Scottish High Court of Justiciary Decisons

 

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 23

HCA/2014/2547/XC

 

Lord Eassie

Lord Malcolm

Lord Wheatley

 

OPINION OF LORD EASSIE

in

APPEAL AGAINST CONVICTION

by

PETER McGARTLAND

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  S Whyte Solicitor Advocate; Beltrami & Co, Glasgow

Respondent:  Scullion QC, AD;  Crown Agent

13 March 2015

[1]        In his opinion in this appeal Lord Malcolm helpfully summarises the evidence in the case and the submissions made to the sheriff and to this court.

[2]        The first of the two grounds of appeal argued on behalf of the appellant is directed to the rejection by the presiding sheriff of the submissions made on behalf of the appellant in terms of section 97 of the Criminal Procedure (Scotland) Act 1995.  The initial contention advanced to the sheriff was that there was no case to answer as respects charges 1 to 6 on the indictment.  The first charge alleged a contravention of section 41(1)(a) of the Prisons (Scotland) Act 1989 by introducing into HM Prison, Bowhouse, Kilmarnock a drug, namely Tamoxifen.  Charges 2 to 7 inclusive alleged a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971 by being concerned in the supplying, at the prison, of a control drug.  Each charge related to a different controlled drug.  In advancing the submission restricted to charges 1 to 6 inclusive it was not disputed by the appellant’s solicitor, Mr Whyte, that there was a sufficient basis for allowing charge 7 to be considered by the jury.  Charge 7 related to a package containing the drug Trifluoromethylphenylpiperazine - “TFMPP”. The plastic “cling film” package in which the TFMPP tablets were contained had been found to have, at the knot,  some cellular material yielding a DNA profile which had a match with a profile derived from a sample of a body fluid taken from the appellant.  However, in the course of the submission the sheriff by reference to Campbell v HM Advocate 2008 SCCR 847 suggested that the submission might be extended to embrace also charge 7. That suggestion was adopted by Mr Whyte.

[3]        The reasons given by the sheriff in her report for rejecting the submissions include the observation that the “DNA [on the package with which charge 7 was concerned] was very strongly linked to the accused so much that it could be said to be a match”.  Given the probability results spoken to by the forensic scientist, the solicitor advocate for the appellant did not take issue before us with that observation.  The thrust of his argument – as respects charge 7 – was largely reflective of Campbell v HM Advocate and was to the effect, put shortly, that the plastic material on which the cellular material yielding the DNA profile was found was a similar moveable item to the black refuse bag in that case; and the scientific evidence in the present case was not able to determine when or how the cellular material in question was deposited upon the plastic film. 

[4]        It is, I think, obvious that the extent to which the surface upon which such cellular material is found can be said to be a moveable item with possibilities for prior innocent contact or secondary transfer of materials depends in the large measure on the nature of the article itself.  In the present case, in contrast to the item in issue in Campbell v HM Advocate, the package containing the TFMPP tablets was fashioned out of the plastic film, commonly described as cling film, and sold in rolls for domestic or other wrapping uses.  The evidence, from the scientists who examined the article, was that the cellular material was on the outside of the portion of the film in which the knot securing the package was formed.  One of the forensic scientists explained that she “targeted” the knot area, because that was the area handled by the person making such a package; and while she could not exclude other possibilities, including a secondary transfer, tying the knot was a possible explanation for the presence thereon of the cellular material yielding the DNA profile. 

[5]        In my view, given the particular nature of the article on which the relevant cellular material was found, namely cling film, I have come to the view that it was open to the jury to conclude that the material had been deposited during the act of making the knot in the cling film, or after the knot had been fashioned.  It was unlikely that the piece of cling film would have had any prior discrete circulation other than within a roll of film.  The facts of the present case thus appear to be more similar to McPhail v HM Advocate (XC558/11) unreported,  than Campbell v HM Advocate.  But, that said, each case may depend on its particular facts.

[6]        In the circumstances I consider that despite her invitation to Mr Whyte to consider extending the submission to charge 7, the sheriff was correct to repel that extended submission of no case to answer. 

