APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Lord Cameron of Lochbroom
Appeal No: C418/00
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
APPEAL AGAINST CONVICTION
HER MAJESTY'S ADVOCATE
Appellant: M. Scott, Q.C.; Balfour & Manson
Respondent: E. Targowski, Q.C., A.D.; Crown Agent
15 November 2002
"Now, here what the Crown says is that the accused was found in effect in possession of a large quantity of amphetamine in circumstances where it is obvious that the drugs were in the course of being transported or transferred; and that certainly is a conclusion that you could draw from the circumstances of this case. The accused, of course, denies that he was involved in any such transaction, but you may think it is perfectly obvious that the transaction, whoever was responsible for it, was exactly one that contravened the section. There was plainly a transfer or transport of drugs going on.
The real question perhaps then is who was responsible, or who was involved in that operation? But the operation of itself is as I've described. And if you find the facts established then it would be open to you to convict the accused if you were of the mind that he was involved in this operation.
So that really, I think, is the question you have to decide, and that will depend upon what you make of the evidence. The evidence is for you, as I have said at the outset, and it's not for me. I'll simply go over it briefly to cover the headings, but you must not think that I have reached any view about what decision you should reach.
The Crown case is simply that the drugs were found in the footwell of the passenger seat in which the accused was sitting. Further and in addition, the accused is said to have made a statement at the time which suggested that he had an interest in the package which was then found to contain drugs and that this was put to him shortly afterwards in the course of a taped interview which he had with the police.
If you accept that and are prepared to accept that the accused must have known what was in the package, the circumstances would certainly allow you to decide that the accused was concerned in the supply of drugs and the appropriate verdict would be guilty.
The defence case is, of course, that the accused knew nothing about the contents of the package and simply happened to be in his brother's car at the material time. Specifically, he denies saying that the package was a Christmas present for his bird. And as part of that defence also he indicates that it was his brother who must have been responsible for transferring the drugs, something which he subsequently found out to be true in conversations with him.
Now, I suppose at the end of the day, ladies and gentlemen, it may well boil down to the question of knowledge. Do you think, in all the circumstances, that Stephen Smith knew there were drugs in the package that was found in the car? Do you think that he said something at the time to the police officers as they had reported at the time the drugs were found? On the other hand, do you believe the accused? Or if what he and any of his witnesses, or indeed what anyone else in the case says, causes you a reasonable doubt about his guilt, then in [neither] of those situations the appropriate verdict would be guilty...".
"If you accept that and are prepared to accept that the accused must have known what was in the package, the circumstances would certainly allow you to decide that the accused was concerned in the supply of drugs and the appropriate verdict would be guilty."
In regard to the question of the appellant's knowledge the jury were entitled to take into account the evidence as to the size of the package and the fact that it was found in the footwell in front of the appellant. They were also entitled to consider, in the light of the trial judge's directions, whether they accepted that at the time he made a statement suggesting that he had an interest in the package, even though they rejected the explanation that it was intended to be a Christmas present for the appellant's "bird".
"In particular it was never suggested that any other conclusion could be drawn from the circumstances other than that a major drug transaction was taking place. The only real issue before the jury was whether any responsibility for the transaction that was clearly in the process of taking place could properly be attached to the appellant. This matter was left to the jury".
In the light of these considerations we are satisfied that, given that the jury was satisfied that the appellant had knowledge of the package, as the Crown contended, no separate issue as to his knowledge arose, and that they were entitled to conclude in the circumstances that he himself was involved in the drug transaction. We do not find the circumstances in the case of Sharkey v. H.M. Advocate to be similar to the present case. In that case the sheriff had merely directed the jury to consider whether the accused was sufficiently linked to the crime of being concerned in the onward supply of drugs. On the evidence, and having regard to what was in issue before the jury, that was not the critical point in the present case. In any event the trial judge's earlier directions on that matter are unimpeachable.
"The principle of impartiality is an important element in support of the confidence which the courts must inspire in a democratic society...However it does not necessarily follow from the fact that a member of a tribunal has some personal knowledge of one of the witnesses in the case that he will be prejudiced in favour of that person's testimony. In each individual case it must be decided whether that familiarity in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal".
The same considerations should, in our view, apply to any suggestion that a member of the tribunal has been prejudiced against the accused and the evidence which he has given.
"First, the tribunal must be subjectively impartial, that is, no member of the tribunal should hold any personal prejudice or bias. Personal impartiality is to be presumed unless there is evidence to the contrary. Secondly, the tribunal must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect...".