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Cite as: [2005] HCJAC 81, [2005] ScotHC HCJAC_81

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Maclean v. Her Majesty's Advocate [2005] ScotHC HCJAC_81 (08 July 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Penrose

Lady Cosgrove

[2005HCJAC81]

Appeal No: XC221/04

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

APPEAL AGAINST CONVICTION and SENTENCE

LOUIS MacLEAN

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Lamb, Q.C.; McClure Collins

Respondent: Brown; A.D.; Crown Agent

8 July 2005

[1] The appellant was convicted in the High Court on 12 March 2004 of a charge of contravening section 4(3) (b) of the Misuse of Drugs Act 1971.

[2] The first ground of appeal with which we are concerned arises in the following way. On his conviction the appellant was handed a statement by the Crown for the purposes of section 9 of the Proceeds of Crime (Scotland) Act 1995. The counsel who had represented him at the trial had signed the statement as an Advocate depute. The appellant had been unaware that he had acted for the Crown in relation to the preparation of the proceedings under that Act. We should add that the court was informed by the Advocate depute in the present appeal that the same counsel had acted for the Crown in an application for a restraint order which was presented in the Court of Session.

[3] For the appellant Mr Lamb submitted that there had been a miscarriage of justice. He placed reliance on the general principle that justice should not only be done but be seen to be done. It would have been perceived that it was not right that counsel who had acted for the Crown in proceedings relating to the proceeds of crime should act as counsel for the accused.

[4] Mr Lamb sought support for his submissions in Rimmer, Petitioner 2002 S.C.C.R.1. However, that case was concerned with the requirement that a judge should be free from apparent bias. It has no relevance to the situation in regard to counsel whose professional responsibility is to represent the interests of a party. As was pointed out by the Advocate depute, under reference to Hoekstra v H.M. Advocate (No. 6) 2002 S.C.C.R.135 at paragraph 165, the question in the present type of case is whether the appellant has been denied his right to a fair trial. At paragraph 166 the court observed that what was decisive was whether there was objective justification for the complaint of lack of fairness.

[5] We consider that the Advocate depute was well-founded in submitting that what matters is whether the fact that counsel had previously acted for the Crown in regard to the proceeds of crime was of some practical consequence for the fairness of the appellant's trial. In that connection he referred the court to R v Saracoglu [2003] EWCA Crim 2244 in which the Court of Appeal observed at paragraph 56:

"The mere fact that solicitors or counsel may have accepted instructions or continued to act in a situation where a conflict of interest exists between their client and a co-defendant represented by the same solicitor cannot in itself be regarded as a ground of appeal. The question must always be whether that fact or some step taken or omitted as a result of, or influenced by, that fact, has given rise to unfairness in the course of the trial and/or affects the safety of the conviction".

The recent decision of the Court of Appeal in R v Morris [2005] EWCA Crim 1246 provides an illustration of a situation in which a conflict of interest did have that effect. At paragraph 66 the court pointed out that substantial material, together with serious and specific allegations, which could have been put to certain witnesses were not put "because the entire defence strategy and effort was pervaded by the conflict of interest" which a solicitor had allowed to arise.

[6] In the present case we are not persuaded that the fact that counsel acted in separate proceedings for confiscation and a restraint order has been shown to provide an objective basis for holding that the appellant was deprived of a fair trial. Accordingly we reject this ground of appeal.

[7] In the second ground of appeal it is maintained that the trial judge was in error in rejecting the submission made on behalf of the appellant that there was no case to answer, in respect that the Crown had failed to adduce evidence sufficient to prove that the appellant had the requisite knowledge of the existence of the drugs to which the charge related.

[8] The charge of which the appellant was convicted libelled that on 13 February 2003 at 16 Hawthorn Drive, Inverness and elsewhere in Scotland he was concerned in the supplying of cannabis resin. A co-accused, Peter Legge, was acquitted of that charge.

[9] The Crown relied on the evidence given by a number of police officers as to their observations in the course of a surveillance operation for a period leading up to 13 February 2003. This evidence included evidence as to their observations near 16 Hawthorn Drive, a house owned and occupied by the appellant's brother, James Maclean.

[10] According to that evidence, after 5:30 p.m. on that date the appellant and the co-accused arrived in a Transit van, which the appellant was driving. They got out of the van and entered the house. At 6.01 p.m. a Laguna car driven by a man Jason Young drove into Hawthorn Drive. He got out and entered the house. At 6:29 p.m. the appellant's brother, James Maclean, arrived at the house on foot. He remained there until sometime after 7 p.m., when he left and walked out of the street.

