APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Eassie Lady Paton Lord Hardie	[2009] HCJAC 71 Appeal No: XC302/06 XC320/06 XC366/06 OPINION OF THE COURT delivered by LORD HARDIE in NOTE OF APPEAL AGAINST CONVICTION by (FIRST) JAMES LOWRIE (SECOND) WILLIAM McDOUGALL McDONALD (THIRD) MUSHTAQ AHMED Appellants; against HER MAJESTY'S ADVOCATE Respondent: ______

First Appellant: Alonzi et Mason; McClure Collins

Second Appellant: Lamb QC; Paterson Bell

Third Appellant: Shead; Capital Defence Lawyers

Respondent: Wolffe QC; Crown Agent

28 August 2009

Background

[1] On 6 February 2006 each of the appellants appeared along with other co‑accused for trial at Glasgow High Court in respect of an indictment including

inter alia the following charge:-

"(1) Between 16 July 2003 and 25 January 2005, both dates inclusive [at various specified locations in Scotland and England], and elsewhere in the United Kingdom, you MUSHTAQ AHMED, JAMES LOWRIE, WILLIAM McDOUGALL McDONALD, ROBERT THOMSON, DARYL ROBERTS, NEIL GAMBLE KIRKLAND, JOSEPH NOON and JOHN ANGUS GORMAN while acting along with Samuel Robert Stewart Balmer, a prisoner of HM Prison Kilmarnock and others meantime to the prosecutor unknown, did transfer or remove criminal property, namely various sums of money amounting in cumulo to £435,171 or thereby

CONTRARY to the Proceeds of Crime Act 2002 section 327(1)(d) or (e)"

[2] On 5 April 2006 the jury convicted each of the appellants under deletion of various locations and named individuals and under substitution of a specific sum of money in respect of each appellant. The first named appellant was convicted of charge 1, restricted to events between 30 September and 9 December 2003, involving a sum of £69,995. The second and third named appellants were each convicted of this charge restricted to events between 16 and 23 July 2003 involving a sum of £100,000.

Grounds of Appeal

[3] Each appellant relied upon an alleged error by the trial judge in admitting scientific evidence concerning the examination of bank notes. Although the note of appeal in each case expressed the ground of appeal in different terms, the point was

identical. In the note of appeal on behalf of the first appellant it was expressed in the following terms:

"The learned trial judge erred in repelling an objection to the admissibility of forensic evidence as to the condition of bank notes that were not produced in court and where no opportunity was given to the defence to examine the bank notes.

The bank notes were seized by the police on 9 December 2003. They were examined by the Crown forensic scientists sometime between 22 and 27 January 2004. The bank notes were then returned to the police who counted them on 9 February 2004 and lodged them with a bank, thereby causing the bank notes to be released into general circulation.

The evidence of the Crown forensic scientists was that the bank notes were contaminated with controlled drugs. Accordingly, the condition of the bank notes was fundamental to the proof of the Crown case. In these circumstances the bank notes should have been produced in court, or alternatively, the defence should have been given an opportunity to examine them."

This was the sole ground of appeal on behalf of the first named appellant and is hereinafter referred to as "the common ground of appeal". The note of appeal on behalf of the second named appellant contained an additional ground of appeal alleging a misdirection of the jury by the trial judge in relation to the question of concert. This ground of appeal also featured as the fourth ground of appeal on behalf of the third named appellant who relied upon two further grounds of appeal namely (a) that the trial judge erred in refusing to uphold the submission of no case to answer made on behalf of this appellant at the close of the Crown case and (b) that the trial judge erred in refusing to uphold submissions made on behalf of this appellant that the charge libelled had not been proved and that the appellant had been charged under the wrong section of the Proceeds of Crime Act 2002 ("the Act").

Proposed additional Grounds of Appeal

[4] Prior to the commencement of the hearing, counsel for the third named appellant sought leave to argue additional grounds of appeal which had been tendered to Justiciary Office the previous week and intimated to the Crown two days prior to the hearing of the appeal. Although counsel for the third named appellant had been instructed in the case for more than two years, he offered no explanation for tendering the additional grounds at this late stage. Rather counsel stated that in proffering the additional grounds he was "trying to assist the court". Senior counsel for the second named appellant tendered proposed additional grounds of appeal which had only been intimated to the Crown that morning and had been drafted in view of the proposed additional grounds on behalf of the third named appellant.

[5] In opposing the motion, the Advocate depute reminded us that the trial had concluded in April 2006 and the notes of appeal had been lodged in July and August 2006. If the additional grounds of appeal were allowed and the hearing proceeded, the trial judge would be precluded from commenting on the additional grounds of appeal. Alternatively, the trial judge could be invited to comment on the proposed additional grounds of appeal, in which case the hearing would necessarily be adjourned.

