Appellant: C Shead; Gilfedder & McInnes, Solicitors, Edinburgh

Respondent: Ms G Wade AD; Crown Agent

23 August 2011

The background circumstances

[1] On 15 October 2010, at a sitting of the High Court at Livingston, the appellant was found guilty as libelled by a majority verdict of the jury on a charge in the following terms:

"Between 1 May 2007 and 2 October 2008, both dates inclusive, at [a series of locations and addresses in the Edinburgh area] and elsewhere in Edinburgh, Bonnyrigg, Midlothian, Scotland and England you Bernard John Paul Flannigan, Robert Gemmell and Stuart Dempsey McMillan, while acting with Christopher Williams, Thomas Peter Harvey, Paul Francis Macauley Hislen, John Paul Busuttil, Gary Michael Macnamara and Brian Massey, all c/o Lothian and Borders Police, Edinburgh and with others meantime to the Prosecutor unknown, were concerned in the supplying of a controlled drug, namely cocaine, a class A drug specified in Part 1 of Schedule 2 to the aftermentioned Act to another or others in contravention of section 4(1) of said Act: contrary to the Misuse of Drugs Act 1971, section 4(3)(b); you Bernard John Paul Flannigan did commit this offence while on bail, having been granted bail on 5 June 2008 at Edinburgh Sheriff Court."

It should be recorded that the Crown did not proceed against the co-accused of the appellant, Robert Gemmell; furthermore, the Advocate depute withdrew the libel in respect of the co-accused Stuart Dempsey McMillan at the close of the Crown case.

On 15 October 2010, the appellant was sentenced to eight years imprisonment, that period being ordered to run from the date of its imposition.

[2] The circumstances of the offence may be briefly summarised in this way. The appellant and others were the subjects of a police surveillance operation. The evidence of the appellant being concerned in the supplying of cocaine was, in the words of the trial judge, "fairly overwhelming". His position at trial was that he accepted that he was friendly with and associated with persons referred to in the charge, who were involved in drug dealing. However, he maintained that their involvement had been unknown to him and that he himself had not been involved. Those persons included Robert Gemmell, Christopher Williams, Thomas Peter Harvey, Paul Francis Macauley Hislen, John Paul Busuttil, Gary Michael Macnamara, Brian Massey, David Togher, Mark Richardson and James Carlin. There was a great deal of surveillance evidence, telecommunications evidence, and other evidence, which pointed clearly to the appellant being concerned in the drugs supply operation. The evidence disclosed a major cocaine transportation and distribution operation. Cocaine was imported from the Liverpool area and was then mixed with other substances and distributed. Engineering presses were used to compact the adulterated cocaine into blocks for onward distribution.

[3] On 20 December 2010 the appellant lodged a note of appeal against conviction containing a ground of appeal in the following terms:

"Before the trial the appellant lodged a special defence of incrimination. That being so it is submitted that the trial judge should have directed the jury in respect of the meaning of and the approach the jury should take to the special defence. In particular it is submitted that the jury should have been directed that if the evidence led in respect of the special defence was believed or at least raised a reasonable doubt then they were obliged to acquit. Accordingly there has been a miscarriage of justice."

[4] It should be noted that the appellant himself gave evidence to the effect that he was friendly with several of those said to have been involved in the drug supplying operation, but that he was unaware of their involvement. In his evidence he dealt in detail with the particular allegations made against him. Evidence was led in support of the defence case from a number of witnesses. The special defence lodged on behalf of the appellant was to the effect:

"....that the alleged offence on the indictment, if committed, was not committed by the panel but by Robert Gemmell and Crown witnesses Christopher John Williams, Thomas Harvey, Paul Francis Macauley Hislen, John Paul Busuttil, Gary Macnamara, Brian Massey, and David Togher."

[5] Commenting upon the terms of the ground of appeal, the trial judge states at page 9 of his report to this court:

"This was not a case where the appellant maintained that the police surveillance officers who observed him had mistaken him for one or other of the incriminees ...

