Scottish High Court of Justiciary Decisons
You are here:
BAILII >>
Databases >>
Scottish High Court of Justiciary Decisons >>
APPEAL AGAINST CONVICTION BY PATRICK HATTIE [2021] ScotHC HCJAC_11 (02 February 2022)
URL: http://www.bailii.org/scot/cases/ScotHC/2022/2021_HCJAC_11.html
[
New search]
[
Printable PDF version]
[
Help]
APPEAL COURT, HIGH COURT OF JUSTICIARY
HC/2021/000228/XC
Lord Justice Clerk
Lord Pentland
Lord Matthews
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION
by
PATRICK HATTIE
Appellant
against
HER MAJESTY'S ADVOCATE
Respondent
Appellant: D Findlay QC; Paterson Bell, Solicitors, Edinburgh for Manini Belardo Matteo, Airdrie
Respondent: A Prentice, QC, Sol Adv, AD; the Crown Agent
2 February 2022
Introduction
[1]
The appellant was convicted of 3 contraventions of section 4(3)(b) of the Misuse of
Drugs Act 1971. All of the charges relate to the same supply operation which involved
cocaine, cannabis and cannabis resin. The appeal relates to the adequacy of the judge's
directions.
2
Background
[2]
The appellant ran a body repair and paint shop in Airdrie which had been set up
with financial help from his former co-accused and incriminee, Lawrence Phee. Phee did
not work in the business, did not appear to profit from it, and there was no clear evidence as
to why he had invested in the body shop. In addition, the appellant rented a large yard in
Shotts. There was evidence that the appellant rented the yard, which he could ill afford, at
the behest of Phee. On 28 November 2018, the appellant contacted Nicholl's Transport and
arranged the transport of a compressor to a yard at Shotts, to be delivered to a company
called "Kelly Compressors". The evidence indicated there was no such company operating
from the specified address at Shotts. The "compressor" was later found to be a container
packed with drugs. It seems that it had originally been delivered to the wrong address, but
was then taken by Nicholl's Transport to the appellant's yard. Mr Nicholl identified the
appellant as the individual who had asked for the compressor to be delivered to the yard,
and who had given the business name "Kelly Compressors".
[3]
On the morning of 1 December 2018 the appellant went with another co-accused,
David Brown, to a van hire company. Brown hired a Mercedes van. The appellant gave him
the money for the hire, having withdrawn it from an ATM. The thrust of his explanation to
the police was that Brown had been in the transport business and the appellant wanted to
help him get back on his feet. He thought that Brown was going to be delivering parcels and
would be paid for it, so he would get his money back. There was evidence that the
appellant's insurance documents were exhibited to the hirer by Phee to demonstrate that the
appropriate insurance was in place for the hire. This had occurred on 22 November. The
appellant denied knowing about this, denied being there at the time and indeed claimed that
he did not know where his policy was. The police found it in a drawer in his office.
3
[4]
Brown drove the hired van to the appellant's yard and watched as Phee loaded the
container onto the van. There is no suggestion that the appellant was in the yard at the time.
It was a reasonable inference from the evidence that the compressor delivered by Nicholl's
Transport and the container later seized by police were one and the same. Brown drove the
van to Cairnryan where he was stopped, and the drugs were seized by the police. Phee pled
guilty to being concerned in the supply of drugs at the commencement of the trial. The
appellant and Brown were convicted by verdicts of the jury.
[5]
The appellant did not give evidence, but his police interview was played to the jury.
In that interview he said that he had lent Brown £200 to hire the van. It was to help Brown
get back on his feet. He understood him to have a delivery job driving. The appellant
accompanied Brown to the hire place. The van was not ready and was to be delivered to
Brown later. As to where the van went after it had been hired he had no idea. When told
that when searching the van police found a large grey container with drugs inside, he said
he had never seen such a container on any of his properties. Asked further questions about
this he said "Honest to God, I don't know a thing about it ... I don't know anything about
that vehicle". All he knew was that Brown was going on a job for deliveries, parcel
deliveries. Brown never told him a thing about that journey (ie the journey when the drugs
were found). The jury were invited to consider that the appellant had been an unwitting
and innocent dupe.
