Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 118

HCA/2015/001179/XC

Lady Paton

Lord Bracadale

Lord Malcolm

OPINION OF THE COURT

delivered by LORD BRACADALE

in

APPEAL AGAINST CONVICTION AND SENTENCE

by

JACQUELINE ANNE JOHNSTON

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Collins, sol adv;  Capital Defence Lawyers

Respondent:  Niven Smith AD;  Crown Agent

2 December 2015

Background  

[1]        On 2 March 2015 at the Sheriff Court at Falkirk the appellant was convicted of two contraventions of the Misuse of Drugs Act 1971 section 4(3)(b):  charge 1 by being concerned in the supply of amphetamine, a class B drug;  and charge 2 by being concerned in the supply of phenazepam, a class C drug.  Charge 1 was restricted to a single date, 6 December 2012, while charge 2 covered a period between 28 May and 6 December 2012.  The sheriff sentenced the appellant to 3 months’ imprisonment on charge 1 and 18 months’ imprisonment on charge 2, the sentences being ordered to run concurrently.  The appellant has appealed against both conviction and sentence.

[2]        The locus of the offences was the home address of the appellant in Bo’ness.  The appellant’s son, who had a record for drug related offences, resided with her from time to time.  The police attended at the house on 6 December 2012 to execute a search warrant which had been obtained in respect of the son.  The appellant was found in the living room of the property and her son was in a bedroom upstairs.  In the course of the search drugs and related paraphernalia were found in the house and in the appellant’s car.  Small wraps of plastic containing amphetamine powder were found in the bedroom of the appellant and a self‑sealing freezer bag containing a small quantity of blue tablets was found in the living room.  The appellant was found to be in possession of £255 in cash and a mobile telephone.  A quantity of plastic gloves was found on the kitchen table.  Within the car belonging to the appellant there were three white plastic tubs wrapped in carrier bags.  Each tub contained about 1000 blue phenazepam tablets. 

Appeal against conviction
[3]        Prior to the trial the appellant lodged a minute challenging the admissibility of certain opinion evidence which it was anticipated would be given by Detective Constable Fraser Gordon.  It was said that that evidence should not be admissible as DC Gordon was not entitled to be treated as an “expert”.  At a preliminary hearing the sheriff heard the evidence of DC Gordon.  The sheriff repelled the objection and in due course the case went to trial.  DC Gordon gave similar evidence at the trial to that which he had given at the preliminary hearing.  This appeal is taken against the decision of the sheriff to repel the objection to the admissibility of the opinion evidence of DC Gordon.

[4]        DC Gordon was 35 years of age with seven years’ police service.  He had worked in the Proactive CID unit and the Central Scotland Drugs Unit.  DC Gordon had also worked as a community officer in the Stirling area during which he specialised in drugs cases.  He had had daily contact with drug users and had reported more than two hundred drug related cases to the Crown.  DC Gordon had completed a three week drug detection course at the police training college in 2013; he had been trained in testing drugs and had been involved in that work for some five years; he had also attended various other training courses, including a drugs detective officers’ course in 2015.  He also gave evidence of his experience in interrogating mobile phones.  He explained that when he did this, he would look for slang words (“street slang”) for drugs in text messages.  He considered himself able to give an opinion about whether a person found in possession of drugs was concerned in supply.  Against that background he gave opinion evidence in relation to the items recovered at the house of the appellant and certain texts in her mobile telephone.  He also confirmed that he had been operationally involved in the appellant’s case, having been present when the warrant was executed and having interviewed the appellant.

[5]        Mr Collins, who appeared on behalf of the appellant, spoke to his case and argument and submitted that DC Gordon did not have the relevant qualifications, expertise and experience to give opinion evidence (Hainey v HM Advocate 2013 SLT 525 Lord Clarke giving the opinion of the court at para [49]).  Mr Collins contrasted DC Gordon’s experience with that of officers who were members of the Statement of Opinion (STOP) Unit.  He did not have the experience or training which officers in that unit typically had.  Members of the STOP Unit had training qualifications, practical experience and engaged in exchange of information with others, including European police forces.  Mr Collins did not go so far as to suggest that because of the existence of the STOP Unit an officer who was not a member of that unit could not give opinion evidence at all.  He contended, however, that DC Gordon did not have the necessary expertise.