The appellant's position was that notwithstanding the appellant's contact and dealing with those persons - persons shown to have been concerned in the supplying of cocaine - he had been ignorant of their involvement at the material times and he had not been concerned in the drug supplying operation. The live issue for the jury was not whether the incriminees had been concerned in the supplying of cocaine - it was common ground that they had been.

The live issue was whether the appellant was concerned also. That was the way matters were focused in the Crown and the defence cases. In their speeches to the jury neither the Advocate depute nor counsel for the appellant made reference to the special defence.

In the circumstances I did not think it was necessary or appropriate to give specific directions to the jury in relation to the special defence. I gave the jury the standard directions as to the presumption of innocence, burden of proof, standard of proof and corroboration (transcript of charge pages 9 to 11). I made clear that these rules applied only to the Crown case, and that they did not apply to the defence case (page 11, lines 11 to 15). I re-emphasised this a little later (at page 11, lines 20 to 24). The jury could have been in no doubt that these rules applied only to the Crown and not to the defence.

I went on to direct them:

'If you believe any evidence which clears him, acquit him, even if that evidence stands alone. Even if you do not completely believe it but it leaves you with a reasonable doubt as to his guilt, acquit him'. (page 11, line 24 to page 12, line 4).

I repeated this direction towards the end of the charge:

'If you believe the accused or any other evidence exculpating the accused acquit him. Even if you do not but that evidence leaves you with a reasonable doubt about the Crown case, acquit him'. (page 30, lines 18 to 22).

The directions I gave appear to me to be the appropriate ones in the circumstances of the case. In any event, I do not believe that the absence of a specific direction in relation to the special defence resulted in a miscarriage of justice. The evidence implicating the appellant was cogent and compelling. The jury were clearly directed that it was for the Crown to prove the appellant's guilt beyond reasonable doubt, and that if any of the evidence left them with a reasonable doubt about his guilt they were to acquit."

Submissions of the appellant

[6] Counsel for the appellant submitted that the trial judge had failed to give the standard direction apposite where there was a special defence of incrimination. There was no dispute that such a direction had not been given; the trial judge acknowledged that that was the case. Such a direction was a standard one which ought normally to be given. The departure from the normal approach required to be justified. It was submitted that the reasons given by the trial judge for not giving the direction were not tenable in the circumstances of the present case.

[7] If the jury had been properly directed it would have been open to them to acquit the appellant in relation to the special defence, if the evidence related to it had raised a reasonable doubt in their minds as to his guilt. In any event, it was important that the purpose and effect of the special defence should have been explained to the jury lest there might have been any misunderstanding on their part as to the approach to be taken to it. In the circumstances of the case, the failure to give the standard direction constituted a material misdirection of the jury, which was productive of a miscarriage of justice.

[8] At this point in the appellant's submissions, the question was raised by the court as to whether, in relation to a charge brought under section 4(3)(b) of the Misuse of Drugs Act 1971, it was ever appropriate to have a special defence of incrimination. It was suggested that certain authorities indicated that an offence under that statutory provision was personal to the accused person concerned; such a charge involved an allegation that that person and no one else had been involved in some specific way in the supplying of controlled drugs. It might be that other persons had also been concerned in such supply, but any offences committed by them would be separate offences personal to them. In connection with this issue, reference was made to the observations of Lord Justice General Emslie in Clements v Her Majesty's Advocate 1991 S.C.C.R. 266, at page 273 A to B, the observations of Lord Marnoch in Her Majesty's Advocate v Hamill 1998 S.C.C.R. 164, at page 166 A to C, and those of Lord Justice General Roger and Lord Bonomy in Salmon v Her Majesty's Advocate 1998 S.C.C.R. 740 at pages 763 B and 771 B, respectively.

