APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Kingarth Lord Mackay of Drumadoon Lady Dorrian	[2009] HCJAC 84 Appeal No: XC734/03 OPINION OF THE COURT delivered by LORD KINGARTH in APPEAL AGAINST CONVICTION AND SENTENCE by WILLIAM GAVIN GRANT Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Macleod QC et Smart et Borthwick; McClure Collins

Respondent: Clancy QC; Crown Agent

23 October 2009

[1] On 16 May 2003, after a trial lasting some nineteen days at the High Court in Glasgow, the appellant was found guilty of a charge which libelled that:

"between 1 March 2002 and 1 October 2002, both dates inclusive, at various addresses in Panama, Central America, at an unknown address in Alicante, Spain, at the Port of Felixstowe, Suffolk, England, at the premises at Units 12 and 13 Buchanan Business Park, Cumbernauld Road, Stepps, Glasgow, at 49 Auchinleck Road, Cumnock, 17A Claremont Crescent, Kilwinning, 58 Yorke Place, Bonnyton Road, Kilmarnock, 8 Main Street, Bothwell, at Glasgow Road, Kilmarnock, in Cumbernauld Road, Stepps, Glasgow, in St George's Road, in New City Road, Glasgow, in London Road, Glasgow, in Smithycroft Road, Glasgow, in Canal Street, Glasgow, in Callon Street, Glasgow, in Milton Street, Glasgow, at Unit 15, Longford Avenue, Industrial Estate, Kilwinning, and elsewhere in the United Kingdom and beyond, you...whilst acting with another whose guilt has not been judicially determined and others whose identities are to the Prosecutor meantime unknown were in relation to goods namely a quantity of cocaine, knowingly concerned in the fraudulent evasion of the prohibition on importation of controlled drugs imposed by section 3(1)(a) of the Misuse of Drugs Act 1976; contrary to the Customs and Excise Management Act 1979, section 170(2)(b)."

His co-accused James Mair was convicted of the same charge. Two other co-accused were also convicted, albeit under various deletions from the charge.

[2] The circumstances of the case are summarised in detail in the trial judge's report as follows:

"Facts

(a) Background

Mr Mair was for many years engaged in the transport business, running a small operation latterly known as J & L Transport from a unit at the Buchanan Business Park, Stepps. This was next door to a much larger concern called BTM Storage, which also operated as Weaver Pallet Express, based in Birmingham. J & L were sub-tenants of BTM. Mr Mair had a close business relationship with the appellant, who also operated in the transport business, mostly, it seems, from J & L's premises. The appellant also ran a software training concern called One-to-One (turnover £250,000 per annum) with a former girlfriend and had an office in his house at 8 Main Street, Bothwell. Just exactly what the business relationship was between the appellant and Mr Mair at J & L was not entirely clear but they seemed, by all accounts, intertwined to a material degree. Ostensibly, however, it was Mr Mair who was the sole proprietor of J & L. In 2002, J & L had useful sub-contracts with Weaver Pallets and Express Despatch. It had a turnover of between £250-280,000 per annum until the middle of that year when it lost the sub-contracts, worth some £4,000 per week. The appellant continued to have useful newspaper contracts with TNT Newsfast, delivering newspapers to John Menzies & Co. Certainly, when Mr Mair went on his annual holiday to Benidorm (which he did at a critical time in the events considered here), it was the appellant who did things like making up the wages, instructing the drivers and writing out cheques already signed by Mr Mair. J & L appeared to be a legitimate small business operated by Mr Mair, with the help of a secretary, Nicola Smith, and some form of input from the appellant. It did not have an international import arm and dealt almost entirely with local, that is to say Scottish, deliveries.

The Gates Rubber Company, which in the course of 2002 changed its name to Interfloor, is a well known manufacturer of rubber products in Dumfries. It came to the knowledge of Mr Mair at some point probably in late 2001 or early 2002 when Ian Alexander, a small Lockerbie based transport operator, attempted to get work from Gates in conjunction with Keith Adams, an Annan based operator, and asked Mr Mair for advice on pricing. Mr Alexander had a contact in the office of Gates Rubber (Janette Haigfield). Mr Alexander also knew the appellant.

