APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lord Mackay of Drumadoon Lord Malcolm	[2010] HCJAC 77 Appeal No: XC523/09 OPINION OF THE COURT delivered by LORD MACKAY OF DRUMADOON in NOTE OF APPEAL by ALEXANDER DAVID WILLIAMSON ATKINSON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Renucci; Capital Defence Lawyers, Edinburgh

Respondent: Mackay, A.D.; Crown Agent

22 July 2010

Introduction

[1] During July 2009, the appellant stood trial in Perth Sheriff Court on an indictment libelling two charges. On 17 July 2009, after a trial lasting 7 days, the appellant was convicted on charge 1 in the following terms:

"(1) between 3 March 2009 and 19 March 2009, both dates inclusive, at the North Inch Park and South William Street, both Perth and elsewhere in Scotland you were concerned in the supplying of a controlled drug, namely Diamorphine (Heroin), a Class A drug specified in Part 1 of Schedule 2 to the Misuse of Drugs Act 1971 to another or others in contravention of Section 4(1) of the aftermentioned Act; CONTRARY to the Misuse of Drugs Act 1971, section 4(3)(b)."

The other charge the appellant faced had been withdrawn by the Crown during the course of the trial. On 17 July 2009 the sheriff imposed a sentence of five years imprisonment on the appellant. That sentence was backdated to 20 March 2009.

[2] The jury were empanelled on 9 July 2009. Although there had been various first diet and continued first diet hearings prior to that date, the appellant had not raised by way of preliminary plea any matter relating to the relevancy of the charge on which he was subsequently convicted. Nor had the appellant raised by way of a preliminary issue any objection to the admissibility of any evidence that the Crown proposed to lead during the trial about the surveillance operation carried out on the appellant between the dates and at the locations specified in charge 1 on the indictment.

Note of appeal

[3] Following his conviction the appellant lodged a Note of Appeal. It contained four grounds of appeal. Leave was granted in relation to ground 1 only. The issues raised in that ground of appeal include the following:

"During the course of the trial, objection was taken to the evidence which indicated actual supply of drugs by the Appellant to any other person, on the basis that the libel of the charge in the indictment was, in terms of Section 4(3)(b), not Section 4(3)(a). Reference was made to HM Advocate v Grant 2008 SLT 339 and in particular their comments at paras 20 and 21. The objection was noted, but by agreement, the evidence was heard under reservation on the basis that the matter would be dealt with at the conclusion of all the evidence. The basis of the objection was (a) that there was no fair notice, as referred to in HM Advocate v Grant, in this case, that the Crown intended to rely on specific incidences of supply of heroin by the Appellant to named persons and, as such, that evidence was inadmissible; and (b) that if the Crown evidence amounted only to supply to one person, possibly the witness Santos, then there would be insufficient in law to allow the matter to proceed to the jury in respect of charge 1.

The evidence was concluded and the objection was considered together with a submission of no case to answer which was also made. ..... "

The ground of appeal then articulates a number of submissions in support of the foregoing contentions. The ground also notes that after the Crown evidence had been concluded a submission of no case to answer had been made on behalf of the appellant and refused by the sheriff.

Report by the sheriff

[4] In his very full report to this court the trial sheriff has reported on the evidence which was before the jury:

" The Crown led evidence from Detective Constables Alan Wilkie, Kevin Johnstone, Sadie Allan, Samuel Woods, Russell Gillespie, Mark Stephen, Gavin Duncan, Gordon Peebles, Detective Sergeant Marshall McKay, Carlos Santos, Amanda Mackay, and Tracey Shields.