[7]        The focus of Mr Whyte’s initial – and principal – argument confined to charges 1 to 6  was different from what might be said to have been the omnibus submission embracing also charge 7.  Put very briefly, the argument was that while the DNA evidence might enable an inference to be drawn that the appellant had some involvement with the package containing the TFMPP tablets with which charge 7 was concerned, there was no such evidence linking the appellant with any of the other packages or with the picture frame within which the drugs had been concealed.  None of the other packages contained TFMPP.  None of those other packages were constructed from plastic film; each of those packages consisted of a latex finger cut from a rubber glove.  There was therefore no evidence demonstrating that the appellant had any involvement with those packages; or that he had any knowledge that the TFMPP tablets might be included in that larger consignment which was received in the prison.  In response, the Crown’s contention was that the packages were similarly sized and similarly knotted and all had been carefully placed within the hollowed out wooden picture frame.  The appellant’s son was also in the same prison.  Those circumstances, it was submitted by the prosecutor, might permit the inference that the appellant was concerned not only in the supply of the TFMPP drugs but also the entire consignment. 

[8]        I have reached the conclusion that the sheriff was also entitled to reject this branch of the submission for the appellant.  There were no doubt distinctions which might be drawn between the plastic package with the TFMPP tablets and the various other drugs found within the wooden picture frame.  But there were also certain other features of similarity, to which the Crown drew attention, and in the event I do not think it can be said that a jury could not draw the inference for which the Crown contended.  In a situation such as that in  the present case, in which the real evidence before the jury was capable of yielding varying inferences, the decision as to which inference, if any, should be drawn was ultimately a matter for the jury. 

[9]        However, the submission advanced by the defence respecting charges 1 to 6 inclusive did foreshadow an issue which is of some importance in this particular case and which was to exercise the jury when the jury came to deliberate.  Plainly, an article supplied to one person may thereafter be included by that person along with other articles in a larger consignment which he then further supplies to another recipient.  In my view, at least in the absence of knowledge that the article supplied would be included with such other articles in the larger, ultimate consignment, the person who supplies the first article at the anterior stage cannot properly be said to be concerned in the supply of the other articles.  By way of illustration, the baker who simply sells some mince pies which his customer then includes in a Christmas hamper with chocolates and sherry which he gifts to a friend is not concerned in the supply to the friend of the chocolates and the sherry. 

[10]      Although the issue had been to an extent foreshadowed in the no case to answer submission, in charging the jury the sheriff dealt with matters in very general terms.  The material part of the transcript of her charge[1] reads:

“The words ‘being concerned in’ also requires some knowledge on the part of the accused, but it only requires him to have known that he was involved in a drugs supplying operation.  It requires proof that what was being supplied was the drugs and here the nature of the drugs found in packages isn’t in dispute.  The Crown doesn’t have to prove the accused actually knew it was those specific drugs that were being supplied”.

 

The ambiguity inherent – in the peculiar circumstances of this case – in the phrase “a drugs supplying operation” troubled the jury.  They sought further directions on this matter and carefully formulated in two questions in writing:

 

            “You said ‘knowledge that he was involved in a drug supplying operation’.

            Do we need to satisfy ourselves beyond reasonable doubt that he was involved in the    supply of each individual package of drugs?  Or is the belief that he was involved in            the supply of one of the drugs sufficient to cover the charges for all on the basis of             being involved in the drug supply chain?

           

[11]      The response given by the sheriff to the jury’s questions gives rise to the second ground of appeal (misdirection).  The sheriff said:

“Charges 2 to 7, as I have said to you before, are all the same breach of the same Act.  Although in giving you my general directions I had to speak widely to you about selecting evidence, I think I can reasonably say to you in the circumstances of this case the evidence from which you can draw is the very same evidence for each of the charges.  It’s not necessarily one where we’ve had witnesses speak to one charge and not another.  The evidence that you’ve got relates to all of these, all of these matters.