(b) The Initial Faxes

In terms of fax transmission sheet dated 6 March 2002 found in J & L's premises (Production 184 D), Norman Anderson, supposedly head of purchasing at Gates Rubber, wrote to Mr Mair at J & L as follows:

"With regards to our conversation on Tuesday here is a list of jobs I would like you to quote for....decant of 20 foot containers storage...delivery".

This document is a forgery. The stationery is not Gates' stationary and there was never anyone called Norman Anderson at Gates Rubber. The husband of the appellant's godmother was called Norman (Norrie) Anderson and the appellant had attended his funeral less than two months before the date of this sheet. A fax cover sheet (Production 184 G) dated 12 March was also found and purports to be from J & L Gates quoting certain prices. The letters are in block capitals, a trait, according to his secretary, of Mr Mair. Yet a further fax (Production 184 A) purporting to be a purchase order from Mr Anderson at Gates to J & L and dated 18 March was found. This is also a forgery. From evidence concerning the creation of the faxes, it would seem that the embryo of an idea to import the cocaine in a cover load of rubber was in existence as early as at March 2002.

(c) The Importation

A further forged fax from Norman Anderson at Gates to Mr Mair at J & L dated 12 August (Production 184 F) states:

"With regards to our previous conversation in March...Aggro Industries SA our supplier have now completed our order and will be in contact direct with yourselves to finalise shipping details...I will be in contact in the next few days to confirm proper arrangements have been made".

The fax machine generated header on this document records that it was sent at 09.56 on that date, purporting to be from the Gates' fax number and the Gates Rubber Company. Since it did not come from there, someone had programmed a fax machine to carry the Gates' name and number. An interrogation of a fax machine in the appellant's office in Bothwell revealed that it had sent a fax on that day at exactly that time (09.56); that machine's time clock having been reset that day. The inference is that the appellant had sent the forged Gates fax.

Three 20 foot containers containing 506,507 and 507 bales of raw rubber respectively were laden on board the vessel Magleby Maersk at the port of Manzanillo (Panama) on 21 August with $6,327.19 of freight prepaid. The exporter was stated on the documentation as Agro Industrial Centroamericana Imp & Exp SA and the consignee as J & L Distribution. Delivery was due at "Greenmount" (Grangemouth). A series of faxes and telephone calls passed between the shipping company (Maersk) and J & L in the form of Mr Mair or his secretary about the practical arrangements for the clearance of the cargo and its onwards transmission to Grangemouth by sea and to the Buchanan Business Park by road. Maersk sent a fax (Production 356) to J & L with charges as follows:

"Re 3 CNTRS Ex Vessel: Magleby Maersk Commodity Rubber...please find attached invoice for Customs clearance, VAT charges and use of Maersk Logistics Deferment...

invoice....199.75 (Sales Invoice Production 358)

invoice...9433.36 (Duty Invoice Production 357()

TOTAL GBP 9,633.11"

Maersk Logistics made it clear that Mr Mair should use CHAPS/Same day Bank Transfer to avoid delay.

Meantime, on 31 August, two mobile telephones were first activated. One of these was later found in the possession of Mr Mair and the other linked to one Stephen Marshall. Judging from the numbers, these telephones were likely to have been bought at the same time. They were used only to communicate with each other. The day of arrival of the Magleby Maersk at Felixstowe was 4 September. Another forged fax (Production 184 B) bearing that date and purporting to be from Norman Anderson to Mr Mair states:

"the shipping agent is Maersk Sealand. All documentation has already been sent via DHL and should be with you very soon."

The fax header on this is timed at 13.06 and purports to be from Gates Rubber at their fax number. The activity report on the appellant's fax machine records transmission to an unknown number on 4 September at exactly 13.06. The last number dialled by that machine was the J & L fax line thus leading to an inference that this forged fax had also been sent by the appellant to J & L.

