APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Eassie Lady Paton Lord Bonomy	[2011] HCJAC 23 Appeal No: XC235/03 OPINION OF THE COURT delivered by LORD EASSIE in NOTE OF APPEAL by WILLIAM JAMES CAIRNS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead, M. Mackenzie; John Pryde (for J. P. M. Mowbery, Glasgow)

Respondent: P. Ferguson Q.C., A.D; Crown Agent

8 March 2011

Procedural History

[1] On 13 August 2001 the appellant was convicted after trial in the High Court of Justiciary in Glasgow of a charge of contravening section 4(3)(b) of the Misuse of Drugs Act 1971. The charge alleged that on 25 January 2001 in a motor car F502 ASJ and in a motor car P67 WYS at Appin Road, Cumbernauld Road, Flat 2/1 290 Cumbernauld Road, Mallaig Road, all in Glasgow and elsewhere, the appellant was concerned in supplying the drug commonly known as "ecstasy".

[2] On 9 November 2001 the appellant lodged a note of appeal under section 110 of the Criminal Procedure (Scotland) Act 1995 which contained a number of grounds of appeal directed against conviction and also a ground of appeal against sentence. His application for leave to appeal was refused on 27 March 2002 by a single judge. At the request of the appellant the application for leave was reconsidered by the court, constituted as a triumvirate bench, and on 31 January 2003 leave to appeal was granted as respects one ground of appeal relating to conviction, namely ground of appeal 2(a), and as respects ground 10, being the single ground relating to sentence.

[3] Thereafter those then acting for the appellant lodged a series of documents in relation to the grounds of appeal. On 13 May 2003 there was lodged a document headed "Additional Grounds of Appeal", which was tendered in supersession of an earlier attempt at adding a further ground of appeal and which was given the process number "1B". That document was then subject to a "sifting" process and was refused leave to appeal by both a single judge and, on reconsideration, by a bench of three judges, the latter refusal of leave being on 22 December 2003.

[4] In the meantime there was lodged a document dated 4 June 2003 which bore to be an appeal under section 65(8) of the 1995 Act respecting a decision, taken by Lord Dawson on 23 May 2001, prior to the trial, to extend the 110 day period; that decision was also the subject of ground of appeal 1(a) of the original note of appeal. The document dated 4 June 2003 was marked "1C". At a three judge procedural hearing on 30 June 2004 there was then tendered a further document, which was marked "1D", setting out "additional grounds of appeal". At that hearing on 30 June 2004 the court "refused to allow additional ground 1C" and, as respects the additional ground of appeal tendered at the bar on that date (i.e document 1D), refused all but ground 5, relating to sentence, which the court allowed to be heard "without passing the sift". The appeal was then continued to be heard on the ground of appeal relating to conviction, namely that contained in ground of appeal 2(a) of the note of appeal lodged on 9 November 2001. A diet for the hearing of that appeal was set down for 18 February 2005.

[5] However, very shortly before that diet, namely on 9 February 2005, the solicitors then acting for the appellant addressed a letter to a member of the staff of the High Court which sought by that informal means to make an application under section 107(8) of the 1995 Act, respecting the second sift refusal to grant leave in respect of the grounds in the note of appeal, apart from ground of appeal 2(a) and the ground relating to sentence. At the diet fixed for 18 February 2005 the court intimated that it would hear argument on ground of appeal 2(a) of the note of appeal and that a further hearing would be required to consider, in terms of section 107(8), the other grounds of appeal which had not received leave at the second sift. Having heard argument on ground of appeal 2(a) the court made avizandum. On 11 March 2005 the court advised in respect of that ground of appeal and refused to uphold it. The application under section 107(8) was continued to a further hearing, described in the minute as a "procedural hearing".

