Scottish High Court of Justiciary Decisons

Smith v. Her Majesty's Advocate [2002] ScotHC 321 (15 November 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Cameron of Lochbroom Lord Marnoch	Appeal No: C418/00 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL AGAINST CONVICTION by STEPHEN SMITH Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: M. Scott, Q.C.; Balfour & Manson

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

15 November 2002

1. On 26 May 2000 the appellant was found guilty of a charge of contravening section 4(3)(b) of the Misuse of Drugs Act 1971. According to the terms of that conviction the offence was committed on 25 November 1998 at Drumpellier Country Park, Townhead Road, Coatbridge and related to the controlled drug amphetamine.
2. Before coming to the first ground of appeal, which relates to the alleged misdirection of the jury, it is convenient to set out a short summary of the evidence. Late in the evening of 25 November 1998 police officers, acting on information which they had received, went to the Country Park. They discovered two motor cars at the far end of the car park. They were the only cars which were there. The occupant of one of these cars, Andrew Kerr, was at the passenger side window of the other car. The appellant was in the front passenger seat of the latter car, while his twin brother Andrew was in the driver's seat of that car. The police officers identified themselves and searched all three persons and the cars. Evidence was given by the police officers that in the passenger footwell of the car in which the appellant was sitting there was found a large packet containing four bags of amphetamine, valued at between £30,000 and £40,000. There was also evidence that at the time the appellant stated that the package was a Christmas present for his "bird".
3. The appellant gave evidence. He denied that the drugs had anything to do with him. He had been working on his brother's car at a garage in Glasgow, as was confirmed by an independent witness. His brother was thereafter to drive him home to Clydebank, but insisted on taking him to the Country Park where he had to "do a wee message". He did not know anything about the drugs, which were in fact under his seat and not in the footwell as the police had stated. They belonged to his brother who had since died. He denied making any statement to the police that indicated that he had a connection with the package. Mr. Kerr gave evidence that he had arranged for a drugs deal, but stated that an arrangement had been made between himself and the appellant's brother.
4. In the course of his charge the trial judge, after giving the jury directions as to the scope of "being concerned in the supplying" of a controlled drug to someone else, continued as follows:

"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...".

5. Ms. Scott, who appeared for the appellant, accepted that there was sufficient evidence from which the jury could infer that the appellant was concerned in the supplying of the amphetamine to another or others. However, she submitted that the trial judge, by focusing narrowly on what the appellant knew was in the package, had failed to direct the jury that they required to be satisfied that he was knowingly involved in the supplying of its contents, according to the test set out in Salmon v. H.M. Advocate 1999 J.C. 67. She demonstrated the type of deficiency with which she was concerned by reference to the decision in Sharkey v. H.M. Advocate 2001 S.C.C.R. 290. The directions given by the trial judge might have been appropriate if the situation had been that the appellant was alone in the car. However, in this case he was with his brother in his brother's car, and there was evidence that arrangements had been made for a drug transaction between Mr. Kerr and his brother.
6. We do not consider that this ground of appeal is well-founded. It is plain that it was critical for the Crown to satisfy the jury that the appellant had knowledge of the package containing the drugs. This was as a means of proving that he was knowingly involved in the transporting or transferring of drugs which was taking place. The circumstances plainly indicated that, as the trial judge put it, drugs were in the course of being transported or transferred. Accordingly, we can well understand how the trial judge came to say:

"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".

7. It is also important to bear in mind the issues as they were presented to the jury. The trial judge informs us in his Report that the proposition that the jury might take the view that the appellant knew the drugs were in the car but that he was not involved in a scheme to supply drugs was never part of the defence case. He adds:

"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.

