APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Lord Nimmo Smith
 HCJAC 7
Appeal No: XC13/04
OPINION OF THE COURT
delivered by LADY PATON
APPEAL AGAINST CONVICTION
HER MAJESTY'S ADVOCATE
Act: Shead, M.C. MacKenzie; McClure Collins (Appellant)
Alt: Bain, Q.C., A.D.; Crown Agent
7 February 2008
 The appellant is an off-shore worker in his fifties. He has no previous convictions. In early 2002 his home was searched. Bank-notes totalling £81,300 were found secreted in a hidden safe, a briefcase, and a carrier bag in a cupboard in the main bedroom. When the bank-notes were subjected to sophisticated scientific examination, they were shown to be heavily contaminated with heroin. No other illegal drugs, traces of such drugs, tick-lists, or paraphernalia normally associated with drug-dealing were found in the appellant's home. No surveillance of the appellant's activities had taken place.
 The appellant
was subsequently charged with being concerned in the supplying of heroin
contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. At his trial, at the close of the Crown case,
defence counsel submitted that there was no case to answer in terms of section
97 of the Criminal Procedure (
 The appellant was ultimately convicted by majority verdict, and sentenced to five years imprisonment. He appealed against conviction and sentence, and was granted interim liberation. Extensive defence preparations for the appeal then began, and took some time to complete. The appellant's advisers were ultimately in a position to present the appeal in 2007.
appellant is an off-shore worker. A lady
friend held a key for the house. She
would occasionally allow workmen access to carry out work there. Her son's partner would occasionally do that
for her. Both gave undisputed evidence
that the appellant lived alone at
the course of February, while the appellant was working off-shore, Transco
staff forced entry to the house because a smell of gas had been detected and
reported by a plumber working there.
Thereafter the outside door had been secured by a padlock, the key for
which was held at Bucksburn Police Office.
the appellant returned on-shore on 1 March, he was met by police officers at
On 6 March the money was delivered to Mass Spec Analytical Limited for examination for possible traces of controlled drugs. Before it was taken to the laboratory, each of the three quantities of money was separately packaged as dictated by the company. The top note from each bundle was separated from the others for fingerprint analysis. There was no evidence of the result of that analysis. A proportion of the remainder of the notes was analysed for the presence of various controlled drugs.
about that analysis was given by two forensic scientists employed by Mass Spec
Analytical Limited, namely Neil Ciaran Ronan, BSc (Hons) MSc GrandInstP and
Matthew James Hickson BSc (Hons) MSc.
The evidence of the latter was confined to confirming that the report
which he had compiled jointly with Neil Ronan was an accurate report of his
findings. The terms of the report were
spoken to in detail by Ronan. The report
recorded that a representative proportion of the bank notes was examined which
was sufficient in the opinion of both forensic scientists to establish the
nature of any illicit drug contamination and the proportion of contaminated
bank notes. That representative
proportion consisted of 798 notes from the safe, 89 from the briefcase and 155
from the bag under the wardrobe. In
relation to each of the three quantities of notes the principal conclusion set
out in the report was that the amount and frequency of diamorphine
contamination was very much greater than that typically found on bank notes
from general circulation. It was
explained that it was common for bank notes to be contaminated with cocaine, because
it is a very stable drug and bank notes are used to snort cocaine. It was unusual to find diamorphine
contamination, because heroin degrades much more quickly and bank notes are not
generally used in the abuse of diamorphine.
One might expect anything from zero to three percent of bank notes in
general circulation to show signs of diamorphine contamination. Ronan had never seen any more than five
percent contamination in any sample in 7 years of experience of carrying out
this work. In contrast to that, in the
region of 95% of the notes examined on this occasion were contaminated with
diamorphine, and the quantities on each note, while invisible to the naked eye,
were quite large. These findings were
very significantly different from what Ronan would expect in any analysis of
bank notes in the
 The appellant has several grounds of appeal, relating to sufficiency of evidence; directions given by the trial judge; and an argument in terms of section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995 that no reasonable jury properly directed could have returned the verdict they did. The appellant intends to seek leave to add a fourth ground of appeal, concerning fresh evidence.
"A. INSUFFICIENT EVIDENCE:
1. This was an entirely circumstantial case. There was it is submitted
insufficient evidence to entitle the jury to convict. It is submitted that the circumstances relied upon by the Crown were too remote, ambiguous and insufficiently incriminatory to form a sufficiency.
