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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice General
Lord Nimmo Smith
Lord Wheatley
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[2007] HCJAC 71
Appeal No: XC460/07
OPINION OF THE COURT
delivered by LORD NIMMO
SMITH
in
BILL OF ADVOCATION
by
HER MAJESTY'S ADVOCATE
Complainer;
against
EMMA JEAN GRANT
Respondent:
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Act: Mitchell, A.D.; Crown Agent
Alt: Latif; Sam Milligan & Co, Aberdeen
13 December 2007
Introduction
[1] Section 4 of
the Misuse of Drugs Act 1971 ("the 1971 Act") provides inter alia:
"(1) Subject
to any regulations under section 7 of this Act for the time being in force, it
shall not be lawful for a person ...
(b) to
supply or offer to supply a controlled drug to another. ...
(3) Subject
to section 28 of this Act, it is an offence for a person -
(a) to
supply or offer to supply a controlled drug to another in
contravention of subsection (1)
above; or
(b) to
be concerned in the supplying of such a drug to another in
contravention of that subsection ... "
[2] The
respondent has been indicted at the instance of the Lord Advocate in respect of
alleged contraventions of the 1971 Act.
Charge (1) is in these terms:
"[O]n or between 1 January 2004 and 3
May 2006 both dates inclusive at 44 Boyndie Street, 3b Back Path and 19
Malcolm Road all Banff, Aberdeenshire and elsewhere you EMMA JEAN GRANT were
concerned in the supplying of a controlled drug namely Diamorphine, a Class A
drug specified in Part I of Schedule 2 to the Misuse of Drugs Act 1971 to
another or others and in particular to Lee Michael Gardner, Christopher James
Imlach and Neil James Quinn all c/o Grampian Police, Banff in contravention of
section 4(1) of the aftermentioned Act;
CONTRARY to the Misuse of Drugs Act
1971, section 4(3)(b)".
[3] At the Sheriff Court at Banff on 12 June
2007 a first
diet was held in the case. At this diet
the respondent lodged a minute in terms of section 79 of the Criminal Procedure
(Scotland) Act 1995 ("the 1995 Act") objecting to the admissibility of evidence
of three named Crown witnesses ("the three witnesses"), being the three
individuals to whom in particular it is alleged in charge (1) that the
respondent was concerned in the supplying of the controlled drug in
question. It was submitted in the minute
that it was understood that the Crown would lead evidence from the three
witnesses of actual supply of the controlled drug. This would constitute a contravention of
section 4(3)(a) of the 1971 Act, which was a separate offence not libelled
against the minuter. Accordingly, the
evidence of the three witnesses would, in terms of HM Advocate v Cormack
1995 JC 133, be inadmissible.
[4] On the motion
of the prosecutor, unopposed by the defence, consideration of this minute was
continued to the trial diet on 20 June 2007 at Banff Sheriff Court.
At the trial diet on that date the minute was argued by the
parties. The sheriff thereupon decided
to grant the minute and held that the evidence of the three witnesses, being
evidence which parties were agreed would be about direct supply by the
respondent, was inadmissible. In his
report to this court the sheriff summarised the submissions of parties and the
cases to which reference was made before him, which are discussed below. He stated that he thought that the case of Nelson v HM Advocate 1994 SLT 389 was the most helpful of those referred to. In that case, it was held that the Crown can
lead any evidence relevant to the proof of a crime charged, even though it may
show or tend to show the commission of another crime not charged, unless fair
notice requires that the other crime should be charged or otherwise referred to
expressly in the indictment or complaint.
The sheriff said:
"It confirms that fair notice in a
case of this kind demands that if the Crown intends as proof of the crime
charged to establish that the accused was in fact guilty of another crime then
that other crime should be charged or otherwise referred to expressly in the
indictment or complaint."
The sheriff also relied on HM Advocate v Cormack,
which had been referred to in the minute, and which is discussed below.
The procedural issue
[5] Once the
sheriff had given his decision, the prosecutor requested leave to appeal to
this court, and the solicitor for the respondent did not oppose this motion,
agreeing that it was appropriate and desirable for the matter to be determined
by appeal before commencement of the trial.