 

If you accept or what of that evidence you accept is available to you to use to decide whether or not you feel these charges have been established beyond reasonable doubt so you have that whole body of evidence.  Then you must go through each charge one by one and on the basis of whatever body of evidence it is that you accept you must satisfy yourself beyond reasonable doubt that the Crown have proved that individual charge.  I cannot go beyond that.  The weighing of that, the issue of whether you are satisfied beyond reasonable doubt, are matters entirely for yourself.”

 

[12]      In my opinion the response which the sheriff gave to the jury’s questions was inadequate.  It did not really answer the jury’s questions.  What the questions required were supplementary directions specifically tailored to the issue raised by those questions.  I consider that the jury should have been clearly directed to the effect that if a person had knowledge that he was engaged in the supply of one drug which subsequently came to be associated in a further supply along with other, different drugs, he would not be concerned in the supplying of those other drugs unless he had knowledge, or reason to believe, that the drugs which he had supplied were to be included along with those other drugs in the larger supply.  In my view, and bearing in mind the generality employed in her charge to the jury, what the sheriff said in response to the request for further directions did not convey that instruction to the jury.  If anything, it wrongly suggested an affirmative answer to the second of the questions (and the correspondingly negative answer to the first). 

[13]      In considering the materiality of this misdirection it is, I think, of some significance that the jury acquitted the appellant of charge 1 on the indictment.  That charge was in effect a charge of supplying a drug Tamoxifen in the prison by concealing it in a package in the picture frame in which the other drugs (the controlled drugs) were similarly concealed.  The inference which may be drawn from that acquittal is that the jury were not satisfied that the appellant had been responsible for the act of concealing the drugs within the wooden picture frame; or for posting it to the prison. 

[14]      In these particular circumstances I have come to the conclusion that the jury were indeed misdirected and that the misdirection was material as respects the conviction of charges 2 to 6 inclusive.  In my view, the appeal falls to be allowed to that extent and the convictions on charges 2 to 6 should be quashed. 

 

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 23

HCA/2014/2547/XC

Lord Eassie

Lord Malcolm

Lord Wheatley

 

OPINION OF LORD MALCOLM

in

APPEAL AGAINST CONVICTION

by

PETER McGARTLAND

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  S Whyte Solicitor Advocate; Beltrami & Co, Glasgow

Respondent:  Scullion QC, AD;  Crown Agent

13 March 2015

[15]      The appellant was convicted by a jury of six charges of contraventions of section 4(3)(b) of the Misuse of Drugs Act 1971.  He was acquitted of a charge of breach of section 41(1)(a) of the Prisons (Scotland) Act 1989.  He was sentenced to 30 months imprisonment.  This appeal is based on the proposition that the sheriff should have upheld the submission of no case to answer made at the close of the Crown case.  It is also contended that the sheriff misdirected the jury.

 

The evidence
[16]      A parcel was received and intercepted by the authorities at Kilmarnock prison.  It was addressed to a serving prisoner, LP, who had been asking about it.  It contained a framed blank canvas covered in cellophane.  A number of packages containing controlled drugs of various kinds were hidden within the frame.  All of the packages, bar one, enclosed the drugs within fingers of latex gloves, which were knotted at one end.  One package was made up of clear polythene or clingfilm, again knotted at one end.  All the packages, 29 in number, are shown in a photograph which was lodged in court.

[17]      The parcel was sent from a post office at Newlands, Glasgow.  There was no CCTV evidence and no “paper trail” regarding the parcel and its posting.  A mark enhancement officer untied the knot on the polythene bag and swabbed the area.  His training was to the effect that such knots are good DNA targets.  The swab was passed to biology for DNA analysis.  All of this was confirmed by a colleague. 

[18]      Two forensic scientists spoke to the appellant’s DNA being on the swab – with a finding of a one in 158 million match.  They could not say that this meant that the appellant had tied the knot, nor how his DNA came to be on the package.  Secondary transfer was a possibility.  There had been no usable DNA found on other swabs taken from other packages.  One of the scientists explained that knots are targeted because it is known that someone will have touched it.  The DNA finding could be the result of the appellant having tied the knot, but there are other possibilities. 