Some time before the arrival of the vessel, the Customs and Excise at Vigilant House, Paisley, had become suspicious of the cargo of 50 tons of raw rubber which had appeared on the ship's manifest which they routinely received. Rubber is not normally imported into the United Kingdom from the Americas because of the erratic quality obtained there; nor is it normally imported by transport firms in Scotland. Rather it is customarily brought in by rubber trading houses based in London from the Far East. The rubber here was of good quality for use in high quality products only, such as impact absorbers on military vehicles. An operation, code named Thyme, was set up and it was decided to search the bales. On the instructions of David Odd (Acting Chief Investigating Officer), officers Paul Cunningham and Kay Corr were sent to Felixstowe where the three containers were intercepted and electronically scanned. On the first day (4^th), the first container was processed and nothing found. On the second day (5^th) it was noted that the twenty-first bale had a different internal profile, showing four concealed square objects. The bale was opened (with considerable difficulty) and found to contain four one kilogram blocks of cocaine packaged with ornate "Copa" manufacturer' mark on the label. A total of 125 "dirty" bales were found, all from the second container in which they formed a corridor in the centre. All the drugs were recovered from the bales, replaced with sand and the bales were re-packaged. The repackaged bales remained under Customs and Excise control from Felixstowe to Grangemouth on the feeder vessel.

There were 500 kilograms of cocaine thus recovered. Cocaine sells at about £50 per gram at street level and has a normal purity of up to 75% (less than the purity here). The retail value was accordingly something in excess £234.7 million.

(d) The VAT Payment

Mr Mair knew that he had to arrange the payment of the VAT and customs duty of £9,633.11. Although he maintained throughout the trial that he thought the whole transaction was a legitimate one, his position was at its most difficult in explaining what happened next. In short, he was seen on 5^th September speaking to Stephen Marshall in the car park at the back of the Howard Park Hotel (next to a Tesco superstore), Kilmarnock. The following day, Mr Marshall turned up at the Bank of Scotland, King Street, Kilmarnock and, using a false name, deposited £9,667 in cash into Mr Mair's bank account. Mr Mair then faxed a request to the Bank for a CHAPS (same day) transfer of £9,633.11 (Production 421) to Maersk. On the Saturday, Mr Mair flew off to Alicante on his holiday (Defence Production 1) leaving the business in the hands of his secretary and the appellant.

(e) Delaying Delivery

According to Ms Smith, the first she knew of the impending delivery (on 13 September) was when the appellant spoke to her about it after Mr Mair had gone on holiday and problems had arisen as to how the bales were going to be unloaded. The appellant had broken a heel; another driver (John Brown) had suffered a close family bereavement; and a third potential helper (Martin Shannon) had contracted pneumonia. Ms Smith spoke to Mr Mair in Spain and he said that she or the appellant would have to speak to Maersk.

Not a great deal seems to have happened in the immediate period thereafter, although there was a strange episode on Friday 13^th, when the appellant was under surveillance. He was in a white van in a car park at a snack bar in Hillington at about 1pm. There was an exchange of parcels with another vehicle, possibly a legitimate transaction, before the van drove off followed by an unmarked police car. The appellant was not driving but was seen looking in the passenger side wing mirror before the van adopted what were perceived by the police to be anti-surveillance manoeuvres. As a result, the surveillance was called off as possibly compromised. Interestingly, it was on the same day, but perhaps earlier in it, that the appellant called Maersk "on behalf of Mr Mair" and said that the delivery needed to be cancelled and rebooked a week later as the warehouse was not ready because of illness and bereavement. The appellant said to Maersk that Mr Mair was returning from holiday and would give final instructions. Maersk were to hold the containers in Grangemouth meantime.

(f) Delivery

On 21 September (Saturday), Mr Mair returned from Alicante. On 23 September (Monday) Maersk received payment of the various charges and delivery was authorised. Customs and Excise undercover drivers Ron Saunders and Dave McCall (not their real names) drove the containers into the Business Park at the allotted times and Mr Mair was there to sign the delivery notes (Production 164) and help with the unloading by driving the forklift. The appellant was present at the unloading.