The sheriff therefore granted leave to the Crown to appeal. In his report to us he states that he did this
on the assumption that it was competent.
He continues:
"I should say that subsequently I
have been unable to find provision in the 1995 Act authorising the granting of
leave to appeal at a trial diet unless the procedure on the Minute at that diet
can be regarded as a continued first diet so that granting of leave to appeal
would be competent in terms of section 74(1) of the [1995 Act]."
[6] At this point
it becomes necessary to consider the procedural difficulty which arose before
us and the manner in which it was resolved.
An objection by a party to the admissibility of any evidence, such as
was stated in the minute for the respondent, is a preliminary issue in terms of
section 79(2)(b)(iv) of the 1995 Act.
Such a preliminary issue requires to be considered at a first diet, in
accordance with section 71(2), provided that notice has been given as required
by that subsection. In the present case,
the requisite notice was not given, and the minute for the respondent was
tendered at the bar at the first diet on 12 June 2007.
Section 71(2YA) provides, however, that at a first diet, the court shall
inter alia ascertain whether there is
any objection to the admissibility of any evidence which any party wishes to
raise, despite not having given the notice referred to in subsection (2), and,
if so, decide whether to grant leave under section 79(1) for the objection to
be raised and, if leave is granted, dispose of the objection unless it
considers it inappropriate to do so at the first diet. Although it is not recorded in these terms,
we understand that the sheriff decided to grant leave for the objection to be
raised and considered it inappropriate to dispose of the objection at the first
diet. Section 71(2ZA) provides that
where the court, having granted leave for the objection to be raised, decides
not to dispose of it at the first diet, the court may either appoint a further
diet to be held before the trial diet for the purpose of disposing of the
objection, or appoint the objection to be disposed of at the trial diet. In the present case, the sheriff decided to
follow the latter course: the minute of
proceedings narrates that "The court continued consideration of the Minute
until the trial diet of 20 June 2007 at 10 a.m. ... ".
It is clear also from the minute of proceedings that the trial diet was
called before the sheriff heard parties on the objection; and counsel were
agreed on this before us. The minute of
proceedings of that date narrates:
"The trial proceeded at this stage outwith
the presence of the potential jurors.
[The solicitor for the respondent] stated his objection to the
admissibility of evidence ... ".
[7] It is at this
point that the difficulty arises. Section
74(1) of the 1995 Act provides inter alia
that, subject to subsection (2) (which is not relevant for present purposes), a
party may with the leave of the court of first instance (granted either on the
motion of the party or ex proprio motu),
appeal to this court against a decision at a first diet or a preliminary
hearing. There is no provision for the
granting of leave to appeal against a decision at a trial diet, even where the
decision has been taken before the empanelling of a jury and the leading of any
evidence. It may be that there is a
lacuna in the statutory scheme; but this
is not necessarily so, since, as has been seen, section 71(2ZA) contemplates
that a further diet may be held before the trial diet for the purpose of
disposing of the objection, and there is no reason why this further diet should
not, if it is convenient to do so, be held on the day appointed for the trial
diet, provided that the trial diet is not called before the objection has been
disposed of. Unfortunately it does not
appear to have occurred to any of those concerned with this matter that by
continuing consideration of the respondent's minute until the trial diet, and
by hearing parties and disposing of the objection after the trial diet had been
called, the sheriff put himself in a position where he could not competently
grant leave to appeal to this court against his decision under section 74(1) of
the 1995 Act. The sheriff's purported
grant of leave to appeal, and the note of appeal lodged by the Lord Advocate
pursuant thereto, bearing to be brought under section 74 of the 1995 Act, were
therefore in our opinion clearly incompetent.