Detective Constable Alan Wilkie identified the Appellant. He had been a member of a surveillance operation, the subject of the operation being the Appellant. The operation had the requisite authorisation. He was referred to the surveillance logs. In particular, during surveillance on 19^th March 2009 the officer had observed the Appellant in the company of a female, Morgan Pritchard, between 12.33pm and 12.50pm. During that period they visited inter alia 'the known address' in 21, South William Street, Perth and left it after a minute. The Appellant remained under observation. Tracey Shields, having been seen using a public telephone in Victoria Street, Perth at 11.08am, met the Appellant's son, Alexander Atkinson. She gave him something and he handed something to her. They parted company, Mr Atkinson junior entering 'the known address'. At 1.37pm a female entered this address, the Appellant having entered 'the known address' at 1.21pm. Later, at 1.58pm, the Appellant's son left 'the known address' and met Miss Shields a minute later, handing her something, before he returned to 'the known address'. The Appellant met Miss Pritchard at 3.23pm and he was detained by the officer at 3.54pm. As he was being detained the Appellant put a cling film package in his mouth and swallowed. The officer carried out a search of the Appellant's room, namely Room 109, in the Waverley Hotel, York Place, Perth. Mobile telephones, Crown labels 6 and 8, and tin foil, Crown label 11, were recovered from the room. He further tested a foil wrap found in the possession of Tracey Shields when she was detained.

Detective Constable Kevin Johnstone was likewise involved in the surveillance operation. He identified the Appellant. On 4^th March 2009 he detained Carlos Santos at 3.17pm at Bridgend, Perth. Mr Santos was found in possession of two foil wraps, Crown label 16. Mr Santos also had a mobile telephone, Crown label 3. He took a statement from Mr Santos at 3.30pm at Police Headquarters. This statement was Crown production 5. The foil wraps were field tested and this suggested both contained heroin. On 6^th March 2009 the officer saw the Appellant at 2.09pm. At 2.18pm he was near the monument on the North Inch, Perth using a mobile telephone and appeared to be waiting. He left at 2.23pm and met Andrew Townsley and Joseph Waddell. They separated at 2.30pm and the two males were detained at 2.32pm. The Appellant left 'the known address' at 3.10pm. On 19^th March 2009 he saw the Appellant in the company of Miss Pritchard from 12.54pm until 1.19pm. After the detention of the Appellant he searched his hotel room and 21, South William Street, Perth. He confirmed that the foil recovered from the room was the same as the foil of the wraps recovered.

Detective Constable Sadie Allan took part in the surveillance of the Appellant. On 6^th March 2009 at 2.30pm she was with Detective Sergeant McKay and detained Messrs Townsley and Waddell. As they approached, Mr Townsley seemed to put an item in his mouth. She noted a statement from Mr Townsley, Crown production 6. On 19^th March 2009 she attended after Miss Shields was detained and searched her. Crown label 12, a foil wrap was found in front of her on the pavement. A mobile telephone, Crown label 5, was also recovered from Miss Shields. She further became aware that James Brown had been detained at 3.25pm in Scott Street, Perth. She attended and searched this male recovering a piece of paper, Crown production 18. The paper contained a number of numbers which appeared to be mobile telephone numbers, one 'A 07804607781'. She further attended on Miss Pritchard after she had been detained. She searched her. She then searched 21G, South William Street, Perth. Nothing significant was found. She searched Room 109 in the Waverley Hotel. She confirmed the items recovered there.

Detective Constable Woods was involved in the surveillance of the Appellant. On 6^th March 2009 he noted the statement from Joseph Waddell, Crown production 4. On 19^th March 2009 he detained Tracey Shields at 2.01pm in Canal Street, Perth. As he did so, Miss Shields dropped a tin foil wrap on the pavement. This wrap contained brown powder. Later at 3.54pm he detained the Appellant in Nelson Street, Perth as he walked towards South William Street. He spoke of the Appellant putting an item in his mouth as he moved to detain him. The Appellant was detained. A mobile telephone, Crown label 7, and £130, Crown label 9, were recovered from the Appellant. He took part in the search of Room 109 and confirmed what had been recovered. He further took a statement from James Brown, Crown production 2.

