Scottish High Court of Justiciary Decisons

Lennox & Anor v. Her Majesty's Advocate [2002] ScotHC 126 (25 September 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Marnoch Lord Weir	Appeal Nos: C389/00 C353/00 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEALS AGAINST CONVICTION by JOHN ADAM LENNOX and THOMAS STEPHEN BOYLE Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellants: A. Ogg, solicitor advocate, C. Shead; McCourts and Balfour & Manson

Respondent: E. Targowski, Q.C., A.D.; Crown Agent

25 September 2002

1. On 2 May 2000 the appellants were convicted, after trial in the Sheriff Court in Glasgow, on a charge of contravening section 4(3(b) of the Misuse of Drugs Act 1971. According to the terms of the charge on 29 September 1988 in a house in Glasgow or elsewhere in Glasgow they were concerned in the supplying of diamorphine to another or others.
2. At the trial evidence was given by a number of Crown witnesses as to the finding of a number of persons, including the appellants, in the house, where there were obvious signs of drug usage. A quantity of heroin was found both scattered on the floor and in small packets. There was also evidence of paraphernalia which could be regarded as associated with drugs. As regards the appellant Lennox, police officers found 14 small bags of heroin contained within a larger bag and tied to a shoelace connected to his underpants. The wrappings of those bags were identical to materials found within the room. In the case of the appellant Boyle there was evidence that he was sitting on a chair in the livingroom and that around the chair and on his trousers there was powder which was found on analysis to be heroin. There were also squares of paper cut to size and portions of clingfilm and cut corners of polythene bags.
3. Each of the appellants was interviewed by the police. The transcripts of these interviews were produced. In the case of the appellant Lennox, several portions of the transcript were read out in the course of the trial. Their clear tenor was that he accepted that he was a drug addict and user and that he was in possession of the 14 bags of heroin, which he said that he had purchased earlier that day before coming to the house where he was found. He said that the heroin was for his personal use. At no stage did he admit to being in any sense concerned in the supplying of the drugs. In the case of Boyle, the whole of the transcript of the interview was read out before the jury. In the course of that interview he said that he and his girlfriend and co-habitee, who was also in the room at the time of the police raid, were users of heroin, claiming that what the police had found was for his personal use. He denied being involved in the division, wrapping, sale, distribution or supply of heroin.
4. In the course of her speech to the jury the procurator fiscal depute founded on each of the statements as including an admission by the particular appellant that he was in possession of heroin and invited the jury to disbelieve the explanation which the appellant had given for that possession. It is clear from the approach which was taken by the procurator fiscal depute that these admissions were founded upon by her as adminicles of evidence which, when taken together with other evidence in the case, would prove the charge against each of the appellants. It is not in dispute that in so doing the procurator fiscal depute proceeded on the basis that each of the statements fell to be regarded as a "mixed statement", as that expression was defined in Morrison v. H.M. Advocate 1990 J.C. 299, and, more recently, in McCutcheon v. H.M. Advocate 2002 S.C.C.R. 101. It is also plain that each of the solicitors for the appellants treated the statements in the same way, and accordingly invited the jury to accept the exculpatory parts of the statements as evidence of the truth. Neither of the appellants had given evidence.
5. In the course of his charge, in dealing with the statements, the sheriff said:

"In relation to that, you have to ask yourselves a number of questions. First of all, you have to be satisfied that these police interviews were made at all - there is no admission in relation to them - and if these statements were made which you heard either from the transcript or from the tape, if they were fairly and properly conducted by the police officers. You have to ask what effect these statements have on the evidence in the case, and if you accept that the evidence from these police statements is evidence which is admissible and was fairly obtained then you can consider all the evidence from these interviews as part of the evidence in the case. You will gather from what you have heard in relation to the statements that the statements do not incriminate either of the accused in the actual supply of a controlled drug, or in being concerned in the supply of a controlled drug to the extent that there is no admission in those statements that they were so involved. Neither of them says anything which directly pointed to guilt. In the circumstances, the statements are admissible for proving that the statements were made and for showing the attitude or reaction of the accused at the time when those statements were made. The statements are not evidence of the facts which are contained within them. It shows - or the statements may show - that the accused have been consistent in the whole of the interview as to the position that they have adopted, and the account at that stage may confirm the evidence and may add to it. But if an accused person wishes to establish by evidence the truth of any matter, they have the opportunity of going into the witness box to give evidence about those matters. As I have said, they are not obliged to do so, but an accused who does give evidence is liable to be cross-examined on that evidence and that is something which has not happened in this case. However, there is contained within the interview an indication of the position which they gave to the police at the time if you accept the content of the statement, and it is available to you to consider and to add to the other evidence which you have heard".