2. At the conclusion of the Crown case, a submission was made in terms
of section 97 of the Criminal
In the absence of actual supply of a controlled drug by an individual there must be an identifiable act of participation, established by sufficiently relevant corroborative evidence. The Crown led evidence from two skilled witnesses in relation to their examination of Crown Labels 12, 13 and 14. Said labels were a quantity of money recovered from the Appellant's home. Whilst the skilled witnesses confirmed that there were trace amounts (measured in nanograms) of diamorphine on the Crown Labels, what the skilled witnesses could not say was when or how the said labels came to be contaminated. The skilled witnesses furthermore made various concessions in relation to the scientific empirical databases against which their conclusions were drawn.
The Crown did not cite or call any officers from the drugs squad to give evidence. There was no positive evidence led before the jury as an explanation as to the potential manner in which contamination could arise. No drug related paraphernalia or drugs were recovered from the Appellant's possession; nor was any lifestyle evidence led indicative of an individual being involved in drugs. Accordingly there was a hiatus in the Crown case.
In the foregoing circumstances there was no evidential foundation before the jury against which they could apply the evidence of the skilled witnesses. It was left for them to speculate as to the possible reasons why the Crown labels were contaminated. The mere possession of money was insufficient in law to establish that the Appellant was knowingly concerned in the supplying of drugs.
It is submitted that in the foregoing circumstances ... the learned Judge erred in law in repelling a submission made in terms of section 97 of the Act."
 Counsel for the appellant accepted that the discovery of such an amount of money gave rise to suspicions of some sort of criminality. But it did not indicate the kind of criminality, nor did it prove the charge of being concerned in the supplying of heroin. The Crown case was a circumstantial one. The evidence of the Crown expert Mr. Ronan did not assist in proving mens rea, for there was no evidence that the appellant knew that there was heroin on the bank-notes. The Crown could have led the evidence of a drugs expert to assist the jury when assessing the significance of the heroin on the bank-notes; but no such evidence was led. Even applying the guidance given in Al Megrahi v H M Advocate 2002 JC 99, 2002 SCCR 509, paragraphs  to , there was insufficient evidence to prove the crime charged. The necessary conjunction and coherence of testimony had not been achieved. The reasoning of the court in Salmon v H M Advocate 1999 J.C. 67, 1998 S.C.C.R. 740, at pages 754 to 757, might be of some assistance. One could not be concerned in the supplying of a controlled drug if one was not aware of being involved in the supplying of something. No drugs had been found in the present case. Small particles of heroin on bank-notes did not give rise to an inference of being concerned in the supplying of heroin. Drawing an analogy with Lord Justice General Rodger's reasoning in Salmon in relation to section 5(3), it could be argued that the "container" was the bank-note, but that it had not been proved that the appellant knew that there was anything in the container.
 The amount of
heroin in the present case was tiny: cf.
the flakes of cannabis in Tudhope v McKee
1987 S.C.C.R. 663. While the circumstances
in which the money had been found raised the taint of illegitimacy, the money
could have emanated from money-laundering, armed robbery, prostitution, or
illegal gambling, and not necessarily from the supplying of heroin. While therefore Mr. Ronan's evidence was
superficially attractive, it did not cast light on the appellant's state of
knowledge. The circumstances of the
present case were very different from those in Maguire v H M Advocate 2003 S.C.C.R. 758, where DNA was found on a
piece of clothing used in the crime.
Reference was made to paragraphs  to ,  to , and  to
 of Maguire. By contrast, in the present case the primary
question was whether there had been a crime at all (and, in addition, whether
the appellant had committed it). There
was no evidence establishing how or when the bank-notes had been
contaminated. No evidence had been led
from a drugs expert explaining how money might come to have traces of drugs on
it. Ultimately, the Crown had not met
the requirements of proof as set out in Salmon
in relation to either the actus
 Counsel invited the court to conclude that there was no proper basis for inferring the necessary mens rea. That element had to be proved from corroborated evidence. Mr. Ronan had conceded that the heroin involved was in tiny quantities, invisible to the eye, a concession which tended to point away from the inference of knowledge on the part of the appellant. The real question in the case was ultimately one of knowledge (a requirement emphasised by Lord Bonomy in the case of Salmon, cit. sup.) What was missing was proof of the nature of the operation; the part which the appellant was said to have played in it; and whether the appellant was knowingly involved in an operation. There was insufficient evidence. The defence submission of no case to answer in terms of section 97 should have been sustained.
 The Advocate Depute referred to the outline of evidence given in the trial judge's report. The Crown's position was that the case was a circumstantial one. Reference was made to Al Megrahi, cit. sup., paragraphs  to . It was necessary to look at the evidence as a whole. It was possible that there might be more than one interpretation of the evidence.
 In the present
case, there were several sources of evidence.
