Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 65

HCA/2016/000103/XC

Lord Menzies

Lord Bracadale

Lady Cosgrove

OPINION OF THE COURT

delivered by LORD MENZIES

in

APPEAL IN TERMS OF SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995

by

ANDREW JONES

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  C M Mitchell;  Virgil M Crawford, Stirling

Respondent:  R Goddard, Solicitor Advocate;  Crown Agent

17 March 2016

[1]        The appellant, Andrew Richard Jones is charged on an indictment with a total of eleven charges involving controlled drugs, involving allegations of contraventions of section 4(3)(b) of the Misuse of Drugs Act 1971 and section 170(2) of the Customs and Excise Management Act 1979.

[2]        The case was set down for a trial before a sheriff and jury at Stirling Sheriff Court at a sitting in February 2016.  The appellant lodged an objection by way of minute in terms of section 71(2) of the Criminal Procedure (Scotland) Act 1995 to the admissibility of evidence of a witness whom the Crown had given notice that it intended to lead at the trial, namely Crown witness number 28, Detective Constable Kevin Plank.

[3]        The sheriff heard evidence from DC Plank as to his qualifications and experience between 11 and 15 February 2016 and on 16 February 2016 he repelled the appellant’s minute.  It is against that decision that the appellant has now appealed to this court.

[4]        There are two broad grounds on which the appellant relies in his objection to the admissibility of DC Plank’s evidence.  These are (first) that expert evidence of Kevin Plank is not admissible on the basis that he does not have the relevant qualifications, competence, expertise and experience necessary to provide an opinion in relation to the issues arising in the case and (second), separatim, he is not an independent witness who provides an impartial opinion based upon facts presented to him and accordingly ought not to be regarded as an “expert” witness in the case.  These grounds were amplified in the very full note of appeal to this court and in submissions to us by Miss Mitchell today.  We have also had the benefit of a very comprehensive note by the sheriff and written and oral submissions for the Crown. 

[5]        The sheriff had before him the judgment of the UK Supreme Court in Kennedy v Cordia Services [2016] UKSC 6, which was issued on the day prior to the hearing before him on this minute, and he applied his mind to the four considerations set out at paragraph 44 of the judgment which was said to govern the admissibility of skilled evidence.  Only two of those considerations were said to be in issue in the present case namely the second, whether the witness has the necessary knowledge and experience and the third, whether the witness is impartial in his or her presentation and assessment of the evidence.  With regard to the knowledge and experience of the witness, Miss Mitchell submitted that although he had a generalised knowledge of controlled drugs, on the basis of his own evidence, he did not have sufficient experience of the drugs in question which were all within a family of drugs known as cathinones namely methylethcathinone, pentedrone hydrochloride, clephedrone and dibutylone.  In respect of the third of these clephedrone, this drug had only been recovered twice in Europe before.  Miss Mitchell submitted that some of the content of DC Plank’s report, Crown label 16, was, on his own admission, lifted almost word for word from the Ask Frank Government funded website  and this should not be cloaked with the respectability of an expert opinion.

[6]        As the sheriff observes in the final paragraph of his note:

“The jury will not however form a view upon the basis of the report but will do so by evaluating the witness’s whole evidence.  The form and content of the witness’s report exposes him to the prospect of considerable challenge under cross‑examination and part of that may be attributable to the unreasonable haste with which it was perforce prepared.  The style is unsophisticated, in certain respects unprofessional and much of the content based upon factual assumption or hearsay statements which should be differently phrased.  These aspects go to the quality of the evidence which it is for the jury to assess for themselves.  My concern in relation to the present minute is with the admissibility of this witness’s evidence.  For all of the reasons I have discussed, I cannot be persuaded that in the final analysis, the evidence of DC Plank is inadmissible by being incapable of meeting the required criteria and so I repel the minute”.

We agree with those views.

[7]        As was observed by the UK Supreme Court in Kennedy v Cordia Services at paragraph 42: 

“It is common in Scottish criminal trials for the misuse of drugs for the Crown to adduce the evidence of the policeman who has the experience and knowledge to describe the quantities of drugs that people tend to keep for personal use rather than for supply to others.  Recently in Myers, Brangman and Cox v The Queen [2015] UKPC 40;  2015 3 WLR 1145 the Judicial Committee of the Privy Council approved of the use of police officers, who had special training and considerable experience of the practices of criminal gangs, to give evidence on the culture of gangs, their places of association and the signs that gang members used to associate themselves with particular gangs.  In giving such factual evidence, a skilled witness can draw on the general body of knowledge and understanding in which he is skilled, including the work and literature of others.  But Lord Hughes, in delivering the advice of the Board at paragraph 58, warned that “care must be taken that simple, and not necessarily balanced, anecdotal evidence is not permitted to assume the robe of expertise”.  To avoid this, the skilled witness must set out his qualifications, by training and experience, to give expert evidence and also say from where he has obtained information, if it is not based on his own observations and experience.”