6. Miss Ogg for the appellant Lennox and Mr. Shead for the appellant Boyle submitted that, in treating each of the statements as wholly exculpatory, the sheriff had misdirected the jury. We are in no doubt that that submission is well-founded. It is plain that the Crown founded, and were entitled to found, on parts of each statement as evidence in support of the proof of the charge against each of the appellants. It followed that each of the appellants was entitled to found on other parts of his statement as showing that he was innocent of the charge. It would then be a matter for the jury to decide which parts of the statement they accepted as either incriminating or exculpating the appellant. Thus it was a misdirection on the part of the sheriff to direct the jury that "the statements are not evidence of the facts which are contained within them".
7. However, we are also concerned with a further passage in the sheriff's charge which immediately follows what we have quoted. He said:

"When the accused in each case spoke to the police, if you are satisfied that that is evidence which you can accept - and you will have heard Mr. McAteer's criticism of it - it is a matter for you to decide whether you accept the content of those police statements but you will notice when the statements were made to the police officers each accused said some things which are capable of being interpreted as pointing to innocence, but there were also other points which may suggest an involvement with something else that may have been going on. There was certainly no admission of being involved in the supply of controlled drugs, but there was an admission in relation to the use of controlled drugs. You have to consider the whole of the statements, any parts which point to the accused's guilt, and parts which point to the accused's innocence and you have to determine whether the whole or any part of what the accused said is accepted by you as the truth."

8. The Advocate depute sought to argue that the sheriff had retrieved the situation by giving the jury these further directions which had the effect of enabling them to view the statements made by the two appellants as "mixed statements".
9. We are quite unable to accept that submission. These directions appear to involve a direct contradiction with his earlier directions that they should treat each of the statements as purely exculpatory, with all that that entailed. The sheriff did not seek to withdraw what he had earlier said or to qualify it in any sense. The combination of these directions with the earlier directions can only have confused the situation.
10. It appears from his report that the sheriff took the view that it was debatable whether what was said by each of the appellants in the course of his interview amounted in any sense to being partly incriminatory, and that for this reason he decided that it would be appropriate for him to give directions in relation to both exculpatory statements and "mixed statements". We are bound to say that we do not follow the sheriff's line of reasoning. This case was concerned with the treatment of a single statement in the case of each appellant and its relevance to a single charge. Within each statement there were, on the one hand, parts relied on by the Crown and, on the other hand, parts relied on by the defence. The interrelationship between the former and the latter was obvious. This point may be illustrated by reference to the appellant Lennox. He admitted in the course of his interview that he had been found in possession of a number of bags containing heroin. That admission was treated by the Crown as an adminicle of evidence against him in respect of the charge. Thus the Crown case was that, when that admission was taken along with other evidence to the effect that such a quantity of heroin was inconsistent with personal use, an involvement on his part in supplying the heroin to others was established. His admission thus had a significance which was relevant to the proof of the charge. At the same time his statement included an alternative explanation for his possession which was inconsistent with guilt. This accordingly provides an example of a statement, parts of which are founded on by the Crown in support of their case against an accused person, whereas other parts provided an alternative and innocent explanation for what the Crown founded on as evidence against the accused.
11. We are in no doubt that the effect of the sheriff's directions was to exclude, or at any rate to impair, the right of each of the appellants to found on those parts of the statements which were exculpatory of each of them. In these circumstances it is clear that there has been a miscarriage of justice in the case of each of the appellants. Their appeals against conviction are allowed.