(g) Movement and Storage

Again, not a lot happened for a few days until an apparent sudden urgency to move the cargo developed. Just what prompted this is not clear, but BTM were certainly becoming anxious about the smell from the rubber contaminating their stored goods, such as items for the Christmas market. It was only at this point that others became involved in moving the cargo to a warehouse in Kilwinning prior to the intervention of the police and Customs and Excise officers.

At between 10 and 11 am Mr Mair had moved some of the pallets containing the rubber bales out into the loading bay. At about 1.15 pm, the appellant entered the Business Park in his BMW. A truck arrived at about 2pm and parked parallel to the loading bay. At 2.20 the loading was complete and the truck left the Business Park for Kilwinning."

[3] As appears from the trial judge's charge to the jury, and from his report, the critical strand of evidence against the appellant on which the Crown relied was the evidence relating to the forged faxes. In support of that the Crown sought to found on a number of other circumstances, in particular the use of the name Norman Anderson on these faxes, the appellant's software knowledge, his apparent connection of some kind with the business of J & L Transport (although, as was pointed out in the trial judge's charge to the jury, the evidence as to the extent of that differed, with one witness, Benjamin Eadie - his surname wrongly transcribed as "Healey" in the transcription of the charge - having said that he thought J & L Transport was the appellant's business), the evidence that the appellant was to deal with the rubber when it was scheduled to arrive and the evidence relating to the so-called anti-surveillance manoeuvres of the van in which the appellant was a passenger.

[4] The appellant's position in evidence (and as put consistently in cross-examination on his behalf by experienced senior counsel) was that he did indeed have some connection with J & L Transport, but it was limited in the sense that he and Mr Mair were friends, and there was a degree of sub-contracting between Mr Mair's company (J & L Transport) and the appellant's separate transport business; that he was thus often in Stepps and that when Mr Mair was on holiday he often helped out in relation to his friend's business. Consistent with this practice, and before Mr Mair went on holiday on 7 September 2002, the appellant had been asked to assist in the unloading of a delivery of rubber, which was first scheduled to take place on 13 September. When problems arose in relation to whether the rubber could then be unloaded, the matter was raised with Nicola Smith and Mr Mair, and the delivery was postponed until Mr Mair's return from holiday. He knew absolutely nothing of the cocaine inside the rubber. He was not involved in the forged faxes. He only knew the husband of his godmother as "Norrie". He did not accept that the vehicle, in which he was a passenger only, had carried out any anti-surveillance manoeuvres.

[5] Although leave was given to the appellant to argue a number of grounds of appeal, senior counsel on his behalf explained that, while he had no formal instructions to abandon any of these grounds, nevertheless, given the current state of the law (in particular the decision of this court at an earlier stage of the appeal when certain further proposed additional grounds were refused, reported at 2006 JC 205) he could responsibly argue only one ground of appeal, namely that ground broadly contained in the document marked 1B, which was allowed on 19 December 2008.

[6] This argument related to three tapes of an interview between the witness Nicola Smith and an officer of HM Customs and Excise on 1 October 2002. These tapes were the subject of a notice under section 67 of the Criminal Procedure (Scotland) Act 1995 in respect of which leave of the court was given to the Crown, unopposed, on the first morning of the trial (16 April 2003), due notice having been given to the appellant and his agents on 10 March 2003, at the latest. At that stage no transcript of the interview existed, although by the time of the appeal one had been prepared. On the information available to the appellant it appeared that his then solicitor was not aware of the terms of the tapes, but he had no direct information that senior and junior counsel who then represented him were similarly ignorant. The submission was, however, that as they were Crown productions his counsel knew or ought to have known of the terms of the interview. Despite that there was no cross-examination of the witness Nicola Smith by reference to it. Having regard to the terms of the interview it was plain that no reasonably competent counsel could have done other than use it to cross-examine the witness, in particular in two important ways. In the first place, certain evidence given by the witness Nicola Smith in court was to the effect that she herself had had no knowledge of the delivery of rubber before Mr Mair went on holiday and she only learned of it from the appellant when he brought to her attention the difficulties in respect of its unloading on the first scheduled date. This, it was submitted, was important evidence in the case against the appellant. What could, and should, have been done was to put to her the passage in the earlier interview (in particular at page 61) in which she had said that "Mr Grant didn't know about the delivery", this apparently after she herself became aware of it when the shippers, Maersk, telephoned her after Mr Mair left on holiday. This statement was plainly contradictory of her evidence in chief. Secondly, the interview could and should have been used to underline the evidence which the witness had already given as to the limited role which the appellant played in relation to the company J & L Transport (consistent with the appellant's position on that matter) - effectively by putting to her that she had said the same things before. Reference was made to Burzala v HM Advocate 2008 SLT 61, in particular para 33, and DS v HMA 2008 SCCR 929. Indeed from the failure to deploy the interview in cross-examination it could be inferred that counsel were not aware of its terms. In that event the failure of the defence was essentially a failure in preparation. Against that background it could at least be said that had the terms of the interview been known it was likely it would have been used, and that in effective support of the defence position. In that event it could be said that the trial was unfair, and that there had been a miscarriage of justice. At any rate it could not be said that the defence was not prejudiced by what had happened. Reference was made to Sinclair v HMA 2005 SCCR 446, and in particular to the remarks of Lord Hope of Craighead at para 35.