[6] There then ensued a regrettably large number of hearings most in the form of procedural hearings, at least to some extent stemming from the fact that those representing the appellant withdrew from acting and the appellant in consequence sought himself to navigate the case through what had become procedurally somewhat complicated waters. It is unnecessary to attempt to catalogue these procedural hearings but we shall refer shortly to the hearing held on 14 July 2010. Other than recording that at a diet held on 1 February 2008 the court refused the appeal against sentence, it is sufficient to say that the application under section 107(8) which the court had been prepared to accept as having been made in the solicitor's letter of 9 February 2005 eventually came before us on 26 November 2010 for a consideration of the merits of the application under that section.

[7] At the procedural hearing held on 14 July 2010 to which we have just referred, Mr Scott, the solicitor advocate representing the appellant, advised the court that ground of appeal 1(a) of the note of appeal, which the letter of 9 February 2005 reformulated (the original ground having been framed on a factual misunderstanding), had been included in the "additional grounds of appeal" tendered and refused on 30 June 2004. Mr Scott accepted that ground of appeal 1(a), as reformulated, could not be the subject of any further application for leave to appeal since it had already been refused by the court. Mr Scott then listed the grounds of appeal in the note of appeal in respect of which leave was to be sought in terms of section 107(8). The minute of the hearing then records that, Mr Scott having withdrawn from acting, the appellant personally confirmed to the court that "he agreed with the position in relation to grounds of appeal as explained to the court by Mr Scott".

The Circumstances of the Offence
[8] It is convenient to preface discussion of the application under section 107(8) by recording briefly the circumstances of the case.

[9] Those circumstances are not particularly complicated. They are described by the trial judge in his report as follows:

"The evidence disclosed that the police were undertaking a surveillance operation in respect of certain individuals and motor vehicles on 25 January 2001 concerning illegal drugs. The appellant was a target of their operation. He was first sighted by police officers shortly after 5.00pm. He was driving his BMW motor car, registered number F502 ASJ, and was followed through various streets on to the M80 motorway and thereafter from the M80 motorway to Alexandra Parade. At Alexandra Parade the BMW stopped and thereafter moved off followed by a VW Passat, registered number P67 WYS, owned by the co-accused Boal's wife and driven by the co-accused, Summers. The co-accused Boal was a passenger in said vehicle. The BMW and VW Passat drove through various streets of Glasgow and ultimately turned into Marwick Street where they stopped. The appellant got out of his vehicle, removed his child who was a passenger in the vehicle and carried her towards a tenement in Cumbernauld Road. Shortly thereafter the appellant re-emerged from the tenement carrying the child. He placed the child in the BMW motor car and thereafter walked up the street carrying a bag. He stopped at the VW Passat and leaned into the front passenger side. He handed the bag to the co-accused Boal. Thereafter both vehicles again set off in convoy through various streets until they stopped behind each other in Mallaig Road shortly before 7.00pm. At that time police officers detained all three accused and recovered from the VW Passat the bag which had been handed into the car by the appellant Cairns. The bag was found to contain 2,060 Ecstasy tablets. The estimated value of the drugs recovered was in the range of £10,300 to £20,600."

The Grounds of Appeal in Issue

[10] Although, as already mentioned, at the procedural hearing on 14 July 2010 the appellant's solicitor stated that ground 1(a) could not be, and was not, insisted in, before us counsel sought to resurrect this ground of appeal, which is concerned with the extension by seven days of the 110 day time limit contained in section 65(4)(b) granted by Lord Dawson on 23 May 2001. Counsel contended that an appeal under section 65(8) was outstanding; that there was in any event no time limit for bringing such an appeal; and therefore there was reason to allow this ground of appeal in the note of appeal (as reformulated in the letter of 9 February 2005) to be argued.

[11] We are not prepared to grant leave to argue this ground of appeal even if so reformulated. First, as Mr Scott recognised on 14 July 2010, the ground of appeal was before the court for its consideration on 30 June 2004 in the document 1C and was refused by the court on that date. The appellant personally confirmed the position as explained by Mr Scott. The ground of appeal having been refused by the court and that having been accepted by and on behalf of the appellant it cannot now be resurrected. But in any event, the matter is without any merit. The application made by the Crown to Lord Dawson for the extension of time was not opposed by the appellant. No appeal under section 65(8) was taken immediately following Lord Dawson's decision - which would have been the only proper time to present an appeal under that provision - and the case proceeded to trial with the defence acquiescing in the extension of time, which they had not opposed.

