Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Kirkwood Lord Coulsfield Lord Marnoch	Appeal No: C990/00 OPINION OF THE COURT delivered by LORD KIRKWOOD in NOTE OF APPEAL AGAINST CONVICTION by MICHELLE FRANCES ROONEY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: A. Ogg, solicitor advocate; J.C. Hughes, Glasgow

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

8 October 2002

1. This is an appeal against conviction at the instance of Michelle Frances Rooney. She and her co-accused, Philip Taggart, appeared at the High Court at Perth in November 2000, facing a charge that they had been concerned in the supplying of diamorphine, a Class A drug, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. They both pled not guilty and went to trial. They were each convicted of an amended charge which narrated that on 7 November 1999 at Her Majesty's Prison, 3 Edinburgh Road, Perth, they were concerned in the supplying of diamorphine. In the case of the appellant, sentence was deferred and she was subsequently placed on probation.
2. We were informed by the trial judge that the Crown led evidence to establish that the appellant, accompanied by her baby daughter, visited her boyfriend, Mr. Taggart, at Perth Prison on the afternoon of Sunday 7 November 1999 and was searched prior to entering the visiting hall. The prison officer who was on duty there explained that, having gone through a metal detector, each visitor was searched to the extent of checking the pockets of their outer clothing and the contents of any bag being carried. Visitors were not subjected to a thorough search and if anything had been concealed, for example, in an inside pocket or within a waistband, it would not have been discovered. The appellant's child was not searched in any way. The trial judge's report states that there was also evidence that, prior to receiving a visit, all prisoners were subjected to a thorough rub-down search and that Mr. Taggart was searched in this manner on the date in question. Prisoners were then placed in a holding area which was kept under video surveillance before they entered the visiting hall. After the visit was over, each prisoner was subjected to a thorough search which included removal of their clothing and a full body search.
3. The jury were shown the video of the CCTV surveillance of the visiting hall on the afternoon in question and, in particular, footage of prolonged embracing, touching and fondling between the appellant and Mr. Taggart, in the course of which Mr. Taggart had his arms round the appellant's waist and appeared to be fumbling about at her back underneath her jacket. He was then seen to do something to the cuff of at least one sleeve of his sweatshirt. Prison officers observing the scene became suspicious and approached Mr. Taggart. After a slight scuffle he was taken to the search area where two cellophane wraps were recovered, one from under each cuff. The packages recovered were both found to contain diamorphine of 17% purity with a combined total weight of a little over 6 grams. At the conclusion of the Crown case counsel for the appellant made a submission of no case to answer in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 but that submission was rejected by the trial judge.
4. The Crown case was that the packages of drugs had been brought into the prison by the appellant and passed to Mr. Taggart in the course of her contact with him. The trial judge states in her report that the starting point of the Crown case against the appellant was the evidence of the search to which she was subjected, the significance of which was to demonstrate that it would have been possible for her to have brought the drugs into the prison and thus to establish a basis for inferring that the drugs were passed during the very obvious fumbling which was captured on video. The relevant part of the video was played and replayed on several occasions in the course of the trial and was eloquent of what could only be described as highly suspicious behaviour on the part of the appellant and Mr. Taggart. The evidence of the thorough search to which Mr. Taggart was subjected prior to the visit was a further strand of evidence relied upon by the Crown as indicating that Mr. Taggart did not have the drugs on his person at that stage. The prison officer who spoke to the search procedures conceded that it would, theoretically, have been possible for the packages to have been handed to Mr. Taggart by a fellow prisoner while he was in the holding area prior to entering the visiting hall, but explained that it would be extremely unlikely, and in his experience unheard of, for a prisoner to receive drugs from a fellow prisoner at that point since every prisoner knew that he would be subjected to a full rub-down search at the end of the visit. The trial judge considered that the inference that the appellant was the source of the packages recovered from Mr. Taggart, having knowingly brought them into the prison with her, was one which the jury were well entitled to draw from the available circumstantial evidence. The trial judge went on to observe that the video evidence had been compelling to the extent that she did not consider that any reasonable jury having viewed it could possibly have formed any impression other than that the very obvious fumblings were indicative of a clandestine transaction taking place between the appellant and Mr. Taggart.