[7] In reply, the Advocate depute informed the court that it appeared to be clear from information made available to the Crown since the relevant ground of appeal had been allowed that neither the appellant's solicitor or his counsel were at the time of the trial aware of the content of the tapes. The Crown therefore accepted, for the purposes of the appeal, that they were not so aware and that, the tapes having been lodged as Crown productions, they should have been. In the circumstances, however, this was not a matter of any significance. Not only could it not be said that no reasonably competent counsel would have done other than use the tapes to cross-examine the witness in the ways suggested, it was clear that there was no likelihood that they would have been so used or if, they had been, that any such use could have been to any material effect in support of the defence position. It therefore could not be said that any omission could have amounted to a failure in any material respect to present the appellant's defence. Reference was made to Burzala v HM Advocate. Cases relating to the different question of non-disclosure were of no assistance.

[8] Given the Crown's position on the matter, we proceed on the basis that none of the appellant's defence team was aware of the content of the tapes in question. We feel it right to record, however, that, as reported to us, some of the information provided appeared to be unclear, and it is highly unsatisfactory that the solicitor and counsel in question were asked to try to recall details of this kind over five years after the trial. Nevertheless, from an accepted starting point that the defence team should have been aware of the terms of the tapes, but were not, it may not be necessary for the appellant to go so far as to persuade us that no reasonably competent counsel could have done other than cross-examine the witness using them in the way suggested. On that matter, however, we offer no concluded opinion, because we have come to the clear view, agreeing with the Advocate depute and contrary to the appellant's alternative submission, that it cannot be said that there was any likelihood that the tapes would be so used, or, if they had been, that they could have been used to any material effect in support of the defence.

[9] We deal first of all with the suggestion that the witness should, or would, specifically have been cross-examined in relation to her earlier statement at page 61 of the transcript, as referred to above.

[10] It is important, in the first place, to emphasise that although at times in her evidence in chief she plainly did maintain that she had not known anything of the delivery before Mr Mair went on holiday, and that she was only told about it by the appellant, her evidence on this was, at a number of points, far from clear. We refer, for example, to passages at pages 106, 111, 188, 192 and193 of the transcript. In the latter passage, in particular, she seemed to accept having remembered seeing a claim for payment in relation to the delivery prior to Mr Mair going on holiday. In cross-examination on behalf of the appellant her position was that "as far as she could remember" it was the appellant who first told her about the container delivery - a position essentially repeated in re-examination. In addition, as the trial judge informs us, the independent evidence of Trudy Seager from the shippers Maersk was to the effect that she spoke to Ms Smith in early September in relation to the delivery of the containers (apparently before Mr Mair went on holiday) and Mr Mair himself in evidence said that he had told Ms Smith (and the appellant) about the containers before his departure. There was thus evidence available, if necessary, to challenge Nicola Smith's evidence on this particular matter before the jury, at least to question its reliability, if it had been thought necessary to do so.