[9] Counsel for the appellant acknowledged that the view reflected in these authorities might lead to the conclusion that a special defence of incrimination was not appropriate in relation to a charge brought under section 4(3)(b). If that were so, it might be that the direction desiderated concerning the special defence of incrimination which had been tabled in this case would be inappropriate. However, there might be a situation in which a special defence of incrimination might nevertheless be appropriate in relation to a charge brought under section 4(3)(b), despite the effect of the authorities discussed, for example, where evidence was led of involvement in the supply of controlled drugs by an individual who was mistakenly identified by witnesses as a particular accused person. However, counsel recognised that that was not the position in the present case. It might be that, as observed by the trial judge, the issue in this case was simply whether the appellant himself had been shown to be involved in the supply operation. Nevertheless, it was submitted that, where there was in fact a special defence of incrimination before the court, it should not simply be ignored by the presiding judge. If there was no evidence to support it, the jury should be directed to ignore it. Otherwise, a direction should be given explaining to the jury the nature and significance of the defence. In connection with this submission, counsel relied on Siels v Her Majesty's Advocate 1997 S.C.C.R. 518. That case involved a charge of murder. The accused person had lodged a special defence of incrimination of two men. Each of them gave evidence denying that he had stabbed the deceased. The appellant did not give evidence and there was no direct evidence to support the special defence. In his charge to the jury the trial judge told them that, once evidence had been led, a special defence had no practical effect whatsoever and any evidence for or against it simply had to be considered along with the rest of the evidence, and that the onus of proof was on the Crown throughout. The appellant was convicted of culpable homicide and appealed to the High Court on the ground, inter alia, that the trial judge had failed to direct the jury that if they believed the special defence, or if it created a reasonable doubt as to the appellant's guilt, they must acquit. It was held that the jury could not have failed to understand that their duty was to consider all the evidence, including such evidence as might be said to support or relate to the special defence, to see whether or not anywhere in the evidence there was material giving rise to a reasonable doubt, and that there was no material misdirection. The appeal on that ground was refused. Reference was made in particular to the observations of Lord McCluskey, delivering the opinion of the court at pages 525G to 526A. Despite what was decided in that case, counsel submitted that the misdirection here was material. The jury had not been told what to do about the special defence, although it had been read to them.

The submissions of the respondent

[10] The Advocate depute submitted that there was no misdirection in the circumstances of this case. Even if there was, it did not amount to a material misdirection and accordingly the appeal should be refused. The notice which the appellant had lodged here was a composite notice, being one in terms of section 78(1) of the Criminal Procedure (Scotland) Act 1995 since it sought to incriminate Robert Gemmell, who was a co-accused, as well as other persons, and of a special defence. The position of the Crown was that it did not suggest that it was incompetent or inappropriate for the appellant to have lodged the notice in this case; the contention simply was that it was not necessary for the trial judge to have mentioned it, given the other directions which he had given to the jury. In support of that submission the Advocate depute relied on Collins v Her Majesty's Advocate 1991 S.C.C.R. 898. The case was concerned with the situation in which a notice of incrimination of a co-accused was not read to the jury, nor was mention made of it in his directions to the jury by the trial judge. Having regard to the circumstances of the case, the court had held that there was no miscarriage of justice. Reliance was also placed on Dunn v Her Majesty's Advocate 1986 S.C.C.R. 340. There it was held that, whereas in a case where a special defence was supported by evidence, the jury must be specifically directed that if they believe that evidence they must acquit, it would not necessarily be fatal if the judge did not also specifically say that, if the evidence created a reasonable doubt in their minds, they must acquit, provided he made it clear that if any evidence created a reasonable doubt in their minds, they must acquit. The charge in that case could have left the jury in no doubt that if any of the evidence left them in reasonable doubt, they must acquit. The appeal was refused. While it might be that the directions given or not given in the present case did not follow the best practice, as outlined in Siels v Her Majesty's Advocate at page 526, it was submitted that the jury here could have been left in no doubt whatsoever as to the nature of their duty in relation to the evidence. Accordingly there was no misdirection. The appeal should be refused.

