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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Osborne
Lord Johnston
Lord Carloway
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[2006HCJAC2]
Appeal No: XC433/02
OPINION OF THE COURT
delivered by LORD JOHNSTON
in
APPEAL AGAINST CONVICTION
by
JOHN IRVINE
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
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Appellant: Gilchrist; Ross & Fox,
Glasgow
Respondent: Turnbull, Q.C., A.D.; Crown Agent
13 January 2006
[1] On
19 November 2002, at the
High Court in Glasgow, the
appellant was convicted by a majority verdict on the following amended charge:
"On 6 July
2002 at Gordon Street, Hope Street and Cowcaddens Road, all Glasgow and
elsewhere in Scotland, you were concerned in the supplying of a controlled
drug, namely Diamorphine, a Class A drug specified in Part I of Schedule 2 to
the aftermentioned Act, to another or others, in contravention of Section 4(1)
of said Act: CONTRARY to the Misuse of
Drugs Act 1971, Section 4(3)(b)."
He was sentenced to 8 years
imprisonment, backdated to 8 July
2002. No appeal is taken
against the sentence, although one was originally marked.
[2] Leave
to appeal against conviction was granted by three sift judges on 27 November 2003.
[3] The
evidential background to the matter was that the appellant, who is a private
taxi driver, met a man in a Spar shop in Bellshill, near where the appellant
lived, and was requested to make a trip to Central Station, Glasgow to pick up
a passenger who would identify himself to him.
The appellant duly complied with this request and, upon arrival at the station, a person entered his taxi who plainly had the means
of identifying it. He had with him a
holdall. Within a very short time of
leaving the station the passenger requested the appellant to pull over and
stop. The passenger left the
vehicle. The appellant drove on and was
soon stopped by the police who discovered a large quantity of heroin in the
back of the car. Its value was in excess
of £1m. The appellant's defence, as
given in evidence, was, at least to the effect that he had no idea that
anything left in the back of the car was drugs.
There was some suggestion as to whether he knew there was anything there
at all after the passenger had left. The
majority verdict reflects the jury's failure to accept that defence.
[4] The
grounds of appeal that were eventually focused alleged ineffective
misrepresentation by the appellant's counsel and solicitors at the trial and
were focused by this court, in an interlocutor dated 14 January 2005, alleging
failures of representation as follows:
"(1) to make efforts, if necessary by
commission and diligence, to establish the identities of the subjects of the
police surveillance prior to the appellant's arrest, with a view to
incriminating those persons and citing them to give evidence at the appellant's
trial;
(2) to seek an adjournment of the
appellant's trial, it having become clear, it is said, by the morning of the
trial that the Crown were not able or willing to provide the required
information;
(3) to pursue the identity of the said
subjects during cross examination of the Crown Witness Detective Inspector
Brian Dodd."
[5] The
evidence disclosed that the police had been engaged in a widespread
surveillance exercise in relation to drug trafficking for a considerable period
of time before the date in question, but equally it was established that the
appellant had not come to the attention of the police until 6 July and was not
a subject of the overall surveillance operation which was ongoing. Nevertheless, it was obvious that information
had been obtained by the police from some source which directed them not only
to the appellant and his home address in Bellshill but also to Central Station
and the subsequent arrest. The advocate
depute was at some pains to suggest to us that the source of that information
was not necessarily an informer, but that does not seem to us to be material.
[6] Mr.
Gilchrist, appearing for the appellant, submitted that against a background of
the appellant specifically having instructed his advisers to establish the
identities of the subjects of the police surveillance, the failure to do so and
thereafter to lead such persons in evidence, amounted to a serious failure on
the part of his advisers resulting in a miscarriage of justice, which he
recognised was the necessary test. He
accepted that he could not submit that such evidence as might have been
available from the relevant witnesses would have led the jury inevitably to
reach an acquittal but his basic position was that the absence of the evidence
prejudiced the defence and conversely, if it had been led, the jury would have
been in a better position to accept the appellant's overall position of
ignorance of drugs at the material time.
[7] Both
the instructing solicitor at the time and trial counsel submitted reports to
this court which both counsel looked at in some detail. Both gave reasons as to why they did not
follow up the line that was being pursued now.
[8] In
response the advocate depute, particularly by reference to the position of the
instructing solicitor, submitted that the whole approach was misconceived. Even if such persons as were involved in the
surveillance operation had been discovered and lead in evidence, there could be
no question of incrimination since the act of which the accused was convicted
could only have been committed by himself, namely, driving the car with drugs
in it. Subsequent investigations, once
the names of the relevant persons were given to the defence after the trial,
six in all, revealed five of those were excluded from the surveillance
operation in due course and while the sixth was involved in such drug
trafficking, all six denied any knowledge of the existence or involvement of
the appellant. That was the maximum that
the evidence they could give would yield and added nothing to the defence. He referred us generally to the leading case
on defective misrepresentation, H.M.
Advocate v Anderson 1996 S.C.C.R.
114 and more specifically to H.M.
Advocate v McIntosh 1997 S.C.C.R.
389 and H.M. Advocate v Ditta 2002 S.C.C.R. 891, as both
reflecting the proper approach in cases of this sort when defective
representation was being alleged against a background of failure to lead
evidence. He submitted that not only was
the likely evidence to be identified but also it had to be assessed as both
significant and material to the jury's deliberations such as to amount to a
miscarriage of justice by reason of its absence.
[9] We
have little difficulty in resolving this position against the appellant. In the first place there is no basis upon
which the relevant persons, if they were identified prior to the trial, could
be incriminated for the reasons we have already given. At best, they would merely have asserted that
they were not aware of the existence or involvement of the appellant, but we do
not see how this adds anything to the defence as stated and put forward. Furthermore, each or all of the relevant
persons might have declined to get involved at all upon grounds of avoiding
self incrimination and would, in any event, if led in evidence, would have to
be given the opportunity to deny answering any questions which might suggest
they were involved in drug trafficking.
It cannot therefore be asserted with any confidence that there was any
relevant evidence that was omitted from the trial by reason of the matter not
being followed up. In this respect the
case of McIntosh is of particular
significance in identifying the test to be applied in a case of this type. To our mind there is no basis upon which it
can be successfully asserted that even if all six witnesses had given evidence
to the effect that they did not know of the existence of the appellant, nor
that he was involved in drug trafficking, would add anything to the specific
defence put forward at the trial.
Furthermore, we regard it as highly significant that the courier plainly
left the drugs deliberately in the taxi, something he would hardly have done
unless he was sure that they were heading for the right destination. This suggests that the ignorance asserted by
the appellant was unfounded as a matter of inference.
[10] Be that as it may, we do not consider that the representation
at the trial was in any way defective in any of the aspects identified by this
court in the relevant interlocutor or that, had the desiderated steps been
taken, additional evidence of material value to the appellant's case could have
been obtained. It cannot be therefore
asserted that there was a miscarriage of justice by the failure to lead the
relevant evidence.
[11] In these circumstances this appeal must fail.