[6] Rule 15.15(1) of the Act of Adjournal (Criminal Procedure Rules) 1996 provides:

"On cause shown, the High Court may grant leave to an appellant to amend the grounds of appeal contained in the note of appeal."

As we have observed, counsel for the third named appellant failed to show any cause why we should grant leave to amend the grounds of appeal in his case and we did not consider that the reason tendered by senior counsel for the second named appellant was sufficient cause. Accordingly we refused leave to each of these appellants to amend their grounds of appeal. We respectfully agree with the opinion of Lord Carloway in Gordon v HMA [2009] HCJAC 52 concerning the procedure in solemn criminal appeals. That procedure requires practitioners to give full consideration to the possible grounds of appeal at the stage of drafting the note of appeal, thereby ensuring that the sheriff or trial judge is enabled to provide a comprehensive report on the issues to be addressed before the Appeal Court. If the spirit and intention of the procedure is observed, amended grounds of appeal will be unnecessary in all but the most exceptional of cases.

Submissions on behalf of the first named appellant

[7] Counsel submitted that the £69,995 specified in the charge of which the appellant was convicted related to a sum of money recovered from the appellant on 9 December 2003. It was necessary for the Crown to prove that this money was criminal property as defined by section 340 of the Act which is in the following terms:

"Property is criminal property if-

(a) it constitutes a person's benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly), and

(b) the alleged offender knows or suspects that it constitutes or represents such a benefit."

In terms of these provisions the Crown must establish that the money constituted the appellant's benefit from criminal conduct and that the appellant knew that it represented such a benefit. The appeal was directed to the first of these issues, namely, whether the money constituted a benefit from criminal conduct. The Crown had sought to prove this by leading evidence of a former employee of Mass Spec Analytical Ltd ("MSA"). The bank notes recovered from the appellant were not produced in court and no opportunity was afforded to his professional advisors to have them independently examined. The factual position was that on 9 December 2003 the bank notes were recovered from the possession of the appellant and between 22 and 27 January 2004 MSA examined them. On 9 February 2004 MSA returned the bank notes to the police who lodged them with a bank causing them to be released into general circulation. Prior to doing so, the police did not consult the appellant or his legal advisors. As a result of the police action, the bank notes were no longer available as a production at the trial of the appellant or for examination by or on his behalf. The actions of the police officers apparently followed the practice and procedure of Merseyside Police Force at that time.

[8] Counsel submitted that the test was not whether there had been an absence of opportunity to examine the bank notes on behalf of the appellant, but rather whether that absence had resulted in material prejudice to the appellant. (Anderson v Laverock 1976 JC 9). The contamination of the bank notes in the present case was a crucial factor which the Crown had to establish. While it was accepted that the police officers had followed normal procedure in Merseyside, their actions had precluded the appellant and his advisors from having any opportunity to have the notes examined by an independent expert. The results of the examination by MSA were known before the money had been returned to circulation. Although the appellant was released by the police without charge, it must have been apparent that there was a significant risk that proceedings would be taken against the appellant following the results of the forensic examination of the bank notes by MSA. The Crown had deprived the appellant and his advisors of access to crucial evidence and it was not known what an independent examination of the bank notes would have produced. The appellant had been deprived of the opportunity to have them examined; that had resulted in prejudice to the appellant, particularly in the present case where the condition of the money was fundamental to the Crown case. The evidence of contamination of the bank notes was the most significant single piece of evidence in the case.

Submissions on behalf of the second named appellant

[9] Counsel for the second named appellant adopted the submissions on behalf of the first named appellant but he went further in one respect. In his Report to this court the trial judge stated at page 12:

"The question then became whether material prejudice had been demonstrated. While I was prepared to accept that the evidence was important and material evidence, it was not at all clear what examination of the money by the defence would have yielded. It was not suggested that in the absence of re‑examination by the defence expert of the bank notes no opinion of any kind could be expressed by the defence expert. I noted that Mr Fergie [an expert instructed on behalf of all accused in respect of other bank notes] had not re‑examined the bank notes which were available. I noted the observations in his Report and the evidence of Mr Ronan...

In these circumstances I concluded that the defence had failed to demonstrate that the failure to afford an opportunity to the defence to examine the money recovered in the Vectra in Bradford gave rise to material prejudice and I repelled the objection."