Detective Constable Gillespie was again involved in the surveillance operation. On 4^th March 2009 he saw the Appellant, whom he identified, on the North Inch, Perth between the dry arch and the monument. He was on his mobile telephone at 3.04pm. At 3.08pm he was approached by a 6 foot 2 inch male. The Appellant handed something to this male. At 3.12pm the Appellant met Carlos Santos and handed an item to Mr Santos. They met between the dry arch and the monument under the bridge. Mr Santos left and the officer detained him at 3.17pm in Main Street, Bridgend. Mr Santos was searched and two foil wraps were recovered. These, Crown label 16, were tested and this suggested that the powder in the wraps was heroin. A mobile telephone, Crown label 3, was also recovered from Mr Santos. He took a statement from Mr Santos. This was Crown production 5. On 6^th March 2009 he observed the Appellant near the monument of the North Inch at 2.18pm. He was using a mobile telephone and appeared to be waiting for someone. He was there until 2.23pm. On 19^th March 2009 he noted the Appellant in the company of Miss Pritchard between 12.39pm and 12.44pm and again between 3.50pm and 3.52pm. At 1.55pm he saw Tracey Shields at the telephone box in Victoria Street. Three minutes later the Appellant's son met her and handed an item to her. He detained Tracey Shields in Scott Street. She dropped an item but he recovered it. This was Crown label 12 and it was subsequently found to be heroin. He also recovered a mobile telephone from her. He further interviewed James Brown and noted a statement from him. This is Crown production 2.

The officer then indicated that mobile telephones can be important in drugs investigations and that he was trained to examine such. He prepared a report on his investigations and this formed Crown production 17. The Nokia phone, TSUD ref 79/09, had been in the possession of Carlos Santos, Crown label 3, the Sony Ericsson in the possession of Amanda Mackay, Crown label 4, and the other Nokia, TSUD ref 91/09, in the possession of Tracey Shields, Crown label 5. In the phone found in the possession of Carlos Santos the number 07954999314 was stored in his contacts under the name 'Alex'. This number had been called at 11.22am on 4^th March 2009. Mr Santos further had received a number of text messages from the contact 'Alex'.

The first was at 34 seconds after 7.20pm on 3^rd March 2009 and was in the following terms:-

'i wil b at bridgend in twenty mins bud meet me at bus stop on the same side as chemist'.

The next came from 'Alex' on 4^th March 2009 at 15 seconds after 2.39pm in the following terms :-

'what r u after'.

The next came from 'Alex' at 17 seconds after 2.43pm and was as follows:-

'i wil c u under the bridge at this end in ten or fifteen mins bud'.

The final came from 'Alex' at 11 seconds after 3.05pm and was as follows:-

'i am under the bridge at other side of water hurry bud'.

He said that the letters on the report 'UTC' [sic] stood for the European Time Code and accordingly the time may not be accurate.

He then spoke of examining Crown label 4. It had two contacts stored under the name 'Alex'. One of the numbers was the same number stored in the mobile telephone of Carlos Santos under the contact 'Alex', namely 07954999314. He indicated that the other contact 'Alex' could be a different person or the same person. Drug dealers often had more than one mobile telephone. He examined Crown label 5. This had a contact 'Alec mobile' with the same number 07954999314. The officer then seemed to indicate that Crown label 5 had been recovered from Miss Mackay whilst Crown label 4 had been recovered from Tracey Shields.

Detective Constable Stephen was involved in the surveillance operation. On 6^th March 2009 he saw the Appellant at 2.23pm moving towards the Skinnergate, Perth. At 2.44pm he saw the Appellant move towards 'the known address' which he entered at 2.45pm. At 2.53pm a female entered 'the known address'. She left two minutes later. At 3pm the Appellant left 'the known address' and met a female two minutes later. They return to 'the known address' and the female left at 3.03pm. The second female was Miss Amanda Mackay. On 19^th March 2009 he assisted in detaining the Appellant at 3.54pm in Nelson Street. As he was detained the Appellant put an item in his mouth and swallowed it. The item appeared to be a clingfilm wrap. He searched Room 109 Waverley Hotel and confirmed what was recovered. He interviewed the Appellant who denied everything.

Detective Sergeant McKay was in overall charge of the operation. He spoke to the necessary authorisation for the surveillance. He instructed the detention of Mr Santos on 4^th March 2009. On 6^th March 2009 he was present as Mr Townsley was detained and saw him putting an item in his mouth and swallow it. He considered that Mr Townsley was swallowing drugs. He detained Mr Townsley. He was searched and nothing was found. He took a statement from Mr Townsley, Crown production 6. Mr Townsley refused to sign this statement. On 19^th March 2009 he instructed the detention of James Brown at 3.25pm. Crown production 8 was found in his possession. He then instructed the detention of the Appellant. He interviewed the Appellant who denied any involvement in drugs offences.