(i) The evidence that the appellant lived alone at the address of the
search. (ii) The evidence that a large
amount of money had been recovered at that address. (iii) The evidence that the money had been
secreted in three different locations.
(iv) The evidence about the method of secretion. The person hiding the money had gone to significant
lengths to hide it. (v) The appellant,
when stopped by the police, had in his possession bank receipts dated 21 and
 The Advocate Depute submitted that, taking all those factors into account, there was a sufficiency of evidence. The court could draw the necessary inferences that the appellant was concerned in the illegal supplying of diamorphine. In particular, the following inferences could be drawn: The money in the appellant's house had been placed there by the appellant. He had gone to significant lengths to hide the money from other people. He had no reason to hide legitimate money, as he had a bank account in his own name. The money therefore came from an illegitimate source. A further inference could be drawn, namely that the appellant knew that the money had been obtained by illegitimate means. From the other evidence led, it was open to the jury to infer that cash can be obtained through the sale of drugs, and cash obtained through the sale of drugs is illegitimate money. Drugs such as heroin are packaged and sold for cash. During that process, cash could become contaminated with heroin, either through handling both the drugs and the money, or through some other process. When considering the process of the supplying of drugs, it was open to the jury to infer that any money involved could be contaminated by the drugs involved in the transaction. Reference was made to pages 26 and 27 of the transcript of Mr. Ronan's evidence. It was an obvious inference that cash involved in the process of supplying an illegal drug could become contaminated with that drug, for example, during the handling of the drugs and the money, or if drugs were cut up, money might be laid down on the area where the drugs were cut. The money from each of the three secret locations was heavily contaminated with heroin, and it was reasonable to infer that the illegitimate means by which the money had been made related to the drugs trade.
 A further
inference which could be drawn was that the appellant knew that the money was
the product of the drugs trade. That
inference could be drawn from all the evidence, including evidence about the
amount of money; the diligent efforts
made to hide the money; and the
unusually heavy level of heroin contamination of the notes described by the
experts. A jury would be entitled on the
evidence to conclude that the appellant knew that the money related to drugs,
and that he was concerned in the illegal supplying of the drug heroin. Reference was made to Salmon v HM Advocate 1999 J.C. 67, 1998 S.C.C.R. 740, at page
756E-F. It was accepted that
circumstantial evidence could be open to more than one interpretation: for example, illegitimate money could have
its source in an armed robbery. However
the heroin contamination entitled a jury to conclude that the illegitimate
operation in which the appellant was involved was the supplying of illegal
drugs. The evidence had to be considered
in a two-stage process: first, it was
for the judge to assess the sufficiency of the evidence, and then it was for
the jury to decide whether they were satisfied of the appellant's guilt to the
standard beyond reasonable doubt. The
Crown therefore accepted that the hidden money could give rise to an inference
that the source of the money was some illegal operation other than drugs, but
the heroin contamination permitted the inference that the operation was the
illegal supplying of drugs and that the appellant knew that he was concerned in
the supplying of drugs. Illegal drugs
such as heroin were packaged and sold for money, and during that process the
money could become contaminated with the drug.
The evidence was open to other possible interpretations, but the
guidance in Al Megrahi v HM Advocate, cit. sup., allowed the jury to draw the inference they did. The jury did not have to define the
appellant's precise role. It was open to
the jury to infer that the appellant was a banker or a collector in the
operation for the supplying of heroin.
As was made clear in Kerr v HM
Advocate 1986 J.C. 41, 1986 S.C.C.R. 81, at page 87, being concerned in the
supplying of drugs included all sorts of activities at the centre and at the
fringes of drug-dealing. A financier, or
someone holding the proceeds of sale of illegal drugs, was involved in the
supplying of drugs: cf.
 The defence relied upon Salmon v HM Advocate, cit. sup., and the dicta of Lord Bonomy at pages 772 to 773. But in the present case, one could infer the appellant's knowledge of being concerned in the supplying of drugs from the forensic evidence, the quantity of money involved, and the manner in which it was hidden. The Crown had accordingly led sufficient circumstantial evidence. The trial judge was correct to repel the defence submission in terms of section 97.
"[I]t is of the very nature of circumstantial evidence that it may be open to more than one interpretation and that it is precisely the role of the jury to decide which interpretation to adopt."
That case concerned circumstantial evidence supporting or
confirming direct eye-witness evidence.
 Accordingly we accept the Advocate Depute's approach, namely that circumstantial evidence may give rise to a number of inferences, but if at least one inference is indicative of guilt of the crime charged, then there is a case to answer which should go to the jury.