Senior counsel for this appellant submitted that that passage demonstrated that the trial judge had applied the wrong test. The proper test was whether it was possible to exclude prejudice (Anderson v Laverock; Sinclair v HMA 2005 1 SC (PC) 28 at paragraph 35). By applying the wrong tests the trial judge had wrongly repelled the objection to the admissibility of the evidence. In the present case it was not possible for the court to conclude that the appellant's defence had not been prejudiced by what had happened in this case. If the money had been available, expert analysis of the bank notes on behalf of the appellant would have been sought. Senior counsel accepted that the analysis of the bank notes already carried out on behalf of the police was necessarily destructive of the portion of the bank notes analysed and that re-analysis of a different portion might give a different analytical result, as was suggested in the report prepared by Mr Fergie on behalf of all accused in respect of other bank notes recovered. As he had not been involved in the trial, senior counsel could not explain why Mr Fergie had not been asked to analyse the available bank notes. If the evidence of contamination of bank notes had been excluded, there would have been no evidence to establish that the money in the possession of the appellant was criminal property at the time it was removed from Scotland or transferred. Alternatively, as the appellant had given an alternative explanation for his possession of the money, the absence of the evidence of contamination would have increased the likelihood of the jury favouring the appellant's explanation.

[10] As regards the other ground of appeal on behalf of this appellant, senior counsel advised us that the appellant no longer insisted upon it.

Submissions on behalf of the third named appellant

[11] Counsel for the third named appellant also adopted the submissions on behalf of the first named appellant in relation to the common ground of appeal. He further submitted that the requirement of equality of arms in Article 6 of the European Convention on Human Rights complemented Anderson v Laverock. In the present case there was no dispute that there had been a loss of opportunity of examination of the bank notes recovered in England. The question was whether that had resulted in an unfair trial or a miscarriage of justice. A defence expert, Mr Fergie, had been instructed in the case and had scrutinised the methodology adopted by MSA in the analysis of bank notes recovered in Scotland, which had been retained by the police as productions. For reasons explained by the trial judge, Mr Fergie did not re-analyse the bank notes but commented favourably upon the methodology used by MSA. Nevertheless, the failure to produce the bank notes recovered in England may have resulted in unfairness. If they had been produced and analysed on behalf of the various accused, the re-examination might have provided the accused, including the third named appellant, with a basis for cross examination of the expert witness adduced by the Crown. The question for the court was whether the deprivation of the opportunity to re-examine the bank notes deprived the appellant of a fair trial. Counsel invited us to conclude that it did and as a consequence to quash the conviction.

[12] The second and the third grounds of appeal could be considered together as they were complementary. The facts are set out in the trial judge's Report. On 16 July 2003 two of the co-accused (Gorman and McDonald) left Gorman's house in Kilwinning and drove to Bradford where they met the third named appellant in the car park of a public house. The third named appellant shook hands with and hugged each of the co-accused and thereafter the three men drove off in convoy. On 22 July 2003 McDonald drove to a location in Kilwinning where Gorman's car was parked. Thereafter they drove away in convoy and later stopped when McDonald got into the passenger seat of Gorman's car. McDonald used a telephone kiosk at 1036 hours and at 1039 hours drove south in his car. He stopped in England at a service station on the M62 where he met a man who gave him a sports bag which he put into the boot of his car. Thereafter McDonald drove to a public house in Bradford and from there to a street where he stopped behind a motor vehicle from which the third named appellant alighted. The third named appellant got into McDonald's car and the two vehicles drove in convoy to another location in Bradford, where they stopped. McDonald got out of the car and went to the boot of the car. At that point English police officers arrested the third named appellant, McDonald and the driver of the other car. Counsel submitted that the charge involved either the transfer of criminal property or the removal of criminal property from Scotland. There had been no physical hand over of the bag containing the money from McDonald to the third named appellant. The third named appellant had remained in the passenger seat of McDonald's car when McDonald went to the boot. Moreover, it was clear that some of the money at least had not been removed from Scotland because McDonald had received it in England at the service station on the M62. Counsel further submitted that even if the analysis of the bank notes was sufficient to establish that the money was the proceeds of drug trafficking, that analysis had no relevance to the question of the knowledge of the third named appellant that the money was the proceeds of drug trafficking. (Smith v HMA 2008 SCCR 255).

[13] Counsel further submitted that the Act created a series of offences including the offence of possession of criminal property (section 329). In these circumstances, even if there had been a transfer to the third named appellant, he could not be guilty of the crime charged as he was the transferee, although he could be convicted of a contravention of section 329 of the Act. Furthermore, the doctrine of concert was not appropriate in the context of the offence of transferring criminal property but even if a transferee could be guilty on an art and part basis, that did not apply in this case as there had been no transfer to the third named appellant.