Detective Constable Duncan was involved in the surveillance. On 6^th March 2009 he assisted in the detention of Amanda Mackay in Horner's Lane, Perth. This ran between Canal Street and South Street, Perth. She had a small foil wrap in her left hand. This wrap was Crown label 15. She was searched and a mobile telephone, Crown label 4, was recovered from her. He noted a statement from Miss Mackay which was Crown production 7.

Mr Carlos Santos recalled being detained by plain clothes police officers on 4^th March 2009. He advised that he abused drugs including heroin. He had abused drugs for ten years. He spent at least ten pounds daily on drugs. He identified Crown label 3 as his mobile telephone. He accepted that he tended to use this phone daily. He could not recollect using the phone on 4^th March 2009 as he was 'rattling'. He was suffering drug withdrawal. He was looking for drugs and had asked a friend to get drugs. He said that he did not know anyone called Alexander Atkinson. He was shown the report, Crown production 17. He said that 'Alex' in his contacts was not the Appellant. He accepted that he must have dialled the number 07954999314 at 11.22am on 4^th March 2009 to source drugs. He accepted that he had received the text from 'Alex' on 3^rd March 2009 around 7.20pm. He said that he did not know 'Alex' and did not know why he had received the text. He used the telephone to obtain drugs. He said that he had met someone to buy drugs on 3^rd March 2009. He bought drugs as a result. He could not recollect who he met. He bought a tenner bag. He accepted receiving the text message on 4^th March 2009 around 2.39pm from 'Alex' and read it. He could not advise what he was wanting at that time. He could not recall if it was drugs on that date. The text message received around 2.43pm from 'Alex' was looked at. The meeting place was over the river Tay from Bridgend. He accepted that he met someone under the bridge on 4^th March 2009. This person sold him two tenner bags of heroin. He said that he did not see this seller in court. After he bought this heroin, he crossed the bridge and was detained by the officers with the heroin in his possession. This was Crown label 16. He accepted that he gave the police officers a statement. On being taken through Crown production 12, he could not recall telling the officers much of the statement.

Miss Amanda Mackay was a heroin addict. She had a drug problem. She accepted that she had bought heroin on 6^th March 2009 and that Crown label 4 was her mobile telephone. She said that she had had this telephone for one week. She sometimes used the telephone to get drugs. She said that the two contacts stored in this telephone under 'Alex' were two different numbers for her Uncle Alex. She identified Crown label 15 as a wrap of heroin. She recalled being detained by police officers on 6^th March 2009. She said that she had been out and about. She said that she was not sure where South William Street was. She did not know anyone who lived there, nor had she visited any address there. She accepted speaking to people in the Matalan car park. When she was detained the foil wrap was in her hand underneath a bus ticket. She knew the Appellant from a hostel and identified him. She said that she bumped into him regularly but did not telephone him. She said that she bumped into the Appellant that day, walked to a close, kissed and cuddled and then separated. She had the foil wrap before she met the Appellant. She accepted giving a statement to police officers but said that she had been suffering withdrawal and would say anything to get out of the station. She was taken through the statement. She accepted that part of what was noted was true but other parts relating to receiving drugs from the Appellant were not correct. Parts of the statement had been made simply to achieve her release. She said that she had had the wrap before meeting anyone on 6^th March 2009.

Miss Tracey Shields was a heroin addict taking drugs daily. She recalled being detained by police officers on 19^th March 2009. She accepted that she probably had Crown label 12, a foil wrap, in her possession at the time. She said that she had it in her mouth and she spat it out. She said that Crown label 5 was her mobile telephone. She said that the entry in her contacts on her telephone under 'Alex' was the Appellant. She was friendly with his daughter. She could not recall meeting anyone on 19^th March 2009. She said that she did not know young Alex Atkinson.