[6]
In his Charge at page 24 the judge gave the usual directions about what the Crown
had to prove for a charge of being concerned in the supplying of illicit drugs, viz, that the
accused was knowingly involved in an operation to supply something and that it was in fact
the drug or drugs involved. The Crown did not have to prove that the accused knew that
the something was drugs.
4
The issues
[7]
The Note of Appeal avers that in the circumstances the judge should have gone
further and that the directions were insufficient. The Note of Appeal is not very well
focussed, but the issue turns on whether the circumstances were such as to bring into play
the statutory defences under section 28 of the 1971 Act, all under reference to Aiton v HM
Advocate, 2010 JC 154. This in turn hinges on what the appellant said in his police interview.
The arguments for the appellant developed the submission that the jury ought to have been
directed that the Crown had to prove that either the appellant knew drugs were involved or,
at the very least, that he was knowingly involved in some illegal activity. Given that the
appellant did not give evidence the question of whether section 28 came into play turned on
the contents of his police interview. This in turn raises the question of whether the trial
judge gave adequate directions on this matter.
[8]
A further matter which arises relates to the trial judge's use of the written directions
and method of delivering initial directions to the jury at the start of the case. Associated
with that issue is the judge's reference in those initial directions to concert.
[9]
As matters developed, the Crown indicated that it could not support the conviction.
It was not accepted that section 28 was a live issue, but it was accepted that the trial judge
had completely failed to direct the jury on the use which could be made of the police
interview with the accused. Whilst in some cases such a failure may not result in a
miscarriage of justice that was not a tenable proposition in the present case. The court
agreed with the advocate depute, and concluded that the appeal had to succeed, for the
reasons which follow.
5
Section 28
[10]
We agree with the advocate depute that on the basis of the appellant's police
interview no question arose of a statutory defence under section 28. As the Lord Justice
General (Rodger) noted in Salmon v HMA 1999 SLT 169 (at p178 J-K), a case fought on the
basis that the Crown seeks to draw inferences of knowledge from the circumstances of the
case, where the defence is that the accused knew nothing about the drugs and had nothing
whatever to do with any supplying, does not involve consideration of section 28. See also
Lord Johnston at p 185 J-K; and Lord Bonomy at p188 H-K. This was essentially such a case.
The very nebulous remarks of the appellant to the effect that he thought Brown had a job
making deliveries were not such as to make this defence one of anything other than pure
denial. The directions given by the trial judge in relation to section 4(3)(b) therefore were
adequate to cover the situation and nothing more was required.
[11]
In his supplementary report the trial judge states that he took the view that the
general Jury Manual direction on section 4(3)(b) had been worded so as to cover the terms of
section 28. This is puzzling, given that those directions are followed by a section giving
additional directions and headed "if defence raises section 28(2) (accused thought container
held something which could not be associated with drugs", and a similar section regarding
section 28(3).
The appellant's police interview
[12]
In his opening remarks to the jury, in the course of his pre-trial directions, the trial
judge said "evidence of what an accused person was heard to say is evidence in the case,
and again I will direct you about that matter if it arises." Nothing further was said on the
matter, either in the opening directions or in the subsequent charge. The position is made
6
worse by the fact that in the charge he explained that there were certain exceptions to the
rule against the admission of hearsay evidence, such as statements made by a witness to the
police, or the use of prior inconsistent statements, but omitted any mention of statements by
the accused. In fact, apart from the few exceptions which he illustrated, he indicated that
other than that the general rule was "that it is what a witness says in court which matters".
In addition there was of course reference to the evidence given by the co-accused, along with
directions of how that evidence might be used by the jury. All of this contrasts with the
position of the appellant, whose police interview was not mentioned at all by the trial judge.