[14] Apart from the offence of transferring criminal property (section 327(1)(d)), the charge alleged removal of criminal property from Scotland contrary to section 327(1)(e). This latter offence would have been committed as soon as McDonald drove across the border with some of the money ultimately recovered by the police, assuming it was criminal property. On the evidence, he collected another bag of money in England. On any view the Crown had failed to prove that that money had been removed from Scotland, even if it was criminal property. Although counsel's primary submission was that concert should not apply to the statutory offences, his alternative submission was that even if it did apply, there was no basis upon which one could infer that the third named appellant was aware that any money had been removed from Scotland.

[15] The final submission related to the fourth ground of appeal in which it was alleged that the trial judge misdirected the jury concerning concert. It was suggested that the trial judge failed to alert the jury to the possibility that they could acquit the appellant of the charges even if they concluded that concert applied. In other words, he omitted to give a clear direction that in the event of their concluding that concert applied in this case, they did not require to convict all of the accused. Moreover, when the jury returned for further directions concerning concert, the trial judge failed to address the question raised by the foreman. As the Crown case depended upon the application of the law of concert, the misdirections were material and amounted to a miscarriage of justice. For all of these reasons, counsel for the third named appellant invited us to quash the conviction.

Submissions by the Advocate depute

[16] The Advocate depute advised us that the co-accused Gorman was the central figure in the case. There was ample evidence from which the jury could infer that Gorman was laundering the proceeds of drug dealing and in that regard was engaged in transferring the proceeds or removing them from Scotland. It was not disputed that the first and second named appellants were assisting Gorman and that they were involved on an art and part basis in the transfer or removal of that property. It was clear from the judge's Charge that he directed the jury that there was insufficient evidence to convict the third named appellant unless the jury were satisfied that he was acting in concert with Gorman and McDonald. The submission that concert does not apply to the statutory offences libelled in this case was ill-founded (Criminal Procedure (Scotland) Act 1995 section 293; Reid v HMA 1999 SCCR 19). The analogy with section 4(3)(b) of the Misuse of Drugs Act 1971 was ill founded. In that provision concert was necessarily excluded because the phrase "concerned in the supplying" was so broad that there was no room for art and part guilt (HMA v Hamill 1998 SLT 1260; Salmon v HMA 1999 JC 67). Section 330 of the Act created the offence of failure to disclose information when a person knows or suspects or has reasonable grounds for knowing or suspecting that another person is engaged in money laundering. Section 340(11) of the Act defines money laundering as including an act which constitutes an offence under section 327 or which constitutes "aiding, abetting, counselling or procuring" the commission of an offence under section 327. The Advocate depute submitted that it would be a strange result if Parliament intended that the failure to disclose such information would be criminal, where there had been art and part guilt in the commission of an offence under section 327, but did not intend art and part guilt to apply to an offence under section 327 itself. Furthermore, the Act did not contain any specific reference to justify the exclusion of section 293 of the Criminal Procedure (Scotland) Act 1995. The Advocate depute also submitted that there was clearly an overlap between the provisions of sections 327 and 329, which was concerned with possession. Section 327(1)(a) and (b) each involved possession of property, but it was for the Crown to decide according to the circumstances of each case which was the appropriate section to specify in an indictment.

[17] In response to the submission that the Crown required to establish that the property was criminal property as defined in section 340(3) of the Act, the Advocate depute accepted that it was essential to prove that the property constituted benefit from criminal conduct or represented such a benefit, and that the alleged offender knew or suspected that it constituted or represented such a benefit. The language of the subsection was such that the Crown did not require to prove that the benefit related to a specific crime or a specific type of criminal conduct. In these circumstances it would surprising if the Crown were placed in a more difficult position where, as here, the Crown had presented the case on the basis that the money was the proceeds of drug dealing. In such circumstances where the Crown can establish that the benefit is derived from a particular type of conduct in satisfaction of its burden of proof in terms of section 340(3)(a), it is sufficient if the Crown can then establish that the alleged offender knew or suspected that the money represented a benefit from criminal conduct generally. Smith v HMA did not apply because that case involved an alleged contravention of section 4(3)(b) of the Misuse of Drugs Act 1971, where it was essential to link the bank notes to the activity of being concerned in the supplying of controlled drugs (paragraph 22). In the present case it was sufficient for the Crown to establish knowledge on the part of the appellants that the source of the money was some criminal activity.