[19]      When interviewed by the police, the appellant stated that his son (not LP) was an inmate in the prison.  The appellant denied any knowledge of the package and the overall parcel.  He could not explain the presence of his DNA on the knotted area of the package. 

 

The no case to answer submission
[20]      It was submitted that there was insufficient evidence in relation to the 28 other packages of drugs (charges 2 - 6) – nor for the alleged breach of section 41(1)(a) of the Prisons (Scotland) Act 1989 (charge 1).  (The “DNA bag” was the subject of charge 7.)  The other drugs were wrapped separately and individually packaged.  No forensic evidence linked the appellant to the other drugs, nor to the frame and the parcel itself.  There was no link between the appellant and LP, and no evidence as to who posted the parcel.  While the jury could infer that the accused had something to do with the drugs in the polythene bag, it would be speculation to go further and link him with the larger consignment of drugs sent to the prison. 

[21]      The Crown submitted that if there was enough to convict on charge 7, there was sufficient for the other charges.  All of the packages were hidden in the frame, which was then sent to the prison, including the one with the appellant’s DNA.  It is a reasonable implication that the appellant was linked with all of the drugs.  He had tendered no explanation for the presence of his DNA on the knot.  There was a link with the prison, given that his son was an inmate. 

[22]      In response to an observation made by the sheriff that perhaps all of the charges should stand or fall together, the no case to answer submission was extended to cover all the charges.  It was submitted that, as in Campbell v HMA 2008 SCCR 847, the DNA was present on an innocent everyday item.  The Crown emphasised that it was seeking to establish that the appellant was part of a chain of supply of all the drugs, not just those in the DNA bag. 

[23]      The sheriff repelled the submission.  It was noted that the other packages were formed from latex glove fingers.  However, in the whole circumstances “the DNA hit” on the polythene package called for an explanation.  The case was not “on all fours” with that of Campbell.  The DNA was on the knot of the bag, thus it could be inferred that the appellant knotted the bag.  The bag was then placed in the frame along with the others, which each contained controlled drugs.  All of them were packed tightly together.  Furthermore the appellant’s son was an inmate in the prison. 

 

The jury’s verdict
[24]      The jury acquitted the appellant of charge 1, but convicted him on all the alleged breaches of the 1971 Act.  These charges included the various types of drugs in the other packages, namely diamorphine, diazepam, cocaine, cannabis and stanozolol.  The DNA package (charge 7) contained trifluoromethylphenylpiperazine (TFMPP – a class C drug). 

 

The submissions at the appeal hearing
[25]      Before this court, the submission for the appellant mirrored that before the sheriff.  It was said that the appeal might be on weaker ground in respect of charge 7.  However there was insufficient evidence to infer that the appellant was involved in the consignment of the drugs sent to the prison.  Emphasis was placed upon the different type of packaging, namely, the latex fingers.  There was no evidence that drugs were in the polythene bag when the accused’s DNA was deposited.  The deposit of his DNA could not be placed in time or circumstance.  Various cases were mentioned, though it was accepted that they are each fact sensitive, and afford little direct guidance. 

[26]      For the Crown, the advocate depute submitted that there was sufficient evidence of a drugs supply operation involving the whole parcel and all the drugs.  The question is whether there was enough evidence as to the appellant “being concerned” in that operation, in the sense intended by section 4(3)(b) of the 1971 Act.  The proven circumstances allowed a legitimate inference that he was;  especially in the absence of any contrary explanation.  The knot area was targeted because people tying knots are likely to leave DNA there.  The photograph shows that the all the packages were knotted, and were all of a broadly similar size, thereby allowing their concealment within the frame.  The jury could infer that the appellant tied the knot, and did so as part of the wider drug supply operation.  The DNA bag was not a neutral object – it was found in the frame along with the others.  The accused’s involvement with one bag, plus the surrounding circumstances, allowed the jury to infer that he was aware of and involved in the overall drugs supply to the prison.  At the very least, an explanation was called for.  In addition, there was a link with the prison through the appellant’s son.  Again reference was made to various decided cases. 