[8] We have
mentioned above that the procedural difficulty could have been avoided had the
sheriff appointed a further diet to be held before the trial diet for the
purpose of disposing of the objection, in terms of section 71(2ZA) of the 1995
Act. What we have said is not, however,
intended to encourage the holding of such a further diet on the same day as
that appointed for the trial diet. The
statutory scheme for first diets and preliminary hearings has, as one of its
main purposes, the objective of minimising inconvenience to those who will be
affected, potential jurors and witnesses among them, if a trial does not
proceed on the date appointed for the trial diet. We were told that a sheriff sits at Banff Sheriff Court only on certain days, and that this
was a factor in the decision to continue consideration of the respondent's
minute from the first diet, at which it was tendered, until the trial
diet. In the absence of strong practical
reasons for disposing of such an objection at the trial diet, or on the day
appointed for the trial diet before that diet is called, we would discourage
such a course, even if competent in terms of the statute. In the present case, as we understand it,
potential jurors and witnesses had come to court, only to be sent away once the
sheriff had sustained the objection and had granted purported leave to
appeal. Whether or not this situation
could have been avoided in the present case, it is one which, we would hope,
should be allowed to arise only rarely.
[9] After some
discussion before us, the Advocate depute recognised that the Note of Appeal
under section 74 was incompetent, and tendered in lieu thereof a Bill of
Advocation, the substance of which was to much the same effect. The right of the prosecutor to bring a
decision under review of this court by way of Bill of Advocation in accordance
with existing law and practice extends, in terms of section 131(1) of the 1995
Act, to the review of a decision of any court of solemn jurisdiction; and
section 74(1) provides that the procedure for an appeal under that section is
without prejudice to section 131. The
Bill of Advocation tendered by the Advocate depute is accordingly competent,
and in the circumstances we allowed it to be received. Counsel for the respondent did not object to
this course, and found it unnecessary to seek leave to lodge written
answers. It is accordingly the Bill of
Advocation on which our decision is now required.
The substantive issue
Submissions of counsel
[10] The Advocate
depute submitted that the sheriff erred by treating the instances of supply to
the witnesses as separate crimes that required to be libelled separately from
the crime of being concerned in supplying the controlled drug. Instances of supply constituted evidence of a
wider crime. The Crown had given the
respondent fair notice that as part of the evidence on which they relied to
prove the charge of being concerned in the supplying of the controlled drug,
they proposed to lead evidence of actual supply. This was done in certain situations where
there was evidence of dealing or trading with certain specific instances of
supply. It should not be necessary to
libel such specific instances, but the practice had grown up since the decision
in HM Advocate v Cormack to give notice to an accused that the Crown intended to
rely, as part of the proof of a contravention of section 4(3)(b) of the 1971
Act, on instances of actual supply. If
this was done, it was generally where the supply was to drug users rather than
dealers.
[11] The Advocate
depute provided us with an account of the evidence which it was anticipated
that the three witnesses would give. The
evidence, he submitted, would establish that there were not isolated incidents
of supply to them, but of persistent supplying with an undercurrent of
trafficking, admittedly on a minor scale.
When drafting an indictment, the Crown examined the evidence and
assessed which charge most appropriately reflected it. The intention was to give notice to an
accused of the evidence which the Crown proposed to lead, and to ensure that
this was covered by the charge. In the
present case the draftsman had taken into account the period of supply, the
quantity and value of the drug, and the scale of supply, in framing the charge
in the terms quoted above. The actual
supplies to the three witnesses were not separate crimes, but instances of the
wider crime libelled in the charge.
[12] Counsel for
the respondent maintained the position adopted on her behalf before the
sheriff. He said that it appeared that
the Crown case in respect of charge (1) would be insufficient without the
evidence of actual supply. Actual supply
however constituted a contravention of section 4(3)(a), which was a separate
offence from a contravention of section 4(3)(b) and accordingly ought to be
libelled as such. Where the Crown were
relying on evidence of actual supply, it was not appropriate for them to libel
it as a contravention of section 4(3)(b).
The offences created by sections 4(3)(a) and 4(3)(b) were not
overlapping, but free-standing and strictly separate. Parliament had chosen to legislate for the
creation of separate offences, and this should be reflected in separate charges.
Discussion
[13] The question
whether the sheriff correctly held that
"If the Crown intends as proof of the
crime charged to establish that the accused was in fact guilty of another crime
then that other crime should be charged or otherwise referred to expressly in
the indictment or complaint"
depends on the proper construction to be placed on section
4(3)(a) and (b) of the 1971 Act, as interpreted and applied in some of the
authorities to which reference was made before us. The leading authority is Kerr v HM Advocate 1986
JC 41, in which it was held that a person could be guilty of a contravention of
section 4(3)(b) even though no actual and completed supply had occurred. In a well-known passage, Lord Hunter said at
page 45:
"...