[18] In relation to the common ground of appeal based on the admission of the evidence of the analysis of the bank notes, the issue before the court had focused on whether there had been material prejudice. In that regard, the criticism of the trial judge by senior counsel for the second named appellant was misplaced. It was clearly for each appellant to satisfy the trial judge that the admission of the evidence would be unfair. In Anderson v Laverock the court had considered that question and decided that it could not conclude that there had not been material prejudice. Whether there has been material prejudice is a question of facts and circumstances in each case. In the present case the crucial fact was that the defence expert did not examine those bank notes which were available for examination. Moreover, his approach had been supported by the Crown expert. Thus there was a body of evidence as to what had been done with bank notes available to the defence, and it could not be said that any of the appellants had suffered material prejudice by the non-production of the bank notes recovered in England. The first named appellant had not been arrested on petition warrant until September 2005 which was long after the occurrence of the events in question.

[19] The Advocate depute submitted that there was a sufficiency of evidence which entitled the trial judge to repel the submission of no case to answer made at the close of the Crown case. The trial judge in his Report narrated the circumstances of the meetings on 16 and 22 July 2003. The jury could infer that there was a pre-arranged meeting in a car park on 16 July 2003. Moreover, it was clear from their actions that each of the three accused present at the meeting knew each other. In his police interview the third named appellant made it clear that he knew Gorman was from Scotland. As far as the meeting on 22 July was concerned, the jury could infer that this was another pre-arranged meeting. They could take into account the fact that the third named appellant said he was giving advice as to how to send money abroad outwith the banking system. In short, the Advocate depute submitted that there was sufficient evidence to entitle the jury to conclude that the third named appellant was engaged in the common criminal purpose of transferring or removing criminal property. Finally, under reference to passages in the trial judge's Charge to the jury the Advocate depute submitted that there was no substance in the criticism of the Charge in relation to the question of concert.

Discussion

[20] We are grateful to counsel for their careful and helpful submissions in these related appeals. We consider that it is appropriate in the first instance to determine the common ground of appeal because that determination will have the effect of disposing of the appeal on behalf of each of the first and second named appellants.

[21] Although counsel for the second named appellant submitted that the test to be applied by the trial judge was whether it was possible for the court to exclude prejudice in circumstances where an item was not, and had not been. available for examination on behalf of the appellant before police officers disposed of the item, it became apparent that he agreed that the appropriate test was contained within the opinion of the court in Anderson v Laverock. Counsel for the second appellant also sought to place reliance upon the decisions in Sinclair v HMA and Holland v HMA 2005 1 SC (PC) 3 but we do not consider that either of these decisions are of assistance in the present case. They were concerned with alleged breaches of Article 6 of the European Convention on Human Rights, whereas the issue in the common ground of appeal relates to the question whether the trial judge erred in the admission of evidence with resulting prejudice to each of the appellants. Moreover in support of his submission that the trial judge had applied the wrong test, senior counsel for the second named appellant relied upon the following passage from Anderson v Laverock at page 16:

"...we cannot say that the deprivation of the opportunity to have [the productions] examined before disposal by or on behalf of the appellant did not result in substantial prejudice to him."

That passage should be read in its context and in the context of the opinion as a whole. In that case the appellant had been found in possession of 26 salmon or sea trout weighing between 10 and 16 pounds in circumstances giving rise to suspicion that he had obtained the fish as a result of committing an offence against the provisions of section 1 or 2 of the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951, more particularly in respect that he was in possession of the fish on a date within the close season for salmon fishing in the River Tweed and the salmon were cleek marked. It was essential for the Crown to establish that there were present on the fish, or absent from the fish, marks which would indicate beyond reasonable doubt that the fish had not been caught by rod and line. An inspection of the fish on behalf of the prosecution disclosed that there were no marks on the mouth of the fish consistent with them having been taken by rod and line, but all 26 fish were marked with large holes and tears of the type made by cleeks or gaffs. The fish were then destroyed. The appellant was not advised that the fish would be destroyed, nor was he given any opportunity to examine the fish himself or to have them examined by an expert on his behalf prior to their disposal. The opinion of the court delivered by Lord Justice Clerk Wheatley recognised that in the interests of justice the defence, wherever possible, should have the same opportunity as the prosecution to examine a material and possibly contentious production. Nevertheless the court observed that the fact that such an opportunity had not been afforded to the defence is not per se a ground for quashing a conviction (page 14). In rejecting a submission by the Advocate depute that the only effect of failing to give the defence an opportunity of examining a production was possibly to affect the quality of the evidence of the prosecution witnesses who gave evidence about the appearance of the production, the court observed:

"In our opinion it goes further than that. It becomes a question of whether prejudice was suffered. The questions then arise: 'Was there prejudice?' and 'If so, was it of such materiality as to cause such an injustice that the ensuing conviction falls to be quashed?' The materiality of the production will always be an important factor. It is impossible to lay down hard and fast rules to cover every possible case. Each case will depend on its own facts."