Detective Constable Peebles gave opinion evidence as to drugs and the drug scene generally. A tenner bag contained at most 0.1 grammes of heroin. They were normally sold underweight. He had prepared the joint report, Crown production 23. A 'tenner' bag was described as a street deal. He spoke of street dealers. He said that people could have drug wraps in their mouth if they were about to supply drugs. He was of the view that £130 recovered from the Appellant was not an extraordinary sum of money. Three mobile telephones in total had been found on the Appellant or within his hotel room. It was unusual for someone to have three mobile telephones. Mobile telephones were used in drug dealing as a means of evasion. 'Pay as you go' arrangements were preferred for dealing as a subscriber contract had to be registered.

The content of the joint forensic report, Crown production 21, was agreed in terms of a Joint Minute. All the heroin recovered and analysed was in street deals."

[5] In his report to this court the trial sheriff informs us that during the evidence of the second Crown witness, Detective Constable Kevin Johnstone, the appellant's solicitor took objection to the line of evidence. The objection was founded on HM Advocate v Grant 2008 SCCR 143 and the sheriff recalls the appellant's solicitor prefacing his objection by indicating that it was likely that the evidence objected to would require to be led and that the matter would then be debated at the close of the Crown case. The sheriff draws attention to the fact that the Note of Appeal states that when the objection was taken the objection "was noted, but by agreement, the evidence was heard under reservation, on the basis that the matter would be dealt with at the conclusion of all the evidence".

[6] In his report the sheriff also informs us that at the close of the Crown case the appellant's solicitor made a submission of no case to answer in respect of charge 1 to the effect that if the Crown case was dependent upon the evidence of the Santos transaction on 4 March 2009 there was insufficient evidence to convict the accused on charge 1 of a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971, rather it pointed to a contravention of section 4(3)(a) of the Misuse of Drugs Act 1971. According to the sheriff he repelled the submission of no case to answer. In explaining his reasons for doing so he indicates that he considered that the terms of charge 1 had given the appellant fair notice that he was accused of being concerned in the supply of a controlled drug between 3 March and 19 March 2009 at the North Inch Park and South William Street in Perth, that being an offence which could include instances of actual supply of the controlled drug. That gave notice sufficient to cover evidence of the appellant's meeting with Santos on 4 March 2009 and his comings and goings from the address in South William Street, Perth, during the period of the libel.

[7] According to the court minutes kept by the sheriff clerk, during the evidence of Detective Constable Kevin Johnstone on 10 July 2010, objection was taken to the line of questioning, the objection having been "to the question of what was found on the search of another person". Having regard to the sheriff's summary of Detective Constable Johnstone's evidence, that other person was presumably Carlos Santos. The minute records that "the Court having heard the Prosecutor in reply allowed the objection to be withdrawn meantime and directed that evidence continue". The minutes kept by the sheriff clerk also record that on 15 July 2009, during the evidence of Carlos Santos, the solicitor for the appellant made a motion, outwith the presence of the jurors and the witness, asking the court to desert the case pro loco et tempore in view of a reply given by the witness. The minutes record that the sheriff, having heard the prosecutor in reply, refused to desert the case in hoc statu. The minutes make no further reference to the objection withdrawn during the course of the evidence of Detective Constable Kevin Johnstone or to the motion to desert the case pro loco et tempore made during the evidence of Carlos Santos.

Submissions of counsel

[8] In arguing the appeal counsel for the appellant explained that his submissions fell into two branches (a) that the evidence relating to the supply of drugs to Santos should not have been admitted because of the terms of charge 1 and (b) that in the absence of the evidence of an actual supply to Santos, there was insufficient evidence to convict the appellant on charge 1. Counsel for the appellant recognised that if his submissions on the first branch were unsuccessful then the second branch did not arise. Counsel also recognised that the procedure followed before the sheriff, on 10 July 2008, after the objection to the line of evidence had been taken, had been unusual. Counsel acknowledged that there have been many cases involving a contravention of section 4(3)(b) of the 1971 Act, in which the actual supply of controlled drugs to others has been proved and that has occurred when details of actual supply have not been included in the terms of the charge.