I consider that section 4(3)(b) was purposely enacted in the widest
terms and was intended to cover a great variety of activities both at the
centre and also on the fringes of dealing in controlled drugs. It would, for example, in appropriate
circumstances include the activities of financiers, couriers and other
go-betweens, lookouts, advertisers, agents and many links in the chain of
distribution. It would certainly, in my
opinion, include the activities of persons who take part in the breaking up of
bulk, the adulteration and reduction of purity, the separation and division
into deals and the weighing and packaging of deals."
At page 47, Lord Hunter also said:
"I should further observe that I
noted counsel for the appellant at one stage as taking the technical argument
the length of contending that a conviction under section 4(3)(b) of the Act
could not be obtained unless the Crown succeeded in proving that there had been
actual and completed supply of the drug to another person by a person other
than the accused. This argument is not
only displaced by the interpretation of the statutory provisions which has
commended itself to me but also overlooks the fact that the offence created by
section 4(3)(b) is that of being concerned in the 'supplying' of a controlled
drug to another. This covers in my
opinion the whole process of supplying to others, a process which may not be
completed and which, fortunately, is sometimes interrupted by police and other
action. It would be strange indeed if
Parliament, having used the very wide language which was enacted in section
4(3)(b), should be held to have imposed a limitation which would often deprive
the provision of practical effect. In my
opinion the actual language used in the provision points strongly against any
such narrow construction. I am satisfied
that the provision is designed to catch any person who is concerned at any
stage in the process of supplying to others from the beginning of that process
to the end."
In a concurring Opinion, Lord Justice Clerk Ross said, at
page 48:
"I find myself in complete agreement
with the interpretation of this statutory provision as expounded by Lord
Hunter. In particular, I agree that a
contravention of section 4(3)(b) may be established even though there has been
no actual supply of the controlled drug to another person; the offence which the statute creates is
being concerned in the supplying of a controlled drug to another, not being
concerned in the supply of a controlled drug to another."
These dicta have been consistently followed in all subsequent
cases, and are reflected in standard directions to juries.
[14] In Kyle and Boyle v HM Advocate 1987 SCCR 116 the appellants had been charged with
contraventions of sections 4(3)(b), 4(3)(a), 5(3) and 5(2) of the 1971
Act. At page 129, Lord Justice Clerk
Ross said:
"So far as the indictment is
concerned, it was, of course, competent to libel cumulatively the alleged
contraventions of section 4(3)(b), section 4(3)(a) and section 5(3) which were
the subject of charges (1), (2) and (3).
For a person to be found guilty of being concerned in the supplying of a
controlled drug (section 4(3)(b)), it is not necessary for any supply to have
actually taken place. As Lord Hunter
pointed out in Kerr, section 4(3)(b)
was enacted in the widest terms and was intended to cover a great variety of
activities both at the centre and also on the fringes of dealing in controlled
drugs. Even if an accused has been found
guilty of supplying a controlled drug in terms of section 4(3)(a), and of
possession of a controlled drug with intent to supply it to another in terms of
section 5(3), it does not follow that he cannot also be convicted of being
concerned in the supplying of a controlled drug to other persons in terms of
section 4(3)(b) provided that the evidence relied on in relation to the charge
under section 4(3)(b) is supplementary to that relied on for the charges under
section 4(3)(a) and section 5(3)."
As can be seen from this passage, the situation the court
were dealing with in Kyle and Boyle
was one in which the Crown had chosen, in accordance with their usual practice
at the time, to libel a multiplicity of charges, and it provides little
assistance where, as here, the Crown have chosen to libel a single charge and
the issue is as to the admissibility of the evidence which they seek to adduce
in support of the charge, notice of which is given in it. The same observation may be made about Dickson v HM Advocate 1994 SCCR 478, in which the appellant was charged with
contravening section 4(3)(b) between two specified dates, and with a contravention
of section 5(3) on the second date. The
evidence related only to a quantity of drugs recovered on the latter date. At page 483, Lord Justice General Hope said:
"It is important in cases of this
kind, where juries are being told that they cannot convict on more than one
charge on the same set of facts, for directions which are intended to give
examples of this to be related to the evidence which has been led in the
case. Furthermore, it is important that
the jury should be properly guided as to the distinction between a section 5(3)
charge and a section 4(3)(b) charge and as to how that distinction can be made
in the light of the evidence. As we have
said, typically a section 4(3)(b) charge will involve some activities extending
over a period of time. ... By way of contrast a section 5(3) charge will normally
be related to the finding of particular drugs in the accused's possession on
one particular occasion ... "
As can be seen from this passage, the court was again
addressing a situation in which the Crown had chosen to libel more than one
charge.