[8]        These matters have been the subject of authoritative statements of the law in Scottish criminal appeals – e.g. White v HMA 1986 SCCR 224, Ul Haq v HMA 1987 SCCR 433, Hainey v HMA 2013 SLT 525 and Johnston v HMA 2015 HCJAC 118.  We note in passing that in the last case the experience and knowledge of the witness objected to but eventually allowed does not appear to have been as great as that of DC Plank. 

[9]        What is objected to in the present case is not just the report, Crown label 16, but the whole of the intended evidence of DC Plank.  We consider that on the basis of the evidence heard by the sheriff, the attack on DC Plank’s expertise and experience is unfounded.  In paragraph 7 of his Note the sheriff records that the witness “undertook further training from time to time, attending a one week Drugs Course at the Police College in about 2009 and a four week Detection of Crime Course.  The latter included telecommunication tactics, means of gathering information from and analysing mobile telephones.  He attended a two day course in Kent on cannabis cultivation in about 2012.  In about November of that year he engaged in a two day conference on Legal Highs along with other STOP colleagues.  It was a multi-agency event involving drug addiction workers, NHS staff, social workers as well as police.  Attendees learned about the effects of substances, saw images of the forms of substances and learned how they were sold.  The conference heard from individuals who had personal experience of abusing substances.”  In paragraph 8 the sheriff notes that DC Plank has provided input to a course on Legal Highs in relation to the Khat plant from which cathinone substances such as clephedrone and mephedrone are derived.  At paragraph 12 the sheriff notes that the witness “explained that he regularly undertakes what he characterised as open source research by reading books, examining social media and the internet.  The BBC was said to be one of the best sources.  He is at court often and prepares by looking through the internet for potential trends.  An example of a website he might visit is Blue Light, a forum for drug users to exchange views on information and drug use.  In relation to the drug clephedrone he could gain an understanding about usage amounts, effects and symptoms.  He also consults on an almost daily basis the Scottish Police Intelligence Database.  Every day there are new intelligence submissions relating to drugs, who is dealing, prices paid and where drugs are sold from.” 

[10]      At paragraph 14 the sheriff notes that “every 6 months DC Plank in his capacity as a member of the STOP Unit meets with similar STOP officers throughout the country.  They exchange files and liaise with each other regarding practices and developments in the world of illicit drug supply, drug culture and relating matters.”  He went on to state that the witness was able to identify the terminology by which cathinones are associated and said the National Crime Agency and Air Freight Traffic Association send out details of drugs from time to time.  In paragraph 27 he noted as follows: 

“With regard to pricing of the drugs, some of which were unknown to DC Plank he agreed that price was dependent upon availability and effect or perceived effect.  He explained, however, as they were all cathinones they were all broadly priced similarly to mephedrone.  This was a drug of which he had greater experience; in the year before January 2016 he had been involved in about five mephedrone cases.  When challenged on his knowledge and experience of cases involving mephedrone, he confirmed that there was no formal body recording data from those cases and that no one had taken time to collect information about them.  The cases were not readily available.  His experience of this drug predated the date at which they became illegal and in addition to the five cases in the year to January 2016, he had five or six years of experience with the drug in addition to speaking to his STOP colleagues throughout Scotland.”

[11]      We are satisfied that the evidence of DC Plank is based on sufficient expertise and knowledge to allow him to give opinion evidence about, amongst other things, cathinones.  We reject the attack on admissibility based on his experience and knowledge.

[12]      With regard to the argument about impartiality, Miss Mitchell was at pains to make it clear that she was not suggesting that DC Plank was in fact partial, but there was an apparent lack of independence and impartiality.  This she submitted arose from two sources - first, that he was asked by the police to give an initial valuation of the drugs recovered and he did this in August 2015.  This together with the fact that he was himself a member of the drug squad, gave rise to an appearance of lack of independence and impartiality.  Miss Mitchell accepted that membership of the Drug Squad by itself was not enough to give rise to such an impression, but given DC Plank’s involvement at an early stage of this investigation, the impression was created.  There required to be greater protective partitions between him and the investigating officers.  The second source was that he was only asked to provide his report Crown label 16 by the procurator fiscal on 13 January 2016 and he was told that if he did not provide it by the following day, the case would fall.  The impression created by this was that he was placed under pressure to provide a report which would support the Crown case in an impossibly short timescale and that he succumbed to this pressure.  He was therefore likely to be perceived as lacking in independence and impartiality. 

[13]      We do not consider that an informed observer, seized of all the relevant circumstances, would infer that DC Plank was not independent or impartial because of either of these factors.  The fact that a police officer has prior operational involvement in a case does not per se render his evidence of opinion subsequently inadmissible.  Johnston v HMA is an example of a police officer who had much greater involvement than DC Plank in the investigation itself, but whose opinion evidence was held admissible.  The fact that the procurator fiscal only sought the report label 16 from DC Plank on 13 January and told him the case would fall if it was not provided the following day, does not reflect well on the Crown and explains many of the shortcomings which the sheriff noted in the report.  However we do not consider it would cause the reasonable informed observer to conclude that the witness by producing the report in this timescale was lacking in impartiality or independence.

[14]      In conclusion we agree with the reasoning and conclusion of the sheriff.  We can find no error of law in his approach to this matter and this appeal is accordingly refused.