[11] More significantly, however, it is not at all clear that the evidence of the witness on this matter was in any respect damaging to the appellant's position. The position adopted on his behalf throughout the trial was that whatever Nicola Smith's state of knowledge may or may not have been (and this was not one of the circumstances directly referred to by the trial judge as a factor founded on by the Crown), the appellant plainly did know of the delivery, and there was no question of him hiding his knowledge from her. This was the basis on which she was cross-examined on behalf of the appellant, her evidence as to when she first knew of the delivery not being specifically challenged. She accepted when it was put to her that her evidence was entirely consistent with the appellant having been told about the delivery by Mr Mair before he left, and thereafter with her being informed by the appellant, who was keeping an eye on the business, that the three containers were to be delivered but that there was a problem about unloading them. She specifically agreed that there was no question of the appellant having tried to keep any knowledge of the delivery from her. Although in his evidence in chief the appellant indicated that it was his "recollection" that Nicola Smith already knew about the containers, the matter was not in any way stressed. Instead thereafter it was put to him by senior counsel "Whether she did or she didn't, your recollection is she knew about them?", and he answered in the affirmative. In senior counsel's speech to the jury he said inter alia "So what Nicola's knowledge is is neither here nor there as far as Mr Grant is concerned....". In short, it is clear that a tactical decision was taken from an early stage not to challenge her evidence on this matter.

[12] This cannot, in our view, be said to have been in any sense unreasonable. Any direct challenge of the witness would have risked upsetting the generally helpful evidence she gave as to the appellant's limited involvement with J & L Transport, and put the witness in conflict with the appellant on a matter of no obvious consequence. In any event it is plain that counsel could not properly have cross-examined the witness on the basis that her earlier statement at p.61was the truth. This would have contradicted the position of the appellant himself. No doubt the simple fact of a change of position could have been pointed out, if it had been thought necessary. But there were obvious risks that the witness would firm up on her position without counsel being in any position to put to her that her earlier statement was correct. It is also clear from the terms of the interview that her position in evidence that she had not known of the delivery before Mr Mair's departure was not contradicted, her position in the interview being that she first learned from Maersk rather than from the appellant. Further, as the Advocate depute before us stressed, any use of the tapes would have opened up possible re-examination on other parts - not just one part where she appeared to contradict her earlier position and indicate that she had been told of the delivery by the appellant (page 113), but more importantly other parts apparently unhelpful to the appellant's position overall, for example, where she said that it was the appellant who had done the cover headings for faxes sent by J & L Transport (p.79) and where when asked "Who actually generates new business, you know, goes and gets the new customers and things like that?" she answered "Mr Mair and Mr Grant together", (pp.37-38).

[13] As to the second suggested use of the tapes to cross-examine the witness (that is, in effect, by putting to her that she had said the same or similar things before as to the appellant's relatively limited involvement with J & L Transport), even if the question of the competence of simply trying to put to a witness a consistent previous statement, which was rightly raised before us by the Advocate depute, is left to one side, it is clear that any competent counsel would have had to consider the risks of disturbing the evidence already given on this matter which, it was accepted, was entirely favourable to the appellant - risks which would have been manifest not least having regard to the apparently unhelpful matter to be found at some places in the interview, as discussed above. We are quite unable to say that any competent counsel would have taken these risks.

[14] For these reasons we are not satisfied that it can be said that there was any likelihood of the relevant tapes being used, or if they had been, used to any material effect in support of the defence. That being so, it cannot be said that those representing the appellant failed in any material respect to present the appellant's defence, or that the trial was unfair and that there was a miscarriage of justice. Although reference was made by senior counsel for the appellant to Sinclair v HMA, we are not persuaded that any direct assistance can be afforded from a case concerned, as it was, with the different matter of non-disclosure. Even then it is clear that Lord Hope of Craighead was able to say, at para 35, "It is impossible therefore to say that the appellant's defence was not prejudiced by what happened in this case", because he had already formed the view that certain statements which had not been disclosed were "plainly likely to be of material assistance to the defence" (para 34), and would have been deployed in cross-examination. For the reasons already given that cannot be said in this case.

[15] In these circumstances the appeal against conviction is refused. The appeal against sentence remains to be heard.