The decision

[11] Before us there was, as noted above, considerable discussion at the instigation of the court as to the appropriateness of a special defence of incrimination in a case where the charge in question was one brought under section 4(3)(b) of the 1971 Act. The Crown, however, did not take any such point in seeking to resist the appeal. Having regard to what was said in Her Majesty's Advocate v Hammill and echoed in Salmon v Her Majesty's Advocate, we think that there may be considerable force in the view that an allegation made under that provision may be personal to the accused against whom it is made. The allegation is, in essence, that he or she had been concerned in some particular way in the supplying of a controlled drug. Thus some other person could not be concerned in that particular way in such supply. If some other person was concerned in supply, that would be an offence committed in some particular way by them. Thus, in principle, it may be that a special defence of incrimination would be inappropriate in that kind of case. However, we can envisage that there might be an evidential situation in which it might be appropriate in relation to a charge under section 4(3)(b) to have a special defence of incrimination. For example, it might be that an accused person faced an allegation supported by evidence that that person did certain specific things in relation to the supplying of controlled drugs. The position of the accused might be that while those specific things may have occurred, they were done by another person, who had been misidentified as the accused. In a situation like that where the allegation was that certain specific things had been done by a person, it might be appropriate for an accused to lodge a special defence if his position was that those particular things had not been done by him but by someone else. Thus it seems to us that it cannot be said that in all cases where a charge is brought under section 4(3)(b), a special defence of incrimination would be inappropriate. Whether it would be or not would depend on the particular circumstances of the case. However, as the trial judge points out in his report to this court, the present case was not one in which the appellant's position was that he had been misidentified as doing things which had been done by another. His position in this case was as has already been described. In these circumstances we very much doubt whether it was necessary for the appellant to have tabled a special defence of incrimination here.

[12] All of the foregoing is, however, academic for the purposes of disposing of this appeal, since it must be recognised, of course, that such a special defence was in fact lodged on the appellant's behalf without objection and that the trial judge did not give specific directions in relation to it; the question therefore is whether the trial judge's omission to refer to the special defence constitutes misdirection. We have come to the conclusion that it does not. In that connection we are influenced by what was said by Lord Justice General Emslie in Dunn v Her Majesty's Advocate at pages 344 to 345. There he said:

"In this case the trial judge did not give, in terms, the particular direction desiderated by the appellant but, having considered the charge as a whole, we have come to be of opinion that it could have left the jury in no doubt that their task was to consider the whole evidence and that if any of it left them in reasonable doubt as to the guilt of the accused the Crown case must fail".

The court concluded that it had not been demonstrated that the charge given in that case was flawed and the appeal was refused. Looking at the directions which the trial judge did give in the present case, referred to above, we have reached the same conclusion. The decision in Siels v Her Majesty's Advocate seems to us to lead to the same conclusion. At page 525, Lord McCluskey said:

"We do not consider the jury could have failed to understand that their duty was to consider all the evidence, including such evidence as might be said to support or relate to the special defence of incrimination, to see whether or not anywhere in the evidence there was material giving rise to a reasonable doubt. We do not consider there was any material misdirection in this case."

Here, the directions which the trial judge gave at pages 11 and 30 of the transcript of his charge, make it quite clear that the jury were instructed that if there was any evidence which exculpated the accused which they believed they should acquit. Even if they did not believe evidence of such a nature, but that it left them with a reasonable doubt about the Crown case, likewise they should acquit. In the light of that, there can be no doubt that the jury would have clearly understood the proper approach to be taken. We consider therefore there was no misdirection in the present case. It was said on behalf of the appellant that, because the notice of incrimination had been read to the jury here, in accordance with normal practice, some directions should have been given in relation to it by the trial judge, in order to avoid lingering questions in the minds of jurors. While it might have been desirable to give some assistance to the jury in that respect, we cannot conclude that there could have been any confusion in the minds of the jurors here, having regard to the directions that were given.

[13] For all of these reasons we refuse this appeal.