[12] The remaining paragraphs of ground of appeal 1 are not the subject of the application under section 107(8). As already mentioned, ground of appeal 2(a) has been considered and refused by the court. Ground of appeal 2(b) is in these terms:

"It was central to the Appellant's defence that he had indeed passed a bag into a vehicle containing the two co-accused but that the bag which he passed was in fact defence label number 1 for the co-accused David Boal and not Crown label number 1 which was later found to contain the controlled drugs libelled. The Learned Trial Judge appears to misrepresent the case to the jury. Specifically, at page 35 of the said Charge (lines 4 to 8) the Trial Judge directs the jury that the ultimate issue for them was whether the police officers were telling the truth or were lying when they said they saw a bag being handed into the Passat. It submits that this misrepresents the case of the Appellant. It was never disputed that a bag had been passed into the vehicle and it was never suggested that the police were lying in respect of this piece of evidence." [original emphasis in bold text removed]

[13] While this ground of appeal states that it was central to the appellant's defence that he had passed a bag to the co-accused in the vehicle in question but that it was not Crown label 1 (the "Celtic" bag), it is to be noted that the appellant did not give evidence to that effect and indeed there was no evidence from any other source that the appellant had passed a different bag into the vehicle (cf. the trial judge's report, pages 9 and 14). As is evident from the terms of the trial judge's charge to the jury, a number of criticisms were made by defence counsel of the evidence of the police officers respecting their observation of the passing of a bag into the car. Accordingly, what the jury required to accept, as a condition for conviction, was the evidence of the police that a bag was passed into the car by the appellant; and that the bag which the police maintained they saw being passed by the appellant into the car was indeed the Celtic bag. In these circumstances the directions which are given by the trial judge at pages 34, 35 and 37 of the transcript of his charge to the jury are, in our view, entirely apposite and no misdirection was involved. In our view this ground of appeal is plainly unarguable.

[14] Ground of appeal 2(c) is a contention that the trial judge misdirected the jury by omitting to instruct the jury that anything said in an extra-judicial statement by one accused, at the making of which the other accused was not present, was not evidence against that other accused. In his response, the trial judge explains in his report that he did not give such a direction for the reason that nothing said by the appellant's co-accused in such extra-judicial statements was incriminatory of the appellant. Counsel accepted that such was the case and that nothing said in the statements was incriminatory of the appellant. But, said counsel, such a direction would be a standard direction and might be seen as an omission when matters were "looked at in the round". In our view it is important for a trial judge not to encumber his directions to the jury with instructions which are unnecessary in the particular circumstances of the case. Since, as counsel accepted, the extra-judicial statements made by the appellant's co-accused contained nothing which incriminated the appellant, we consider this ground of appeal also to be unarguable.

[15] Ground of appeal 3 contains a number of paragraphs but, as counsel recognised, these are simply components of a general complaint of what is said to be lack of balance by the trial judge in the extent to which he referred in his charge to the evidence in the case. It is, we think, unnecessary to rehearse here the terms of the various sub-paragraphs.

[16] The extent to which in charging the jury the trial judge entered into discussion of the evidence is limited. In our view it is appropriately limited to the extent necessary to assist the jury by focusing issues. In particular, so far as the appellant is concerned, the trial judge was at pains to focus the relevant issues as being whether they accepted the police evidence that the appellant had passed a bag into the car and whether they could accept the police evidence as establishing that the bag so passed was the Celtic bag. The trial judge reminded the jury of the criticisms of the police evidence made by counsel, including discrepancies between their testimony and entries made in the surveillance log. The trial judge also referred to the only defence witness, Mr Deeney, and reminded the jury that they had to consider the evidence given by that witness. We have considered each of the sub-paragraphs both individually and collectively and the terms of the charge to the jury given by the trial judge, but we are unable to decern any arguable complaint of misdirection or improper lack of balance on the part of the trial judge.