The pre-trial direction did not make reference to the appellant's police interview, and seems
in any event more to be directed towards statements made by an accused person in ordinary
conversation. The appellant's police interview was played to the jury. He did not give
evidence, and the whole substance of his defence was contained in the police interview. The
jury were given no guidance on the matter at all. In our view the advocate depute was
correct to say that, in the circumstances of this case, this was a material misdirection which
could not be cured. A verdict returned on the basis of such a serious omission can only be
considered to amount to a miscarriage of justice.
Concert
[13]
In his opening remarks the trial judge made reference to concert. He should not have
done so. The only charges before the jury involving more than one accused were charges
under section 4(3)(b). In Salmon v HMA and Clark v HMA 2002 SCCR 675 the court doubted
the application of concert to this section. The matter was put beyond doubt in Barclay v
HMA 2020 JC 175 which clearly states that the concept of art and part guilt has no part to
play in establishing guilt on a charge brought under section 4(3)(b) of the Act. This is made
7
clear in the Jury Manual, which refers to all three of these cases. In his charge the trial judge
did not refer to concert, but nor did he tell the jury that the concept had no application. This
was unfortunate since (a) at no stage either did he direct the jury that they had to consider
the case against each accused separately the highest it came was to tell them that they
required to deliver separate verdicts against the two accused; and (b) he opened his remarks
about how the jury could assess the issue of being concerned in the supplying by lumping
the accused together: "the Crown say that the evidence shows that they were knowingly
part of the distribution chain".
Written Directions
[14]
Since the restarting of High Court trials following the initial interruption occasioned
by the pandemic it has been the practice to provide th e jury with written and oral directions
to help them understand the process of the trial upon which they are about to embark. This
involves two main elements: pre-instruction of the jury by the judge; and written directions
on these matters. The pre-instruction directions are in three parts: the first relates to the
functions of judge and jury, assessment of evidence and the like; the second covers basic
principles such as the burden and standard of proof; and the third covers issues such as
multiple accused, concert, special defences and other common issues. The latter may or may
not be required, depending on the nature of the case. The material provided to the jury
should not deal with issues which are not expected to arise in the case. In this case both the
written directions supplied to the jury and the pre-instruction by the judge (which were not
the same) made reference to concert.
8
[15]
The issue of written directions is addressed in the Jury Manual, and this is
supplemented by the much greater detail which is provided in the "Amalgamated Briefing
Paper on Restarting Solemn Trials" which should be consulted along with the Jury Manual.
[16]
Judges are very strongly encouraged, and advised, to use the specimen pre-
instruction directions. The specimen written directions are prepared in a clear, concise
manner designed to be easily read, digested and understood. Their origin was explained by
Lord Turnbull in giving the opinion of the court, comprising also the Lord Justice General
and Lord Menzies, in SB v HM Advocate [2021] HCJAC 11 at paras 49 and 50 (emphasis
added):
"49. The second matter concerns the recent introduction of some quite radical
changes to the way in which instruction is delivered to juries by judges. In discussion
between the Lord Justice General, the Lord Justice Clerk and the Jury Manual
Committee of the Judicial Institute, it was agreed that from July 2020 jurors should be
provided with certain materials in writing at the start of the trial. These are, a note
setting out the duties and responsibilities of a juror and a document setting out the
general directions which apply in every case, as well as, if appropriate, setting out
specific further directions which the judge considers are appropriate in the
circumstances of the particular case.
50. Accordingly, at the commencement of trials jurors are now given general oral
guidance on the functions of the personnel and information about the timetabling of
the case, all of which is intended to reinforce the written note setting out j uror
responsibilities which is issued to each juror on their arrival at the jury centre or
court. This is then followed by the issuing of written instructions, which the trial
judge will read to the jury, concerning the separate functions of judge and jury, the
nature of evidence, how to assess witnesses, what is meant by an inference, the duty
to decide the case only on the evidence, the presumption of innocence, the burden of
proof, the standard of proof, corroboration, and how these issues impact upon the
defence. Other written directions may be given as necessary concerning issues such
as the purpose of a docket, a notice of special defence, the law as to concert and the
concept of mutual corroboration."