 

Decision on the first ground of appeal
[27]      The sheriff could uphold the submission of no case to answer only if the jury would not be entitled to find the charges proved.  When considering this question the court must guard against any temptation to trespass onto the jury’s domain.  It is not for the court to weigh up the strengths and weaknesses of the evidence, but rather to ask whether a legitimate view of guilt could be taken.  Judges will sometimes be encouraged to reach a view on proof beyond reasonable doubt, but, except in a clear case, this is a matter for the jury, who will have been told that they are “the masters of the facts”.  That said, there must be a sufficiency of evidence.  There may be straightforward cases, such as a complete lack of corroboration.  Others may be more difficult, for example where one is drawing a distinction between, on the one hand, a justifiable inference from established facts and, on the other hand, unwarranted speculation. 

[28]      The key question in the present appeal is whether the evidence allowed the jury to conclude that the appellant was participating in the supply of the various packages of drugs to the prison.  In my view, the evidence regarding the reason for targeting the knotted area of the packages, and the presence of the appellant’s DNA on that part of the polythene package, allowed the inference that he was involved in the supply of the drugs contained in that package.  Furthermore, it was found alongside others of similar size and construction (albeit made of different materials).  This is vividly demonstrated in the said photograph.  All the packages were tightly packed and hidden in the frame, and then sent to the prison.  In the absence of any contrary explanation, this allowed the jury to reach the view that it had been proved that the appellant was knowingly participating in, and therefore concerned in the whole operation.  The fact that his son was an inmate in the prison was an additional factor to which the jury could have regard as providing some link between the appellant and the prison. 

[29]      On many occasions the court has recognised that there can be circumstances which call for an explanation, and that the absence of such from an accused person is a relevant consideration for the jury.  (Langan v HMA 1989 SCCR 379 is a good example.)  While all accused persons have the right to silence, they should be aware that if there is an innocent explanation, but it is never tendered, there can be consequences.  It was suggested that, for all is known, the appellant could have supplied the DNA package to other persons who were then solely responsible for it and the other packages being sent to the prison.  Be that as it may, there was no suggestion of that from the appellant at his police interview, and, as was his privilege, he chose not to give evidence at the trial.  In my view the sheriff was correct to refuse the no case to answer submission, thus I reject the first ground of appeal.

 

The misdirection ground of appeal
[30]      I agree with the reasoning of Lord Eassie on this ground of appeal.  It follows that I also agree that the appeal should be upheld to the extent that the convictions on charges 2 ‑ 6 fall to be quashed.

 

Postscript
[31]      In her report concerning the misdirection ground of appeal, the sheriff stated that she “followed closely the guidance provided to the judiciary in such matters.”  Plainly she was referring to the jury manual produced by the Judicial Institute.  While improvisation on the criminal standard of proof and the burden on the Crown may well provoke an appeal, in general the jury manual does not remove the trial judge’s duty to tailor the charge to the specific circumstances of the case, all with a view to giving proper and clear directions to the jury.  Simply to repeat the terms of the manual is no guarantee against a misdirection appeal.  In his foreword to an earlier edition of the manual, the then Lord President, Lord Hamilton, emphasised that every charge is unique.  “Accordingly the sole responsibility for stating the law and formulating accurately and comprehensively the appropriate directions to deliver must lie with the judge or sheriff presiding over the case.”  The manual is no more than a first port of call, providing a useful, but non‑authoritative, checklist of points to bear in mind.  Juries are entitled to a bespoke charge adapted to the evidence and to the particular issues arising in the trial. 

 

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 23

HCA/2014/2547/XC

Lord Eassie

Lord Malcolm

Lord Wheatley

 

OPINION OF LORD WHEATLEY

in

APPEAL AGAINST CONVICTION

by

PETER McGARTLAND

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  S Whyte Solicitor Advocate;

Respondent:  Scullion QC, AD;  Crown Agent

13 March 2015

[32]      I agree with the disposal in this case proposed by your Lordship in the Chair and Lord Malcolm and have nothing to add.