[17] Ground of appeal 4 reads thus:

"Evidence of surveillance by police officers was central to the Crown case against the appellant. No evidence was led in the course of the trial that the appropriate surveillance authority had been granted in terms of the Regulation of Investigatory Powers (Authorisation Extended to Scotland) Order 2000."

The relevance of that reference to that statutory instrument in the ground of appeal was not understood by the trial judge, nor, we think it fair to say, anybody else engaged in the trial or this appeal. We were not taken to the particular terms of the statute, the Regulation of Investigatory Powers (Scotland) Act 2000. However the Act is essentially concerned with making certain surveillance operations not unlawful, rather than with the specific question of the admissibility of evidence. But assuming in favour of the appellant that the consequence of conducting surveillance without the appropriate authorisation were to be that of providing grounds for challenging the admission at trial of evidence flowing from that surveillance, the fact is that, as counsel accepted, no objection was taken at trial to the admission of such evidence. That being so, objection cannot now be taken on appeal - see section 118(8) of the 1995 Act. Moreover, we were informed that authorisation for the surveillance had indeed been granted and that a document to that effect was a production at the trial. In these circumstances we consider that this ground has no arguable basis.

[18] Ground of appeal 5 in the note of appeal is not included in the application under section 107(8).

[19] Ground of appeal 6 is concerned with the evidence of Mr John Deeney who, as already indicated, was the one witness called in the appellant's defence. The ground of appeal narrates that during the witness' evidence he was warned three times by the trial judge regarding contempt of court. The ground of appeal continues by narrating that the warnings were given in the presence of the jury and the terms in which the ground is framed include a submission that this would have had an effect on the jury's consideration of the witness's evidence. It is accordingly submitted that the appellant was denied a fair trial.

[20] The court has a transcript of the evidence of Mr Deeney. The examination of the witness on behalf of the appellant began by it being put to the witness that he was a drug dealer, to which proposition the witness declined to answer on the grounds that he did not need to answer questions which might incriminate him. Counsel for the appellant thereafter proceeded, at relative length, to elicit from the witness evidence that he had been convicted, after trial, of extortion in the High Court of Justiciary. He also elicited from the witness that on earlier occasions in the same court, and after trial, he had been convicted of assault and robbery. Then, in response to a question as to whether the witness had borrowed a particular car, the witness provided the answer that the location was in Dumbarton. The following interchange then occurred (transcript, page 13):

"You have just obviously made that up there because you are shrugging your shoulders? - So you can tell by somebody shrugging their shoulders that they are a liar?

BY THE COURT: Mr Denney ... ? - Mr Deeney.

Mr Deeney you are not here to argue with counsel. Just answer the question? - Well I have answered the question. Because I shrugged my shoulders I was called a liar."

The next judicial intervention occurs during cross-examination by counsel for the co-accused and is to be found on page 26 of the transcript:

"Mr Deeney, the very first question I think you were asked or almost the first question was whether or not you were a drug-dealer. You remember that? - Yes.

And you refused to answer on the basis it would incriminate you, is that right? - Yes. If I said to you do you take cannabis .....

BY THE COURT: Mr Deeney, would you just answer the questions? - I am just answering the questions.

You are not. If you carry on, Mr Deeney, you stand the risk of being found in contempt of court. Do you understand that? - Yes.

And do you understand that contempt of court can result in a penalty? - I do.

Well, just answer the questions. - (No answer.)"

A further interchange occurs at page 38, after the Advocate depute had, in summary, put to the witness that because he had been convicted after trials in which he had given evidence in his defence he was "not a stranger to telling lies" when he turned up in court. Following the witness's response that "I never said I told lies in any of them. I was just found guilty in them all." The following exchange ensues:

"So everyone else was wrong? The Jury were wrong and you were the person who was right? - (Inaudible) juries. I have only been in two Jury trials.