[9] Under reference to what was said by Lord Nimmo Smith in delivering the Opinion of the Court in Grant at paras 19, 20 and 21, it was argued that the terms of charge 1 should have included notice of the Crown's intention to lead evidence of actual supply to Santos. In the particular circumstances of this case the libel should have included the words "and in particular you supplied Carlos Santos on (a specific date and at a specific place)". That was necessary in view of the fact that the charge as drafted covered a number of dates and two specific loci. It was submitted that putting Santos' name on the witness list did not provide fair notice to which the appellant had been entitled. Such notice had been required, because evidence of the actual supply of diamorphine to Santos had been crucial to the Crown being able to prove charge 1 against the appellant. In the absence of such notice the objection to the line of evidence should have been sustained. Had the evidence objected to been excluded, there would not have been sufficient evidence to entitle the jury to convict the appellant on charge 1. In these circumstances, standing the terms of charge 1 evidence relating to the actual supply of drugs by the appellant to Santos should have been excluded by the sheriff, following upon the objection to the line of evidence having been made. Had that occurred, then as was clear from pages 22-24 of the sheriff's charge, the sheriff would have withdrawn the case from the jury. Reference was also made to Nelson v HM Advocate 1994 SCCR 192 at pages 195 and 202F-203C.

[10] In response, the Advocate depute argued that fair notice had been given. The Advocate depute also referred to Nelson v HM Advocate on which he relied. He pointed out that this case was not one in which the Crown had intended to lead evidence that the appellant was of bad character or that he had committed a crime of a different character or nature to that which he faced on the indictment. On the contrary, the evidence that the Crown sought to lead and had led about the appellant's dealings with Santos, could have been categorised as pointing to the commission of a contravention of section 4(3)(a) or of section 4(3)(b) of the 1971 Act. The Advocate depute conceded that if the evidence relating to the actual supply of drugs to Santos had been inadmissible then there had been insufficient evidence before the jury to entitle them to convict the appellant of charge 1.

Discussion

[11] In our opinion this appeal against conviction falls to be refused. A charge alleging a contravention of section 4(3)(b) of the 1971 Act need not contain specific details of all actings on the part of an accused which the Crown intends to found in seeking a conviction on that charge, but which might also constitute a contravention of section 4(3)(a) of the 1971 Act (the supplying or offering to supply of a controlled drug to another) or of section 5 (3) (the possession of a controlled drug with intent to supply it to another). In our experience, it is not uncommon for alleged contraventions of section 4(3)(b) of the 1971 Act to be libelled along the lines adopted by the Crown in the present case. In some cases alleging contraventions of section 4(3)(b) of the 1971 Act, in which evidence of actual supply of controlled drugs to others has been led, the charge has included averments of actual supply to named individuals. In other cases it has not.

[12] When delivering the Opinion of the Court in Nelson v HM Advocate (which was a case involving three contraventions of section 4(3)(b) of the 1971 Act), Lord Justice General Hope re-stated the rule relating to the competency of leading evidence of any crime not libelled in the indictment, either as a specific charge, or as a specific averment. He did so in the following terms, at pages 203 C-E:

"......The general rule is that the Crown can lead any evidence relevant to the proof of a crime charged, even though it may show or tend to show the commission of another crime not charged, unless fair notice requires that that other crime should be charged or otherwise referred to expressly in the complaint or indictment. This will be so if the evidence sought to be led tends to show that the accused was of bad character and that other crime is so different in time, place or character from the crime charged, that the libel does not give fair notice to the accused that evidence relating to that other crime may be led or if it is the intention as proof of the crime charged to establish the accused was in fact guilty of that other crime.

In the present case, the evidence of what happened in the toilet was clearly related to the crimes charged against the appellant in this indictment. Fair notice was given, by reference to the date and the place, of the intention to lead evidence of what happened when the appellant was seen there by the police officers. His actings in attempting to conceal from them his possession of controlled drugs were relevant to the question whether he was guilty of being concerned in the supplying of drugs. It was not necessary for the Crown to prove that he was guilty of the separate statutory offence of intentionally obstructing the police officers in the exercise of their powers under section 23 of the Act and the evidence did not seek to establish this as a fact. For these reasons it was not necessary on the grounds of fair notice for the commission of an offence under section 23 to be libelled in order to render this evidence admissible."

In Nelson none of the charges on the indictment contained any reference to the actings of the appellant in seeking to conceal drugs from the police.

