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HIGH COURT
OF JUSTICIARY
[2008] HCJ1
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OPINION
of
LORD MACKAY OF DRUMADOON
in causa
HER MAJESTY'S ADVOCATE
against
MARK DEVLIN MURRAY known as KIERAN KERRIGAN
__________
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Act: Stewart, AD; Crown Agent
Alt: Renucci; Graeme Murray & Co, Aberdeen
19 February 2008
Introduction
[1] On
15 January 2008 the
accused appeared before me at Edinburgh High Court. He faced a section 76 indictment that libelled
two charges against him. Those charges were in the following terms: -
"(1) On 12
October 2007 at Fraser Place and 15D Powis Place, both Aberdeen and elsewhere
to the Prosecutor meantime unknown, you were concerned in the supplying of a
controlled drug, namely Cocaine, a Class A drug specified in Part 1of Schedule
2 to the aftermentioned Act, to another or others and in particular to David
Smith and Ronald Cormack, both c/o Grampian Police, Aberdeen, in contravention
of Section 4(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971, Section
4(3)(b);
and
(2) On 12
October 2007 at Fraser Place and 15D Powis Place, both Aberdeen and elsewhere
to the Prosecutor meantime unknown you were concerned in the supplying of a
controlled drug, namely Diamorphine, a Class A drug specified in Part 1 of
Schedule 2 to the aftermentioned Act, to another or others and in particular to
David Smith and Ronald Cormack, both c/o Grampian Police, Aberdeen in
contravention of Section 4(1) of said Act: CONTRARY to the Misuse of Drugs Act
1971, Section 4(3)(b)."
The accused pled guilty to both
charges.
Narrative
of the facts
[2] Having
moved for sentence and having tendered a schedule of previous convictions
relating to the accused, the Advocate Depute read out a narrative of the facts,
which was in the following terms:-
"Acting on
intelligence received, police craved a Drug Search Warrant in respect of 15D Powis
Place, Aberdeen, the
locus, which is the accused's home address.
While a police officer was in the process of craving the Warrant, other
officers kept the locus under observation, with instructions to detain the
accused should he leave before the warrant was available for execution.
At 11.55 pm
on Thursday 11 October 2007 the accused was seen leaving 15D Powis Place , and
was detained for the purposes of a drug search.
A short
time later police witnesses arrived, cautioned the accused and showed him the
Drug Search Warrant. The accused was
taken back to 15D Powis Place, where police
witnesses noted that the door had been reinforced with wooden panelling. A length of wood was seen by the door which
could have been used as a prop to keep the door closed.
At 1.30 am on Friday 12 October 2007 at 15D Powis
Place, Aberdeen in the
presence of witness Detective Constable Cordiner, witness Detective Constable
Laing cautioned and detained the accused in terms of Section 14 of the Criminal
Procedure (Scotland) Act
1995. He indicated he understood and
made no reply.
The accused
was taken to the bathroom where he was searched and a mobile telephone, a set
of electronic scales, £4,500 of money, a wallet containing £225 of money, and a
SIM card were recovered.
From the
left front pocket of the accused's trousers, police recovered Label 6, which
consists in:-
-
A bag containing a substance identified subsequently
as diamorphine, a class A controlled drug, 5.5g in quantity, which if divided
into 'tenner bags' could have realised on sale £550.
-
Two knotted, blue plastic packages ...... containing
respectively 6.81 and 2.83g of an off-white waxy substance which was identified
subsequently as cocaine, in the form known colloquially as 'crack
cocaine'. Had these been subdivided into
£25 'rock' deals they would have realised £1,175 (£850 + £325).
From down
the front of the accused's trousers, police recovered Label 8, a blue bag which
contained a number of packages. Within Label
8 were further packages which can be divided into three groups:-
-
Six knotted packages in blue plastic, similar to
another one in size and appearance, were discovered. Three of them were selected at random and
opened, and found to contain a white powder which was identified subsequently
as cocaine, a class A controlled drug.
The average weight of the three packages which were opened was
27.67g. Had the total quantity been
subdivided into 'gram deals', it would have realised a maximum of £11,700 on
sale.