Well, judges, juries, they were all wrong but it was you ...? - And most of the other ones I pled guilty to as well. Have you noted that? It wasn't all trials. Most of them I put my hands up to so you can't make out I have been in this courtroom about 50 times and I pled not guilty 50 times.

BY THE COURT: Mr Deeney, will you remember what I said? This is not a discussion between you and anyone else. Just answer the questions? - I am answering the questions.

You are at serious risk of being found guilty of contempt? - (No answer.)"

Lastly, at pages 41 to 42 of the transcript of the evidence there is this:

"That is what I thought. You see, would it not be the position that people who are dealing in drugs would be in your experience secretive about their activities? - Is that why the jails are full of drug dealers?

BY THE COURT: Mr Deeney ...? - The man asked me a question and I have answered the question.

Will you answer the question in a straightforward manner and don't engage in banter? - (No answer.)"

[21] It is thus apparent, as the trial judge states in his report, that the interventions by the trial judge were in respect of the witness' having sought to debate or argue with examining counsel. Nothing that the trial judge said by way of warning of contempt properly implied any criticism of the veracity of the witness's evidence. The warnings were directed to an unwillingness on the part of the witness simply to answer questions without indulging in argument with the examiner. In these circumstances we consider that this ground of appeal also lacks arguable substance. It may also be noted that, from the whole tenor of the examination of the witness by counsel for the appellant, Mr Deeney was not presented by counsel to the jury as being a witness of good character.

[22] Ground of Appeal 7 concerns evidence elicited, in the absence of any notice of incrimination, by counsel for the co-accused David Boal from a police officer to the effect that a surveillance operation was being carried out and that the target of the operation was the appellant. Counsel for the appellant accepted that no objection had been taken at the trial to the leading of that evidence; but, he maintained there had been a prejudicial effect upon the appellant.

[23] In our view, evidence that the appellant was the subject of surveillance is not in itself incriminatory. It is only the results of the surveillance which may, depending on their nature, be incriminatory. However, even assuming that the evidence was incriminatory and that it was objectionable in the absence of a notice of incrimination of the appellant lodged by the co-accused, no objection was taken at the trial. In view of the terms of s. 118(8) of the 1995 Act, it cannot now be argued on appeal that the evidence should not have been admitted. This ground of appeal is therefore unarguable.

[24] Counsel for the appellant took grounds of appeal 8 and 9 together. It should be noted however that the second of the two paragraphs of ground of appeal 9 which are both given the enumeration "(ii)" - that is to say, the paragraph relating to information from a juror - is not part of the section 107(8) application and is not insisted upon. Essentially what is sought to be argued in the other paragraphs of ground 9 and ground 8 is an "Anderson" ground of appeal, critical of the appellant's trial counsel and advisers as not having properly advanced his defence. Paragraph (iv) of ground of appeal 9 raises a point discrete from the major thrust of that criticism, which relates to the approach taken by counsel to the unavailability as a witness at the trial of the "loggist" of the surveillance log kept as part of the surveillance operation. It is set out in the ground of appeal that the appellant did not wish the trial to proceed in the absence of the loggist and that his senior counsel took the decision to proceed to trial in the absence of that witness "contrary to the instructions of the accused". Further, trial counsel for the appellant associated himself with an objection taken by a co-accused to the police witnesses being referred to the terms of entries in the surveillance log. It is said that the log contained entries noted by the loggist from relevant police officers to the effect that those officers had seen the appellant with a "black poly bag" - which would not match the description of the Celtic bag, which the officers maintained had been passed into the car.

[25] Counsel for the appellant stated that after the objection had been taken, in the course of the evidence of the second police witness, no further reference was made to the entries in the log. The absence of reference to entries in the log was prejudicial to the appellant in the sense that the descriptions of the bag noted therein were different from the descriptions given by the police in their oral evidence. Accordingly as a result of the decision taken by counsel, evidence of the entries in the log was not available to the jury. Counsel further observed that trial counsel had declined to make any comment on this ground of appeal. It was therefore arguable that an Anderson ground existed.