5. The only ground of appeal maintained before us was to the effect that the evidence against the appellant, which was entirely circumstantial, had been insufficient to prove that she had supplied the drugs to Mr. Taggart, and that the trial judge had erred in rejecting the no case to answer submission. The video recording and the finding of the drugs on Mr. Taggart's person were insufficient to prove that the appellant had supplied the drugs to him. In particular, the Crown had failed to prove that when Mr. Taggart entered the visiting area the drugs were not already in his possession.
6. Counsel for the appellant submitted to us that the evidence led by the Crown had been insufficient to entitle the jury to convict. The evidence against the appellant had been circumstantial and, according to the report of the trial judge, the Crown had relied on four adminicles of evidence, namely (1) the fact that, although the appellant had been searched before she had been admitted to the visiting area, the method of search, which did not involve any examination of the appellant's back or the waistband of her trousers, was such that it was possible that she had brought the drugs into the prison, (2) the evidence of the "thorough search" to which Mr. Taggart had allegedly been subjected before he had been taken to the holding area and then to the visiting area, (3) the evidence of the CCTV video recording and (4) the evidence of the prison officer who said that it would be extremely unlikely for the packages to have been handed to Mr. Taggart by another prisoner in the holding area. However, the trial judge had been wrong to state that there was evidence that Mr. Taggart had been subjected to a thorough rub-down search prior to the appellant's visit. There had, admittedly, been evidence from several prison officers that it was normal practice for such a search to be carried out prior to a visit, but no witness had spoken to having searched Mr. Taggart, or seen him being searched, prior to the appellant's visit. However, counsel conceded that the evidence that a prior rub-down search was normal practice was an adminicle of evidence which the jury were entitled to take into account. So far as the video evidence was concerned, the suspicious behaviour had been on the part of Mr. Taggart, not the appellant, but counsel accepted that the video evidence was open to the interpretation put forward by the Crown, namely, that the very obvious fumblings had been evidence of highly suspicious behaviour on the part of the appellant and Mr. Taggart. In the circumstances, counsel submitted that there had been insufficient evidence to entitle the jury to be satisfied beyond reasonable doubt that the appellant was guilty. The appeal should be allowed and the conviction quashed.
7. In reply, the advocate depute submitted that there had been a sufficiency of evidence against the appellant and that the trial judge had been right to reject the no case to answer submission. The Crown accepted that there had been no evidence from any prison officer who had searched Mr. Taggart before he was taken to the holding area or had seen him being searched. However, there was evidence that it was normal practice for prisoners to be thoroughly searched before being taken to the holding area, and there was, of course, evidence that after the appellant's visit Mr. Taggart was found to be in possession of the drugs. In the circumstances the evidence, particularly the video evidence, had been sufficient to go to the jury and the appeal should be refused.
8. In our opinion the trial judge was right to reject the no case to answer submission and the evidence was sufficient to entitle the jury to convict the appellant. The principal evidence against the appellant was the CCTV video recording which showed Mr. Taggart with his arms round the appellant's waist and apparently fumbling about at her back underneath her jacket. In particular, having taken his left hand from under the appellant's jacket, he appeared to place something up his right sleeve. We had the advantage in the course of the hearing of viewing the video recording and we agree with the trial judge that the jury would have been entitled to interpret it as evidence of a clandestine transaction taking place between the appellant and Mr. Taggart. There was also evidence (1) that, despite the appellant having been searched before she entered the visiting area, the nature of the search was not such as to exclude the possibility that she had brought the drugs into the prison, (2) that it was normal practice for prisoners receiving visits to be given a thorough search before being taken to the holding area, (3) that the drugs were found, one package under each cuff, when Mr. Taggart was searched immediately after leaving the appellant and (4) that it was unlikely that he would have been handed drugs by another prisoner in the holding area, in view of the fact that he would be subjected to a full rub-down search at the end of the visit.
9. The evidence on which the Crown relied was circumstantial and, in our opinion, the various circumstances established in evidence, taken together, were capable of supporting the inference beyond reasonable doubt that the appellant was guilty of the charge. The appeal is therefore refused.