Appellant: S Collins; Capital Defence Lawyers, Edinburgh

Respondent: A Prentice, QC, (sol adv); Crown Agent

8 August 2013

[1] On 25 October 2012 after trial by jury at Glasgow Sheriff Court the appellant was found guilty by majority of the following offence:

"On 19 October 2011 at Bowfield Crescent, Glasgow you... did have in your possession a controlled drug, namely diazepam a class C drug... with intent to supply it to another or others in contravention of section 4(1) of the [Misuse of Drugs Act 1971]; CONTRARY to the [said] Act section 5(3)."

[2] The appellant had no previous convictions. She was sentenced to 300 hours community service. She now appeals against conviction.

[3] Read short, the evidence against the appellant consisted of her approaching her car in the company of Robert Anderson. The appellant got into the driver's seat and Mr Anderson got into the passenger's seat. As the car moved off, police officers stopped them. Mr Anderson was seen to reach behind the driver's seat and was doing something with his right hand towards the rear of the driver's seat. Police constable McNish gave evidence that "it looked like he was hiding something". The police officers then searched the appellant and Mr Anderson, and found nothing of significance. They searched the car, and found five sealed, white, drink-can-sized tubs containing diazepam tablets in a zipped compartment at the back of the driver's seat.

[4] Mr Collins for the appellant submitted that the sheriff erred in repelling a "no case to answer" submission. As was stated in the appellant's note of appeal:

"The drugs were not on open display and were located behind the driver's seat where the appellant was sitting, and therefore not within her view. There was no evidence to indicate that the appellant was aware of the presence of the drugs and the appellant was one of two occupants of the motor vehicle at the time. In the circumstances it is submitted that the learned sheriff erred in law in holding that there was sufficient evidence that that appellant was in possession of the drugs."

[5] Mr Collins drew attention to the appellant's case and argument, where it was contended, under reference to evidence of the two police officers, that there was insufficient evidence of the appellant's knowledge of the existence of the drugs to justify a conviction. Reference was made to Bath v Her Majesty's Advocate 1995 SCCR 323, but Mr Collins accepted that each case turns on its own facts and circumstances. Mr Collins further submitted that the locus of the offence was not the home address of either the appellant or Mr Anderson, and thus the circumstances could be construed as part of an ongoing journey. He also emphasised that the items behind the driver's seat would only be visible if the seat was tilted forward.

[6] On behalf of the Crown, the advocate depute submitted that the factors which allowed an inference of knowledge to be drawn were as follows:

1.     The appellant was the registered keeper and owner of the vehicle.

2.     The appellant was driving the car when the police intercepted it, and had the keys to the car.

3.     The drugs were within five tubs, each about the size of a soft drinks can.

4.     That something within the zipped pocket would be obvious if the seat were pushed forward.

5.     The co-accused was seen by the police leaning into the back of the car.

6.     The evidence did not suggest that the co-accused carried the items to the car.

7.     There was no evidence of others having access or using the car (apart from the co-accused as a passenger on 19 October 2011).

Those factors, in the advocate depute's submission, amounted to a sufficiency, and it was for the jury to assess the import of the evidence.

[7] In assessing whether there was a case to answer, the sheriff was entitled to take the Crown case at its highest. From the sheriff's report, it can be seen that the two police officers gave evidence that:

1.     The appellant was the owner and the keeper of the car. She had the keys to the car.

2.     The appellant was seen walking towards her car in the company of Mr Anderson.

3.     There was no evidence that the appellant or Mr Anderson were carrying something which might be (or might contain) five drink-can-sized tubs.

4.     There was no evidence that the appellant and/or Mr Anderson took time to stow away items in the car; rather the evidence was that both got into the car, and the car moved off, with the appellant in the driver's seat and Mr Anderson in the passenger's seat. When the police intercepted them, the appellant was driving the car and had the keys to the car.

5.     When the officers stopped the car, Mr Anderson was seen to put his hand down in the area behind the driver's seat. Although it was not clear what he was doing, one police officer thought "it looked like he was hiding something".

6.     When the appellant and Mr Anderson were searched, nothing of significance was found.

7.     When the car was searched, five white, sealed, drink-can-sized tubs containing diazepam tablets worth between £2545 and £5090 were found in the zipped compartment at the back of the driver's seat.

8.     The outline of the five tubs within the zipped compartment could not be seen unless the seat was pushed forward.

9.     The appellant and Mr Anderson were co-operative.

[8] In our opinion, a jury would be entitled to infer the relevant knowledge from factors 1 to 5 and 7 above. So far as the evidence summarised in factors 6, 8 and 9 above are concerned, and the submission that the journey could be construed as a continuing one, we do not accept that such evidence would necessarily disentitle a jury from that inference.

[9] Of course we accept that evidence led by the defence might easily displace the case made against the appellant. Any number of situations could be envisaged, from evidence about the car having been left insecure and therefore accessible to others, to evidence about others having recently used the car, to evidence about Mr Anderson (or some other person) having been seen with the five tubs or having been seen putting the tubs where they were found. But until such evidence was led, there was, in our opinion, by the close of the Crown case, sufficient evidence to entitle the sheriff to repel the "no case to answer" submission.

[10] We accordingly refuse the appeal.