[6]        The advocate depute explained that the STOP Unit was created because in the past there had been an increase in drugs cases and much time of drugs squad officers was being occupied by attending court to give opinion evidence when they could be out carrying out other duties.  In addition, there was a danger that their usefulness in carrying out surveillance could be compromised.  The advocate depute submitted that DC Gordon did have the necessary experience to provide the kind of opinion evidence which he did.

[7]        In White v HM Advocate 1986 SCCR 224 it was held that a member of the drug squad could give evidence as to whether a particular quantity of LSD found on the accused was likely to be for personal use or suggested that she was dealing in drugs.  In delivering the opinion of the court the Lord Justice Clerk (Ross) observed at p 225 that:

“Police officers who have served for some time with the Drugs Squad do acquire knowledge of such matters as the quantity of drugs which a drugs user would consume in a day or in a week and so forth.  Provided such a witness’s qualifications as a police officer and his experience in the Drugs Squad are first established, such evidence, in our opinion, is clearly competent.  Evidence of this nature is not competent only to medically qualified witnesses.  In practice, evidence of this kind is frequently led at trials involving alleged contraventions of the Misuse of Drugs Act 1971 and, in our opinion, such evidence is quite competently led”.

[8]        In Ul-Haq v HM Advocate 1987 SCCR 433 a police officer gave evidence that the size of a block of cannabis resin was such that it would not be for the appellant’s own use.  The Lord Justice General (Emslie) giving the opinion of the court at p 436 said:

“We had an interesting discussion about who is and is not an expert, but the substance of the matter is that the opinion evidence given by the police officer provided some guidance for the jury in deciding what inference they themselves ought to draw from the size of the block in question.”

[9]        Mr Collins did not suggest that these cases were no longer good law.  In our opinion the evidence of DC Gordon was of a similar nature to the evidence given by the police officers in these cases.  The fact that members of the STOP Unit regularly give such evidence does not mean that an officer with appropriate experience who is not a member of the unit is not able to give such evidence.  We are satisfied that having regard to the experience of DC Gordon the sheriff was entitled to repel the objection to the admissibility of his opinion evidence.  The appeal against conviction must be refused.

Appeal against sentence
[10]      In relation to the appeal against sentence Mr Collins submitted that the appellant was a 52 year old woman.  She had a short record of previous convictions which included, in addition to three contraventions of the Road Traffic Act, one previous conviction in 2011 under section 5(2) of the Misuse of Drugs Act 1971 in respect of which she had been admonished.  She had the care of her 15 year old grandson whom she had brought up since infancy.   She had been employed in drugs counselling in a group which she had helped to set up.  She had been supplying a terminally ill friend with phenazepam;  this was reflected in the text messages on her mobile telephone.  The criminal justice social work report had found the appellant to be suitable for a community based disposal including carrying out unpaid work.  Prior to being released on interim liberation she had spent 4 months and 5 days in custody which was the equivalent of an 8½ month sentence.  While the sheriff had identified that the threshold for a custodial sentence had been passed he had not addressed the option of an alternative to custody which was available.  In any event, if a custodial sentence was appropriate, the sentence imposed on charge 2 was excessive.

[11]      We consider that the circumstances of this case are somewhat unusual.  The appellant is a woman of mature years who has brought up her grandson and carried out drug support work in the community.  The circumstances of the commission of the offence libelled in charge 2 were unusual.  While in our opinion the sheriff was entitled to take the view that a custodial sentence was the only appropriate disposal, we consider that in the particular circumstances of this case the sentence on charge 2 was excessive.  We shall allow the appeal  to the extent of quashing the sentence on charge 2 of 18 months imprisonment and substituting therefor a sentence of 9 months’ imprisonment.