8. The other ground of appeal which we have to consider states that a member of the jury, to whom we will refer as Mrs. A., knew the appellant and was aware of the fact that he had previously offended. With that knowledge she ought not to have sat in judgment upon the appellant. Furthermore, she was likely to have been prejudiced against him due to the nature of the offence as a relative of hers had committed suicide in a drugs related incident.
9. In support of that ground of appeal we were asked to consider the contents of affidavits sworn by the appellant, his parents and his fiancée, along with two precognitions of Mrs. D., who is a daughter of Mr. A. by his former marriage.
10. From the affidavits of the appellant's parents it appears that Mrs. A. used to visit their house in Drumchapel in the early 1970s. According to his mother, she did so at least half a dozen times after the birth of the appellant and his twin brother in 1970; according to the father she did so "on dozens of occasions, particularly after the birth of the twins". It appears that some time after the birth of the twins - put variously as about 6 or 12 months - Mr. and Mrs. A. moved from Drumchapel to Partick. The appellant's mother states that she did not stay specifically in touch with Mrs. A., although she went with Mrs. D. to meet Mr. and Mrs. A. on a few occasions when the twins were about 5 or 6 years of age. Mrs. D. states that she is in no doubt that Mrs. A. would have seen the twins when they attended the funeral of her husband in November 1999. The appellant's mother says that she remained in very close touch with Mrs. D. who was close to her own age. The appellant states that he has always referred to Mrs. D. as his "aunt", and has seen her "hundreds of times over the years".
11. The appellant and his parents state that he and his brother, who died early in 2000, were well-known in the Clydebank area, as they were twins, engaged in body building and got into trouble with the police. The appellant's brother had once been charged with murder; and he himself was convicted in 1996 for dealing in drugs. The latter appears to refer to his conviction in the Sheriff Court at Dumbarton on 6 August 1996 on a charge of contravening section 5(3) of the 1971 Act, when he was sentenced to 6 months imprisonment.
12. In one of her precognitions Mrs. D. states that she knew through the grapevine that the twins were often in trouble. They were quite notorious about the area. She knew that both of them had been to prison. She had occasionally discussed with Mr. A and one of her sisters the problems which they caused. She did not discuss the twins with Mrs. A. or the appellant's mother. She did not see Mrs. A. "that often": she only talked to her for her father's sake. She had never been close to her because she had had an affair with her father before, and shortly after, her mother's death. She expresses the opinion that it is hard to believe that Mr. A. would not have said anything to Mrs. A. about "all of this", evidently referring to the problems with the twins. Over the years Mrs. A. "would obviously have heard about the twins through general family talk. She would certainly know about the boys and their reputation".
13. To this should be added that, according to a number of the affidavits, a grandson of Mrs. A. had committed suicide through a drug overdose some 3 or 4 years before.
14. The appellant states that he did not know that Mrs. A. was a juror. He would not have recognised her. His mother states that she realised that Mrs. A. was a juror when the jury returned to deliver their verdict. She had attended court as a potential defence witness and had not been in court prior to that point. She adds that she had seen Mrs. A. passing by in a corridor while she was waiting in a witness room prior to the commencement of the trial. It appears that it was not until a few days after the verdict that the fact that Mrs. A. was a member of the jury became a subject of discussion by the appellant's mother and his fiancée.
15. Ms. Scott submitted that a sufficient basis had been provided for an inquiry as to whether there had been prejudice on the part of Mrs. A. The particular matters with which an inquiry should be concerned were (i) her knowledge of prejudicial information about the appellant; (ii) whether she was prejudiced in her attitude to the type of offence with which the appellant had been charged; and (iii) whether either or both of the foregoing had an effect on the jury, including, but not limited to, their deliberations. She emphasised that it was difficult for the appellant to know what had happened, and that the court should not impose too high a test at the present stage. The court had a duty to see whether an impartial tribunal had been obtained, and it was only through the court that any inquiry could be carried out. The appellant had produced such information as he had.
16. Ms. Scott accepted that in the present case the normal steps had been taken to advise prospective jurors that, if they knew the appellant or any of the circumstances of the alleged offence, they should make that known to the sheriff clerk at the outset, so that appropriate steps could be taken to have them replaced. Further, she accepted that the jury were advised in the normal way that their verdict should be based on the evidence which they had heard. She also accepted that the affidavits and precognitions did not state that any information about the appellant's conduct had been given to Mrs. A. or that such information had been given by her to other members of the jury. However, the important point was that Mrs. A. had lived in the Clydebank area and that there was a continuing and strong connection between her and the appellant's mother through Mrs. D. While it could not be said that information had in fact been imparted, the concern was that it might have been. The reasonable inference was that Mrs. A. would certainly have known of the reputation of the appellant and his brother. An inquiry could establish that this was the case. It called in question the impartiality of Mrs. A., and hence the impartiality of the jury. In this case, as in McLean v. H.M. Advocate 2001 S.C.C.R. 526, it was not possible to determine ex post facto that the juror in question could not have been influential in the jury's deliberations or in the outcome of the verdict which was by a majority (see page 533). There was enough to justify inquiry into whether Mrs. A. was prejudiced against the appellant, or at any rate whether the circumstances, including, in particular, the highly prejudicial nature of the information, left legitimate doubt as to her impartiality.
17. At the outset it is important to bear in mind two considerations. As was observed by the Lord Justice Clerk (Wheatley) in McCadden v. H.M. Advocate 1985 J.C. 98 at page 102, there may never be a process which eliminates the possibility of personal prejudices existing among jurors. As he observed, the system of empanelling a jury from a list of assize is so broadly based that it provides a wide opportunity of a mix which is liable to level itself out. That kind of unavoidable mixture of attitudes must be distinguished from evidence of a specific concern about the attitude of or information known to a particular juror. Secondly, we refer to a statement by the European Court of Human Rights in Pullar v. United Kingdom 1996 SCCR 755 at para. 38:

"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.

18. In Pullar the court observed that it was well-established in the case law of the court that there were two aspects of the requirement of impartiality in Article 6(1) of the European Convention of Human Rights. It continued:

"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...".

19. In the present case we have no hesitation in saying that there is no material whatsoever which would indicate that Mrs. A. had any personal prejudice or bias against the appellant. There is nothing to indicate that she harboured any attitude which was adverse to him or critical of him in any respect. There is plainly nothing which could lead to an overcoming of the presumption in favour of personal impartiality. The issue then is whether there is any material which would justify the conclusion that there is a case for inquiry as to lack of impartiality from an objective viewpoint. We accept the submission made by the Advocate depute that this court should apply the test which was used in McCadden v. H.M. Advocate that an appeal court must be satisfied that there is "substantial, convincing and trustworthy evidence to support the allegations of prejudice". We assume, for present purposes, that the statements of fact, as distinct from the expressions of opinion, in the material before us are true. How far do they go towards raising any legitimate doubt as to the impartiality of the juror, despite the fact that the normal steps were taken to ensure that the jury did not include a person who should have been disqualified from serving on it, and the general presumption that jurors comply with the advice which has been given to them? In considering that question we take into account the nature of the information about the appellant which is said to give rise to prejudice.
20. In the present case the information before us stops well short of showing that Mrs. A. was given any information about the previous record and behaviour of the appellant. The information provided to this court in the two precognitions taken from Mrs. D. show that she did not give that information to her and that there was very limited contact between them. The idea that this information must have reached Mrs. A. either through her husband or through family gossip or general knowledge as to what was happening in Clydebank appears to us to be no more than speculation and supposition. Even when full account is taken of the nature of the information which is said to be prejudicial to the appellant we are not persuaded that there is enough to suggest that there is legitimate doubt as to her impartiality, and hence her ability and willingness to fulfil her proper function as a juror and apply her mind, in accordance with the directions given by the trial judge, only to the evidence which the jury had heard. For these reasons we are not persuaded that there is a sufficient basis to justify the holding of an inquiry.
21. We accordingly refuse the appeal.