[26] The objection which was taken at the trial by counsel for the co-accused appears essentially to be an objection to the police surveillance witnesses' giving evidence primarily by reference to the terms of the log. While the objection was upheld, the Advocate depute appears to have been permitted to reserve his contention that the log might be used as an aid memoire. Further, it is not the case that, following the sustaining of the objection, no further reference was made to the log. In his supplementary report, provided at the request of the second sift judges, the trial judge discusses in some detail the references in the evidence to the existence within the log of the entries referring to the appellant's having placed into the Passat a black bag. The matter was raised and explored in some detail in the evidence of DC Stephen Tanner. His testimony preceded the evidence of DC Kellock, in the course of whose evidence the objection was taken. Notwithstanding the objection's having been sustained, in the course of cross-examination DC Kellock was taken to the entry in the log where the bag was described as black and references were also made to the log in the course of subsequent witnesses as more fully described by the trial judge in his supplementary report. Trial counsel were thus not disabled or inhibited from referring to the log in the course of cross-examination of the relevant police witnesses. As the trial judge indicates, the jury could have been in no doubt that there were entries in the log recording messages from the relevant police officers which might be seen as inconsistent with the descriptions given by those police witnesses in their oral evidence at the trial.

[27] In those circumstances we do not see what material additional assistance might have be been derived by trial counsel through the presence of the loggist, who was on long term sick leave from the police force. The extensive experience of the loggist as a police officer was brought out in the course of the trial. We are thus unable to see how the decision of trial counsel to proceed in the absence of the loggist can be said to meet the requirements for an Anderson ground of appeal. It is not, and cannot be, said that the line of defence instructed by the appellant was not advanced at the trial. The decision to proceed in the absence of the availability of the loggist was not a decision contrary to the line or nature of the defence instructed by the appellant. It was a decision essentially within the forensic, tactical judgement of defence counsel, respecting which counsel is entitled to exercise his own judgment and is not subject to the direction of the client. The approach of trial counsel cannot be said to be a decision so unreasonable that no competent counsel would have taken it. Whether to proceed in the absence of the witness was essentially a matter for the discretion of counsel. We consider that, in so far as related to this branch of the ground of appeal, this ground also must be rejected.

[28] The second branch of the Anderson ground relates to counsel's decision not to make a submission of no case to answer (see ground of appeal 9(iv)). What is said to be the principal discrepancy between the evidence of the two police witnesses to which this paragraph of the ground of appeal refers is set out in paragraph (c) of ground of appeal 3 and concerns whether the vehicle into which the bag was passed was parked at the junction of Appin Road and Walker Street or at the junction of that road with Marwick Street, that junction being some 50 yards to the north. In our view, such discrepancies as are there indicated come nowhere near such divergence of testimony as would ever have had provided a prospect of a successful no case to answer submission. The decision not to make such a motion was plainly within the reasonable exercise by counsel of his discretion in the conduct of the trial. This aspect of ground of appeal 9 is in our view manifestly inarguable.

[29] In these circumstances we have ultimately come to the conclusion that this application under section 107(8) of the 1995 Act must be refused in its entirety.

[30] In conclusion, we make mention of the fact that prior to the hearing of this application the solicitors acting for the appellant sent to the Justiciary Office a document purporting to be additional grounds of appeal framed by the appellant personally. We do not think it appropriate to send to the court a document framed by the client, which those acting for him have not framed and for which they do not accept professional responsibility. But in the event, counsel for the appellant disclaimed any adoption by him of those purported, proposed grounds of appeal and made no motion respecting them.

[31] Accordingly, the only ground of appeal against conviction for which leave to appeal was granted having been refused on 11 March 2005, and we having concluded that the application under section 107(8) falls to be refused in its entirety, the appeal against conviction is exhausted. As already mentioned, the appeal against sentence was heard and refused on 1 February 2008.