We respectfully agree with these observations and conclude that the appropriate test is whether there was prejudice to the appellants of such materiality that an injustice was caused resulting in the necessity to quash the conviction. In that case the marks or absence of marks on the fish were crucial to establishing the Crown case and the passage relied upon by senior counsel for the second named appellant should be construed in that context.

[22] By way of contrast, while the evidence of the extent to which the bank notes were contaminated with drugs was undoubtedly a significant adminicle of evidence, it was not crucial to establishing the Crown case that the bank notes were criminal property. Moreover, the report of the trial judge in relation to the appeal by the third named appellant contains the following passage at pages 9-11:

"In the course of the trial objection was taken to the evidence of the forensic scientists from MSA giving evidence of the contamination levels on the notes recovered in England. As it happened, the question first arose in relation to the co-accused James Lowrie, who was represented by Mr Alonzi. In the course of the evidence of Crown witness No 143 Neil Ronan, a former employee of MSA, Mr Alonzi took objection. I repelled the objection and allowed the evidence to be led. Later, in the course of the evidence of Crown witness No 139 Matthew Hickson, Mr Thomson QC, on behalf of the appellant, and Miss McMenamin QC on behalf of the co-accused McDonald took the same objection. Again I repelled the objection.

In the course of the discussion on the objection I was given certain information about an expert instructed by the defence, Mr Fergie. The solicitors acting for the co-accused John Gorman instructed a defence forensic scientist in relation to the work of MSA. In recognition that sanction of Scottish Legal Aid Board would not be granted for multiple forensic examinations, there was an agreement that those acting for Mr Gorman would share information relating to the work of their expert with those representing the other accused, including the appellant. In the event, the defence forensic scientist did not examine the bank notes recovered in Scotland, which were available for examination. He did carry out a review of the methodology of MSA. His report was lodged as production 6 for Mr Gorman. Mr Fergie did not give evidence.

In cross examination by Mr Thomson on behalf of the appellant, Mr Ronan, the forensic scientist who had formerly been employed by MSA, said that if he had been instructed by the defence to give an opinion he would not have carried out the test again. While there would be areas of each bank note which could be tested again, the exercise would not be particularly useful because he would expect to find less contamination as time went by. This would be the result of degradation. Rather, he would have reviewed the original exercise carried out by the forensic scientists and satisfied himself as to their methodology. He would have examined their data and notes. This appeared to be consistent with certain observations of Mr Fergie, the defence expert, in the summary to his report where he stated that, although not an unequivocal method of analysis, the analytical technique used did give an almost unambiguous identification. In addition, Mr Fergie wrote:

'This is a destructive method of analysis. Consequently, if reanalysis is required a different piece of the bank note would be required which might not give the same analytical result.'

I noted that Mr Fergie himself did not examine the bank notes which had been recovered in Scotland and which were available for examination, but did review the methodology of MSA."

In considering whether material prejudice had been demonstrated the trial judge observed at page 13 of his report:

"While I was prepared to accept that the evidence was important and material evidence, it was not at all clear what examination of the money by the defence would have yielded. It was not suggested that in the absence of re‑examination by the defence expert of the bank notes no opinion of any kind could be expressed by the defence expert. I noted that Mr Fergie had not re‑examined the bank notes which were available. I noted the observations in his report and the evidence of Mr Ronan, quoted above.

In these circumstances I concluded that the defence had failed to demonstrate that the failure to afford an opportunity to the defence to examine the money recovered in the Vectra in Bradford gave rise to material prejudice and I repelled the objection."

[23] In our view, where the defence seek to exclude evidence of a scientific, technical, or indeed merely visual, examination of an article which has not been available to the defence for examination, it is initially incumbent upon the defence to outline the basis upon which the court could conclude that such failure resulted in material prejudice to the defence. The representatives of an accused are in an advantageous position in the sense that they are, or should be, aware of the nature and extent of the evidence likely to be adduced by the Crown as well as particular facts and circumstances peculiar to the accused and the preparation of his defence. Taken together, that information should enable such representatives to advise the court of the apprehended, or established, prejudice to the accused. In contrast, the Crown will be unaware of issues peculiar to the accused and the preparation of his defence. Once the issue of prejudice has been raised, it is for the trial judge in all the circumstances to evaluate that issue and to form his assessment of the materiality of any prejudice which may have arisen.