[15] The decision
relied upon by the respondent before the sheriff, and again before us, was that
of Lord Marnoch in HM Advocate v Cormack 1995 JC 133, delivered in the
course of a trial on a charge brought under section 4(3)(b) of the 1971 Act, in
which the defence objected to the leading of evidence of actual supply to a witness
on a particular occasion. At page 134,
Lord Marnoch said:
"... I think it most unlikely that
Parliament intended section 4(3)(b) of the 1971 Act to cover the actual supply
of illegal drugs when making that a separate and specific offence under
subsection 3(a) of the same section of the same Act. Indeed, the Advocate depute accepted that the
normal canons of statutory interpretation militate against any such
construction. The authority principally
prayed in aid by the Advocate depute was that of Kerr v HM Advocate and in
particular the following dictum of Lord Hunter:
'I am satisfied that the provision ...
is designed to catch any person who is concerned at any stage in the process of
supplying to others from the beginning of that process to the end.'
In my opinion, however, neither the
arguments canvassed in that case nor, in its context, that dictum were directed
towards the point now in dispute. ... In any event, it is abundantly clear from
the decision in Kerr that proof of
actual supply of drugs is not essential to a conviction of being concerned in
the supplying of drugs under section 4(3)(b) of the Act. That being so, the evidence sought to be
elicited on any view goes beyond what is strictly required for proof of the
charge libelled under that section while, at the same time, being directly
referable to the commission of a crime not charged, namely the crime of
actually supplying illegal drugs, contrary to section 4(3)(a) of the Act. In these circumstances I am of opinion that
it is difficult to view the evidence in question as being merely incidental to
proof of the charge under section 4(3)(b) and that fair notice required that,
if this evidence were to be led, the crime or crimes of supplying illegal drugs
should also have been libelled in the indictment."
[16] In Cochrane v HM Advocate, unreported, 13 May 1999, a submission was advanced that
sections 5(3) and 4(3)(b) of the 1971 Act were, on a proper construction,
mutually exclusive. It was, however,
decided that while this was a matter of some substance, it was not a live issue
on the evidence which was before the jury in that case.
[17] Finally, in HM Advocate v Kiernan 2001 SCCR 129, temporary judge Sir G.H. Gordon, Q.C. was
considering a submission that there was no case to answer in the course of a
trial in which the charge was brought under section 4(3)(b) of the 1971 Act and
the only evidence against the accused was that he had been found on one
occasion in possession of a "supply quantity" of a controlled drug. In repelling this submission, he said, in
paragraph 7 on page 132:
"The question at issue is not an easy
one. It is difficult to see why
Parliament chose to create two offences with the same penalties when one of
them could be subsumed in the other:
every charge under section 5(3) on the Crown's view could be a charge
under section 4(3)(b), although the converse is not, of course, the case. ... It
is quite clear from Lord Hunter's dictum in Kerr
that couriers are to be included among those concerned in supply, although it
does not necessarily follow from what he said that that would apply in all
circumstances. So far as Cormack is concerned, I am not, with
respect, convinced that actual supply cannot be charged as concern in supply,
whether or not such a charge is appropriate, but even if I am wrong in that
regard, I think that the relationship between section 4(3)(a) and 4(3)(b) is
closer than that between either subsection and section 5(3)."
He concluded by saying, in paragraph 10, that a person who
was in possession of drugs with intent to supply them to another, even if that
other was not himself a consumer, was concerned in their supply.
