neither suggestion found favour with the solicitor advocate appearing for the appellant and the Crown's final position appears to have been that it was "unaware" of what the appellant's intention was in relation to the cash found on him.
3. From the foregoing narrative it is, we think, clear that the court at first instance was placed in a very difficult position by a series of inconsistent stances adopted by the Crown. We are in no doubt that the obvious inference to be drawn from the statement alleged to have been made by the appellant at the time of the search is that the £11,000 was about to be used in the purchase of drugs for onward supply. Accordingly, if it was the Crown position that these words were uttered, that should have been made clear at the outset and there was, we think, no proper basis for subsequently claiming that the Crown position was in some way neutral. However, it is clear to us that that was not the position in substance being adopted by the Crown at the outset and, on the contrary, in light of the Crown's initial narrative making no mention of the appellant's alleged statement to the police, we have no reason to doubt the contention advanced by counsel for the appellant, namely that prior to the tendering of the guilty plea the Crown had agreed that the money found on the accused was not connected with drug dealing and would therefore be returned to the accused. In our opinion the Crown was not entitled to depart from that position and we are pleased to record that, in the end, the advocate depute appearing before us accepted that analysis. He accordingly invited this court to dispose of the appeal on the basis that the £11,000 found on the appellant was irrelevant to the charge. In that situation we have quashed the sentence of 7 years imprisonment and have substituted for it a sentence of 3 years imprisonment.
4. Before parting with this case we wish to emphasise that it does illustrate the necessity for clear and reasoned positions to be set out by the Crown and defence respectively in relation to guilty pleas before the court. The court should not be left to resolve ambiguous or, worse still, inconsistent statements made by one party or the other and if there is a dispute between the parties, either on fact or inference, which the court considers material, then that is something which must normally be resolved by proof in mitigation.