 In the present case, the crime charged is being concerned in the supplying of heroin contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. Proof of that crime requires corroborated evidence (a) that the accused knew that he was playing some part in an enterprise which had as its objective the supplying of a material or substance to another or others; and (b) that the material or substance was in fact the controlled drug heroin: cf. Salmon v HM Advocate, cit. sup. It is a defence if the accused, on the evidence, although knowing that he was involved in some sort of enterprise the objective of which was the supplying of a material or substance to another or others, nevertheless did not know what was being supplied, or did not know or suspect, or have reason to suspect, that the material or substance being supplied was a controlled drug: section 28 of the Misuse of Drugs Act 1971; Henvey v HM Advocate 2005 SCCR 282. By contrast, it is no defence if the accused thought that he was involved in the supplying of one type of controlled drug, such as temazepam, and it eventually transpired that the drug in question was another type of controlled drug, such as ecstasy: section 28(3)(a) of the 1971 Act and the observations of Lord Justice General Rodger in Salmon.
"... section 4(3)(b) was purposely enacted in the widest terms and was intended to cover a great variety of activities both at the centre and also on the fringes of dealing in controlled drugs. It would, for example, in appropriate circumstances include the activities of financiers, couriers and other go-betweens, lookouts, advertisers, agents and many links in the chain of distribution ..."
Thus knowingly acting as a custodier of, or a banker for, money used in heroin-dealing activities will amount to being concerned in the supplying of heroin.
 Against that background, if it were possible in the present case to draw the inference from the circumstantial evidence that the appellant knew that the bank-notes which he had secreted in his home were the product of, or associated with or used for the purposes of, an enterprise which had as its objective the supplying of a material or substance (ultimately proved by the Crown to be heroin) to another or others, there would in our view be sufficient corroborated evidence in law to have allowed the case to go to the jury. It would not matter that competing inferences could be drawn, suggestive of innocence or of involvement in crimes other than that charged. It would be the jury's function to decide what interpretation of the evidence to adopt, and whether they were satisfied beyond reasonable doubt of the appellant's guilt of the crime charged.
 The Advocate Depute was, in our view, correct in her submission that the amount of money found, and the way in which it was hidden, together with the evidence relating to the appellant's use of a bank account in his own name, was ample circumstantial evidence from which the jury would be entitled to infer that the money thus secreted had come from an illegitimate source, and that the appellant was well aware of that fact.
 We have more difficulty, however, with the next stage, namely the drawing of an inference that the appellant knew that the bank-notes secreted were the product of, or associated with or used for the purposes of, an enterprise the objective of which was the supplying of a material or substance to another or others.
 Having carefully considered the evidence led by the Crown, it is our view that there was no evidence from which such an inference could properly be drawn. As noted in paragraphs  and  above, apart from the heroin contamination on the bank-notes, no illegal drugs, traces of illegal drugs, tick-lists, or paraphernalia normally associated with illegal drugs were found in the appellant's home. That should be contrasted with the circumstances in Salmon, where a search of the accused's home revealed not only a significant sum of money in cash, but also other items indicative of participation in a supplying enterprise - and moreover, in that particular case, participation in a drugs-supplying enterprise. For in Salmon, not only was a significant sum of money in cash found in the accused's home, but also other items indicative of participation in such an enterprise, namely bags in which drugs might be packaged, bulking-out or cutting agents, and books on the subject of drugs.
 Quite apart from what was found in the appellant's home, there was in the present case no evidence indicating participation in a supplying enterprise either from surveillance witnesses or from interviewing police officers (the trial judge having ruled the appellant's police interview inadmissible: see paragraph  above). Nor was there any evidence to suggest that the bank-notes themselves, by their physical appearance or feel or odour or some other feature, would have alerted someone such as the appellant to the fact that they were contaminated with something which made it clear that they were the product of, or associated with or being used for the purposes of, an enterprise the objective of which was the supplying of some material or substance to another or others (rather than, for example, an enterprise the objective of which was the theft of money from, or the defrauding of, or the provision of illegal services to, another or others).
assuming for present purposes that the evidence of the forensic scientists Mr.
Ronan and Mr. Hickson was sufficient, without further evidence from a drugs
expert, to establish that the bank-notes had been in close proximity to heroin
in the course of illegal drug-dealing activities, there was in our view a lack
of evidence from which the inference could be drawn of the appellant's
knowledge that he was in some way a participant in an enterprise which had as its objective the supplying of
some material or substance to another or others. It follows that any inferences which
could properly be drawn from the circumstantial evidence did not, in our
opinion, extend to an inference of knowledge on the part of the appellant
sufficient to establish the mens rea and
we have reached the view that the defence submission in terms of section 97 of
the Criminal Procedure (