[18] Reference was
also made before us to Salmon v HM Advocate; Moore v HM Advocate 1998
SCCR 740, in which Lord Justice General Rodger observed that the proper charge
for the Crown to have brought in a previous case would have been one of
supplying, under section 4(3)(a), rather than of being concerned in supplying
under section 4(3)(b). He said, at page
760:
"The Crown's decision to use a
section 4(3)(b) charge, when another was the appropriate charge, complicated
the picture quite unnecessarily."
[19] It can be seen
from the line of authority referred to above that Kerr v HM Advocate still
stands as a statement of the scope of section 4(3)(b) of the 1971 Act, without
subsequent qualification or restriction.
It is necessary therefore, for present purposes, to emphasise that, as
Lord Hunter said at page 47, the provision covers the whole process of
supplying a controlled drug to others, and is designed to catch any person who
is concerned at any stage in the process of supplying to others from the beginning of that process to the
end. While, as was held in that
case, it is not necessary that any actual and completed supply should be proved
to have occurred, in order to establish that there was a process of supplying,
it is in the nature of such a process that there may in many instances be
actual supply from one person to another, "links in the chain of distribution",
as Lord Hunter called them. We agree
with the view expressed in Kerr that
section 4(3)(b) was purposely enacted in the widest terms. It follows from this that the concept of "supplying"
must be regarded, for the purposes of the statute, as all-embracing, with the
result that activities which, when viewed in isolation, would constitute
contraventions of section 5(3) or section 4(3)(a), are subsumed into a charge
brought under section 4(3)(b), where the state of the evidence justifies that
course. We can see no reason whatever
for thinking that Parliament intended section 4(3)(b) and section 4(3)(a) (or
section 5(3)) to constitute mutually exclusive categories. On the contrary, the Crown's present practice
of libelling a contravention of section 4(3)(b), where justified by the state
of the evidence, serves to avoid the difficulties which formerly arose where a
multiplicity of charges were libelled, arising from essentially the same course
of conduct. As was held in Kerr v HM Advocate, it is not necessary for proof of a charge brought
under section 4(3)(b) that evidence should be led of an actual supply of the
controlled drug. But it does not follow
from thus, as a matter either of definition or of logic, that evidence of
actual supply by the accused is not relevant to proof that he was concerned in
supplying the controlled drug. To say
that something is not essential for proof of the commission of a crime is not
the same as to say that it is irrelevant to such proof and therefore that the
evidence in question is inadmissible. We
cannot therefore support Lord Marnoch's reasoning in HM Advocate v Cormack,
and must respectfully disapprove of that decision. His Lordship may have had in mind the canon
of statutory construction expressio unius
exclusio alterius. But that canon is
"not to be applied rigidly or without careful thought for the context: it can
be particularly dangerous if applied prescriptively": Craies on Legislation, 8th.
ed., p.604.
[20] It follows
from the foregoing discussion that in our opinion the sheriff fell into error
in holding that the evidence in question was inadmissible because it would
serve to establish that "the accused was in fact guilty of another crime". What the Crown are offering to prove, and
give notice to that effect in the charge, is that as an aspect of being
concerned in the supplying of the controlled drug, the respondent made actual
supplies to the three witnesses. This
would constitute proof, not of another crime, but of aspects of a course of
conduct amounting to a contravention of section 4(3)(b).
[21] What we have
said thus far is directed to the manner in which this particular charge is
libelled and to the evidence which would be admissible in proof of that
charge. That is all that is necessary
for our decision. Beyond what we have
said about the desirability of avoiding the difficulties which may arise where
a multiplicity of charges are brought, arising from essentially the same course
of conduct, we are not to be taken to be offering guidance about the manner in
which a charge brought under section 4(3)(b) should be libelled. This is a matter for the Crown, depending
upon the state of the available evidence in each particular case. In some cases it may be necessary, in order
to give fair notice to the accused, to libel instances of actual supply to
named individuals, where, as here, there is evidence of such supply. But in other cases this may not be necessary,
due regard being had to the decision in Nelson
v HM Advocate.
Decision
[22] For these
reasons we shall pass the Bill that is now before us, recall the sheriff's
order of 20 June 2007, and remit the proceedings back to
the sheriff to proceed as accords.