[13] In the case of Grant, to which both counsel referred during the course of their submissions, the appellant had been indicted on a contravention of section 4(3)(b) of the 1971 Act, in which it was alleged that the appellant had been concerned in supplying diamorphine to "another or others and in particular to (three named individuals)". The accused lodged a minute raising a preliminary issue as to the admissibility of the evidence of the three named individuals, which the Sheriff upheld. The Crown then appealed successfully to this court by way of Bill of Advocation The relevant paragraphs from the Opinion of the Court delivered by Lord Nimmo Smith are in the following terms:

"[19] It can be seen from the line of authority referred to above that Kerr (DA) v HM Advocate (1986 SCCR 81) still stands as a statement of the scope of section 4(3)(b) of the 1971 Act, without subsequent qualification or restriction. It is necessary, therefore, for present purposes, to emphasise that, as Lord Hunter said at p 88, the provision covers the whole process of supplying a controlled drug to others, and is designed to catch any person who is concerned at any stage in the process of supplying to others from the beginning of that process to the end. While, as was held in that case, it is not necessary that any actual and completed supply should be proved to have occurred, in order to establish that there was a process of supplying, it is in the nature of such a process that there may in many instances be actual supply from one person to another, 'links in the chain of distribution', as Lord Hunter called them. We agree with the view expressed in Kerr that section 4(3)(b) was purposely enacted in the widest terms. It follows from this that the concept of 'supplying' must be regarded, for the purposes of the statute, as all-embracing, with the result that activities which, when viewed in isolation, would constitute contraventions of section 5(3) or section 4(3)(a), are subsumed into a charge under section 4(3)(b), where the state of the evidence justifies that course. We can see no reason whatever for thinking that Parliament intended section 4(3)(b) and section 4(3)(a) (or section 5(3)) to constitute mutually exclusive categories. On the contrary, the Crown's present practice of libelling a contravention of section 4(3)(b), where justified by the state of the evidence, serves to avoid the difficulties which formerly arose where a multiplicity of charges were libelled, arising from essentially the same course of conduct. As was held in Kerr (DA) v HM Advocate, it is not necessary for proof of a charge brought under section 4(3)(b) that evidence should be led of an actual supply of the controlled drug. But it does not follow from this, as a matter of definition or of logic, that evidence of actual supply by the accused is not relevant to proof that he was concerned in supplying the controlled drug. To say that something is not essential for proof of the commission of a crime is not the same as to say that it is irrelevant to such proof and therefore that the evidence in question is inadmissible. We cannot therefore support Lord Marnoch's reasoning in HM Advocate v Cormack, and must respectfully disapprove of that decision. His Lordship may have had in mind the canon of statutory construction expressio unius exclusio alterius. But that canon is 'not to be applied rigidly or without careful thought for the context: it can be particularly dangerous if applied prescriptively': Craies on Legislation (8th edn), p 604.

[20] It follows from the foregoing discussion that in our opinion the sheriff fell into error in holding that the evidence in question was inadmissible because it would serve to establish that 'the accused was in fact guilty of another crime'. What the Crown are offering to prove, and give notice to that effect in the charge, is that as an aspect of being concerned in the supplying of the controlled drug, the respondent made actual supplies to the three witnesses. This would constitute proof, not of another crime, but of aspects of a course of conduct amounting to a contravention of section 4(3)(b).

[21] What we have said thus far is directed to the manner in which this particular charge is libelled and to the evidence which would be admissible in proof of that charge. That is all that is necessary for our decision. Beyond what we have said about the desirability of avoiding the difficulties which may arise where a multiplicity of charges are brought, arising from essentially the same course of conduct, we are not to be taken to be offering guidance about the manner in which a charge brought under section 4(3)(b) should be libelled. This is a matter for the Crown, depending upon the state of the available evidence in each particular case. In some cases it may be necessary, in order to give fair notice to the accused, to libel instances of actual supply to named individuals, where, as here, there is evidence of such supply. But in other cases this may not be necessary, due regard being had to the decision in Nelson v HM Advocate."