[24] In the present case it is clear from the trial judge's report that he asked himself the correct question, namely whether material prejudice had been demonstrated. It is also clear that in answering that question in the negative the trial judge took into account the whole facts and circumstances of the case as provided to him. In light of the factual position outlined in the trial judge's report, it is difficult to see how he could have reached any conclusion other than that there was no material prejudice caused in this case by the non-availability of the bank notes recovered in England. As the trial judge observes, the Crown expert and the expert retained on behalf of the co-accused Gorman and made available to the appellants concurred in the view that there would be no advantage in the reanalysis of bank notes which had been subjected to the procedures of MSA. Furthermore they agreed that the appropriate course for the defence expert to adopt was to consider the methodology, data and notes of the original examination. That is precisely what Mr Fergie did in relation to the bank notes which were recovered in Scotland and which were available to the defence for re-examination, if required. The absence of the bank notes recovered in England did not preclude a similar exercise by Mr Fergie in respect of the analysis of these notes by MSA. In these circumstances we are satisfied that it cannot be maintained that the failure to make available for re-examination on behalf of the appellants the bank notes recovered in England resulted in any material prejudice to any of the appellants in this case. Accordingly we reject the common ground of appeal.

[25] As regards the second ground of appeal on behalf of the third named appellant relating to the sufficiency of evidence to establish that this appellant was involved in the transfer, or removal from Scotland, of criminal property, it is appropriate to consider the question of transfer and removal separately, as each of these activities constitutes an offence. In terms of section 327(1)(d) of the Act a person commits an offence if he transfers criminal property. What amounts to a transfer is not defined in the Act and the word should accordingly be given its ordinary meaning. Thus the transfer of criminal property involves the passing of criminal property from one person (the transferor) to another (the transferee). The factual position in this case has been outlined above in the submissions on behalf of the third named appellant, from which it is clear that there was no physical transfer of the money brought to Bradford by the co-accused McDonald from McDonald to the third named appellant. The receipt of the criminal property by the transferee is a necessary part of the actus reus of the statutory offence of transferring criminal property. In the present case, at least as far as the third named appellant is concerned, there was insufficient evidence to establish that the crime of transferring criminal property had been proved against him. However, that does not mean that the trial judge should have upheld the submission of no case to answer; the trial judge also had to consider whether there was sufficient evidence to entitle the jury to convict the third named appellant of removing criminal property from Scotland, that being an offence which was also included within the charge.

[26] Whether the third named appellant is guilty of the statutory offence of removing criminal property from Scotland must depend upon the application of the law of concert. We have considered the competing submissions in that regard.

[27] We recognise that there may be difficulties with the concept of a transferee being guilty on an art and part basis of the crime of transferring criminal property because he is a necessary part of the actus reus of the crime and it is difficult (cf. section 329(1)) to imagine circumstances in which it will be necessary for the Crown to invoke the law of concert against a transferee when there is evidence of a completed transfer. The same reservations also apply to the transferor. In the event it is unnecessary for us to express any concluded view upon this matter because in this case there was no evidence of a completed transfer and the crime of transferring criminal property was not proved.

[28] However, we would not wish our comments to be misunderstood as suggesting that the law of concert can have no application generally to any statutory offences created by the Act. It seems to us that, depending upon the circumstances, others apart from the transferor and transferee may be guilty on an art and part basis of transferring criminal property. As a general proposition, we agree with the submissions of the Advocate depute that the effect of section 293 of the Criminal Procedure (Scotland) Act 1995 is to apply the law of concert to statutory offences unless the statutory provision creating the offence is expressed in terms that necessarily exclude art and part guilt. An example of such a provision is section 4(3)(b) of the Misuse Drugs Act 1971 (HMA v Hamill; Salmon v HMA). Nothing in the terms of section 327 or any other provisions of the Act indicates that Parliament intended to exclude, as a generality, the application of the law of concert from offences created by the Act. Indeed as, the Advocate depute submitted, Parliament enacted in section 330 the commission of an offence of failure to disclose information where a person knew or suspected or had reasonable grounds for knowing or suspecting that another person was engaged in "money laundering". In section 340(11) "money laundering" is defined as including "aiding, abetting, counselling or procuring" the commission of an offence under, among other sections, section 327. Thus the inclusion of art and part guilt in the commission of an offence under section 327 within the definition of "money laundering" supports the conclusion that Parliament did not intend, as a generality, to exclude the possibility of art and part guilt from the statutory offences created by the Act - at least, from the offences created under section 327. Moreover there is nothing in the language of section 327 or of the Act or in the nature of the offence which precludes the application of the law of concert to the offence of removing criminal property from Scotland.