[11] A police officer gave evidence that at 7:15 p.m. the appellant was seen looking out of the window of the lounge at the front of the house. At 7:28 p.m. a Rover car entered Hawthorn Drive and was driven past the house. About five minutes later it returned and was parked outside 18 Hawthorn Drive. Two men got out. One of them was a Robert Clark. The driver knocked on the front door of 16 Hawthorn Drive. The passenger was seen to take a large holdall out of the rear of the car and carry it towards the house, with difficulty apparently on account of its weight. Two police officers who were maintaining observation gave evidence that the appellant emerged from the close between 16 and 18 Hawthorn Drive and beckoned to the two men to come down the close, which they did. Shortly thereafter, according to the evidence of one of the police officers, the appellant was seen to be standing in the lounge of the house with his back to the window. (It may be noted that there was evidence from photographs lodged as productions which indicated that it was possible to see from the lounge into the kitchen at the rear of the house through a doorway in which there was a glass panelled door). Within five minutes the two men re-emerged from the house - without the large holdall - and drove off.

[12] At 7:40 p.m. Jason Young was seen to emerge from the house, carrying a small blue holdall. He drove off in the Laguna car. When he was subsequently detained by police officers it was found that the blue holdall contained two taped packages, consisting of a total of eight bars of cannabis resin.

[13] At 7:45 p.m. police officers entered the house by forcing entry through the front door. Other officers entered through the rear door, which gave access to the kitchen. Two of the police officers who had approached the house from the rear gave evidence of seeing a man standing at the kitchen door as they approached. They said that he was not the appellant, but bore some resemblance to the co-accused. When the police officers entered the house they found the appellant and the co-accused in the lounge. In the kitchen they found a large black holdall containing various taped packages. On the kitchen table there was a further taped package, which was the size of a small loaf of bread. Evidence was given by police officers that the large holdall which they had seen being carried into the house was similar to this holdall.

[14] A total of eight taped packages were recovered from the house. They were found to contain a total of 48 bars of cannabis resin, each of which weighed approximately a quarter of a kilo. It was a matter of agreement that all the drugs from the taped packages were cannabis resin. The maximum value of the drugs recovered was, according to evidence given to the trial, in the region of £65,000. Accordingly there is no question but that the drugs were of such a quantity as to indicate that they were intended for onward distribution.

[15] Mr Lamb accepted that the jury would have been entitled to infer that the appellant had been looking out for the arrival of the two men. However, the evidence that the appellant beckoned them into the house was neutral. That was not evidence to the effect that the appellant had been in the kitchen, or that he had any connection with the large holdall or its contents.

[16] The Advocate depute pointed out, by reference to the evidence, that the appellant had arrived at his brother's house in time for the expected arrival of the two men in the car. He remained in the house with the co-accused after his brother had left. He was seen to be looking out of the window, as if waiting for the delivery. The evidence that he beckoned the two men was not neutral. Jason Young arrived at the house before, and left after, the arrival of the large holdall. He was found to be in possession of two packages containing bars of cannabis resin. It was open to the jury to infer that Young had taken away part of the consignment which had arrived in the large holdall. The appellant was in the lounge from which the kitchen could be seen. The evidence was sufficient to prove that he was knowingly involved in the supplying of some commodity, which was established to be cannabis resin.

[17] We consider that there was sufficient to entitle the jury to infer from the evidence, if they accepted it, that the appellant was actively involved in the receiving of the large holdall which was brought to the house by the two men in the Rover car, and that the large holdall had been to some extent unpacked, with part of its contents lying on the kitchen table and part taken away by Young. The appellant remained in the house and could see the holdall and what was lying on the kitchen table. The fact that the co-accused or a third man remained in the house does not, in our view, detract from the sufficiency of the evidence to prove that the appellant was knowingly concerned in the supplying of the drugs.

[18] For these reasons we do not consider that this ground of appeal is well founded.

[19] In the course of his submissions Mr Lamb indicated that he wished to consider whether he should invite the court to receive additional grounds of appeal relating to the representation of the appellant's defence at the trial. He explained to the court that he had been recently instructed, and had not had an adequate opportunity to consult with the appellant. In the circumstances we were persuaded that we should allow further time to enable Mr Lamb to consider the appellant's position. Accordingly arrangements will be made for a further procedural hearing for this purpose.