[14] In our opinion, in the circumstances of the present case, it cannot be said that the Crown failed to give fair notice to the appellant of the case against him. Nor can it be said that in order to give fair notice to the appellant it was necessary to include in the terms of the charge an averment of actual supply of diamorphine to Santos. The terms of charge 1, when the indictment was served on the appellant, were, with one qualification, identical to those on which the appellant was convicted. That qualification relates to the date "3 March 2009", which was introduced in place of the date "23 February 2009" by way of amendment of the charge at the close of the Crown case. In the charge, the Crown gave the appellant notice of their intention to lead evidence that the appellant had been concerned in the supplying of diamorphine within the dates and at the public places detailed in the charge.

[15] In advance of the trial, no suggestion was advanced on behalf of the appellant that in preparing for trial the appellant or his legal representatives were uncertain about the Crown's case against the appellant or about the evidence the Crown intended to lead. No criticism was offered that the Crown had in some way failed to disclose evidence in advance of the trial which they had been under a duty to disclose. Nor was it suggested that the lists of label and documentary productions and witnesses failed to provide the appellant's legal representatives with the opportunity of preparing for trial as fully as they deemed it necessary to do so. As is clear from what the sheriff reported as to evidence led at the trial, various items seized by police officers from Santos and other Crown witnesses, such as Tracey Shields and Amanda Mackay, were Crown productions and it is to be assumed were labelled in a manner which indicated where and when they were recovered by police officers.

[16] As we have already noted no preliminary plea was lodged challenging the relevancy of charge 1 and in particular alleging that the charge was so lacking in specification as not to provide fair notice to the appellant. Nor was any objection to the admissibility of evidence relating to the appellant's actings in relation to Santos (or the supply of diamorphine to other named persons) raised by way of a preliminary issue on behalf of the appellant in advance of the trial. In the whole circumstances we are satisfied that the appellant was given fair notice of the charge he faced in charge 1 and indeed of the evidence that the Crown intended to lead in seeking to prove that charge. In our opinion, in the circumstances of this case, it was not necessary to include in the terms of the charge a specific averment of the supply of diamorphine to Santos at a specific place on a specific date. Furthermore, when objection was taken to the line of evidence on 10 July 2009, it could not have been argued at that stage that the appellant and those acting for him had not anticipated, or had in some way been taken surprise by, the evidence that Detective Constable Kevin Johnstone was in the course of giving about the appellant's dealings with Santos. Nor were such arguments advanced before this Court. In the whole circumstances we are not persuaded that there is any merit in the first branch of the submissions of counsel for the appellant. In our opinion the evidence relating to the appellant's dealings with Santos and of his supply of diamorphine to Santos was admissible. It was open to the sheriff to take the view that the evidence which had been heard by the jury, following the objection, was competently before them. In the circumstances of this case, to which we have referred there was nothing unfair to the appellant in the Crown seeking to lead and rely on the evidence of Detective Constable Kevin Johnstone. As counsel for the appellant conceded, it follows that the second branch of his submissions no longer arises. No miscarriage of justice has occurred. The appeal against conviction falls to be refused.

Postscript

[17] Before parting with this case, we would add by way of postscript that judges and sheriffs who preside over trial courts in solemn proceedings are entitled to expect that full use will be made of the statutory procedures provided for in sections 71(2) and 72(3) and (6)(b)(i) of the Criminal Procedure (Scotland) Act 1995. Those provisions enable many objections to the admissibility of evidence to be determined in advance of trial diets, thereby minimising the inconvenience to witnesses and jurors, as well as serving the legitimate interests of the prosecution and the defence. In the present case, we see no obvious reason why the objection to the line of evidence taken during the trial on 10 July 2009 could not have been raised in advance of the trial by way of a preliminary issue and dealt with.

[18] We would also comment that we are extremely doubtful whether the sheriff adopted an appropriate procedure, when objection was taken to the line of evidence during the evidence of Detective Constable Kevin Johnstone. As we have noted, the terms of the court's minutes are difficult to reconcile with what the sheriff reports happened. However, if, as the sheriff recollects it, following the objection being taken, the parties agreed that the evidence be heard by the jury, but under reservation as to its admissibility, that was not the correct procedure to have followed. Once an objection to the line of evidence was taken on behalf of the appellant, that objection required to be determined by the sheriff, if necessary after a trial within a trial, or to be withdrawn.