[29] Having thus held that the law of concert may be applied to the statutory offence created under section 327(1)(e) of the Act of removing criminal property from Scotland, the remaining issue for us to consider is whether there was sufficient evidence to entitle the jury to convict the third named appellant of this offence on an art and part basis and thus to constitute a case to answer. In his report the trial judge summarises the evidence implicating the third named appellant from which the jury could infer that he was knowingly involved in the removal from Scotland of the money that he knew or suspected to be a benefit from criminal conduct.

[30] The co-accused Gorman was shown to be the central figure in the case. On 16 July 2003 the third named appellant had a meeting with the co-accused Gorman and McDonald in Bradford. The manner of their greeting suggested that they were friends. Gorman and McDonald had travelled from the west of Scotland for the meeting and in his interview with the police the third named appellant disclosed that he was aware that Gorman was from Scotland. That meeting must have had a purpose. Six days later the third named appellant met McDonald again in Bradford. On this occasion McDonald brought with him a large amount of cash from Scotland and collected more on the way south. The third named appellant arrived in a car but transferred into McDonald's car while the other car remained in convoy and parked beside McDonald's car. At the point of arrest the third named appellant was in McDonald's car with the cash in the boot of that car. McDonald had gone to the boot where the money was. In his police interview the third named appellant said that he was giving advice on how to send money abroad using methods outwith the normal banking system. The giving of such advice would not have necessitated the second meeting in Bradford with another car to hand.

[31] In our opinion that evidence amounted to a clear sufficiency of evidence from which the jury could infer that the third named appellant knew or suspected that the money represented a benefit from criminal conduct. In that regard we agree with the submission of the Advocate depute that, even where the Crown had specified in its presentation of the case to the jury that the nature of the criminal conduct was drug trafficking, it was sufficient for the Crown to establish that the third named appellant had knowledge or suspicion that criminal conduct generally was the source of the money: cf Mohammad Ahmad v HMA [2009] HCJAC 60. There was also a clear sufficiency of evidence from which the jury could infer that the third named appellant knew that at least some of the money emanated from Scotland and that he was guilty on an art and part basis in the removal of criminal property from Scotland.

[32] Having said that, in view of the fact that some of the money was given to McDonald in England, it cannot be established how much money was removed from Scotland and any conviction of the third named appellant should be amended by deleting reference to a specific amount of money. This could be achieved by deleting the phrase "amounting in cumulo to £100,000 or thereby".

[33] The third ground of appeal alleges that the third named appellant was charged under the wrong section of the Act. It was submitted that if any offence had been committed it was a contravention of section 329 of the Act which specifies that a person commits an offence inter alia if he acquires or has possession of criminal property. This submission is misconceived because, as we have already observed, the third named appellant never acquired or had possession of the money which was in the boot of the co-accused's car. As with the offence of transfer, the offence of acquisition involves a handing over of the property to the person acquiring it and the offence of possession involves exercising control over the property. As neither of these situations occurred in the present case, it would not have been appropriate for the Crown to charge the third named appellant with a contravention of section 329 of the Act. That is sufficient for the determination of this ground of appeal.

[34] The final ground of appeal alleges that the trial judge misdirected the jury on the question of concert, particularly as regards a failure when the jury returned for further directions to direct that they required to assess the state of knowledge of the appellant. Whatever the situation may have been at that stage, counsel for one of the co-accused expressed concern about such further directions as had been given; as a result of which the trial judge recalled the jury and gave a further direction, in the following terms:

"I have brought you back to give you one additional direction in relation to what I have just said to you earlier on in relation to the question of concert. When you are considering whether people are acting in concert you must of course bear in mind what I said to you earlier, that each accused must know or suspect that the money was a benefit from criminal conduct. You must be satisfied in relation to the question of people acting together that each of them knew or suspected that the money was a benefit of criminal conduct. So if you would just add that into your considerations. I am sure you probably understood that already but if that assists to clarify..."

That was the last direction given to the jury on the question of concert from which it is clear that they required to assess the state of knowledge of the third named appellant. Consequently we consider that there is no merit in this ground of appeal.

Decision

[35] For the reasons given above we shall refuse the appeal by each of the first and second named appellants. However we consider that the conviction of the third named appellant should not have included the transfer of criminal property contrary to section 327(1)(d) of the Act; and, as respects his participation in the offence of removal of criminal property from Scotland (section 327(1)(e)), should not specify the particular sum of £100,000, since that figure apparently includes the bank notes received by McDonald at the M62 service station in England. Accordingly we shall quash the conviction of the third named appellant, substituting therefor a conviction restricted to the removal of criminal property from Scotland, namely a sum of money, contrary to section 327(1)(e) of the Act.

[36] In these circumstances we shall invite the third named appellant to make such representations about sentence as he considers appropriate.