[17]
It is well recognised that whilst slavish and, in particular, unthinking, adherence to
the words in the Jury Manual is not to be desired, a judge should not depart from the
Manual, in respect of the general pre-trial directions in particular, unless satisfied that it is
9
necessary so to do for the purposes of achieving a fair and proper trial. The issue was
addressed in White v HMA 2012 SCCR 807, para 13:
"... it should, on the other hand, be appreciated that the contents of the Jury Manual,
which have been devised by the judiciary for the judiciary, are intended to be an
encapsulation of sound law and good practice over the years. If a sheriff or judge
wishes to depart from these contents, he is of course free to do so in a given case, but
he requires to take care, in an ordinary case, before omitting a normal direction as
described in the Jury Manual, or including an unusual direction or observation. This
is particularly important when giving the jury the general directions applicable in
almost every criminal case."
As the point is expressed in Renton & Brown, Criminal Procedure, 6th edition, para 18.79.1
"while judges are not obliged to use the ipsissima verba of these directions, they
would be well advised to do so."
These observations apply equally directly to the specimen written directions, which are
designed to address only the most commonly encountered issues.
[18]
It is imperative that the written directions are read to the jury by the judge at the
outset of the case. It is not enough to give the directions to the jury and tell them to refer to
them if they wish, as the trial judge did in this case, saying "you may care to acquaint
yourself with that in due course". The judge must go through the directions with the jury as
part of the introduction to the case.
[19]
The written pre-instruction directions should be exactly the same as those spoken by
the judge. If, as should very rarely happen, the judge chooses not to use the specimen
directions, as the trial judge here chose, the directions sh ould cover the same subjects as the
specimen directions. Critically, they should be expressed in a similarly clear and concise
way. It is to be borne in mind that the purpose is to assist the jury in the task ahead of them,
to understand how to assess the evidence they are about to hear, and to recognise its
significance in the context of the case. Clarity and concision are required to assist this
process. It is not helpful, as happened in this case, for the trial judge to deliver the pre-
10
instructions in a lengthy, verbose, discursive fashion. It is even less helpful to deliver those
directions orally and yet issue the jury with the specimen written directions which have not
been read to them and to which only fleeting allusion is made. The jury here were in fact
given two different sets of directions at the start of the case: the specimen written directions,
which were not read to them; and the more convoluted ones prepared by the judge, which
were read to them but not furnished in writing. In this case, given that there had been a clear
and serious misdirection on the police interview, the issue of whether a material
misdirection resulted from the provision of different written and oral directions at the same
time, and the reference to concert, did not arise, but it is difficult to see that the effect of
these would have been other than highly confusing for the jury.
[20]
It is not anticipated that the pre-instruction directions need be re-read at the end of
the trial. The judge may wish to mention them by reference whilst expanding on them in
the charge. He may simply incorporate the directions wholesale by reference on a particular
issue if it is straightforward. This matter was also addressed in SB at para 53:
"In conducting a trial in accordance with the recently introduced procedures a judge
will no doubt think carefully about the issues and areas of law which he or she
wishes to include in the charge. The content of the charge will vary according to the
length of the trial and the issues raised. In many cases it may be sufficient to draw
the attention of the jury to their copies of what was delivered earlier and to remind
them that they must follow both those directions and what is said in the charge itself.
In other cases the judge may feel it necessary, or appropriate, to recap some of what
was said or to revisit some aspects of the earlier directions in more detail. The
evidence led and the speeches of the crown and defence will doubtless inform the
extent to which anything more need be said in relation to the written directions. In
any charge, the directions as a whole must be tailored to the circumstances of each
case."
Whatever approach is adopted, the charge must be designed for the individual trial and to
help the jury address the specific issues arising in it. In this case the charge as a whole failed
to do that. It does not engage with the true issues in the case. It is formulaic and lacks the
11
approach, which has repeatedly been emphasised, that requires a bespoke charge which
engages with the specifics of the particular trial and the particular issues that arise for