-
Seven knotted packages in blue plastic were
discovered. Three of them were selected
at random and opened, and found to contain 'crack' cocaine. The average weight
of the three packages which were opened was 6.74g. Divided into £25 'rock deals', the total
quantity could have realised a maximum of £5,775 on sale.
-
A package was discovered containing brown powder which
was identified subsequently as diamorphine, a class A controlled drug, 27.22g
by weight. Had that quantity been
divided into 'tenner bags', it could have realised £2,720 on sale.
The full
sale value of the drugs recovered is thus £21,920: £18,650 in cocaine and crack
cocaine, and £3,270 in diamorphine. Had
the matter gone to trial, the Crown would have led evidence of the quantities
recovered, and the prices realised on the sale of controlled substances, from
police officers skilled and experienced in such matters and able to speak to the
state of the market in the Grampian police area as at the date of the crime.
The flat
was searched and a mobile telephone, an envelope with notations and various
items of packaging - clingfilm, and plastic sandwich bags - were recovered.
Following
the search the accused was detained and taken to Grampian Police Headquarters
where he was later cautioned and interviewed between 4.28 am and 5.00 am on Friday 12 October 2007 within
Interview Room Number 3. He agreed that
he had been detained on Fraser Place, Aberdeen and
confirmed that he was shown a Drug Search Warrant. He answered 'No Comment' to all other
questions he was asked. He also replied
'No comment' when he was cautioned and charged."
It will be noted that the narrative
makes no mention of either David Smith and Ronald Cormack, who are named in
both charges.
Submissions
by parties
[3] When
counsel for the accused addressed me on 15 January 2008, he informed me that no issue was
taken with the narrative of facts. He also stated that the accused had become
involved in these offences in the following circumstances. The accused had recently been released from
prison. He abused heroin. He had been
approached by other individuals and asked to provide a safe house for the drugs
which had subsequently been recovered by the police. He had done so at his house at 15D Powis
Place, Aberdeen. It was explained that in return for providing
a safe house, the accused was to receive drugs for his own use. Counsel for the accused also explained that
during 11 October 2007 the
accused had received a phone call informing him that the drugs and money were
to be removed from his flat and taken to George
Street in Aberdeen. He had been in the process of doing that when
he had been detained. That was how he came to have no interest in either the
drugs or the money which had been found in his possession and in respect of
which the Advocate Depute had sought forfeiture.
[4] Having
been addressed by counsel for the accused I then asked the Advocate Depute
whether the Crown accepted the explanation put forward on behalf of the
accused. In response, the Advocate
Depute informed me that in the course of a routine patrol on the evening of 11 October 2007, police
officers had seen a car being used by a person who was known to be a drug
dealer. That car had been seen in the
vicinity of the accused's flat. Around
the same time another person had been seen leaving the block of flats in which
the accused's house was located. This had
occurred about 7 pm. The Advocate Depute indicated those sightings
had caused the police to obtain the search warrant which they had subsequently
enforced. The Advocate Depute suggested
that the observations made by the police tended to bear out what had been said
on behalf of the accused. The case was
however continued overnight to enable the Advocate Depute to consider the
Crown's position in respect of the explanation put forward in mitigation on
behalf of the accused.
[5] The
case called again the following day. The
Advocate Depute informed me that the procurator fiscal had spoken to the
reporting police officer. I was informed
that the police did not dispute the fact that the accused had recently been
released from prison or that he had a drug habit. The police did, however, dispute that the
accused had been holding the drugs for others.
The Advocate Depute also informed that the Crown disputed that the drugs
were being held by the accused on behalf of others.
[6] Following
an adjournment, which I allowed to enable counsel to discuss the case further,
I was addressed further by the Advocate Depute. I was informed that the Crown's
position remained that the mitigation advanced to the effect that the accused
had been holding the drugs for another person was not accepted. The Advocate Depute offered to explain to me in
detail why the Crown had reached that view, but I indicated that it might not
be appropriate for him to elaborate on the information the Procurator Fiscal
had obtained from the police, lest a proof in mitigation took place. The Advocate
Depute went on to state, however, that the problem was that the Crown could not
"actively dispute" what was being advanced. The Advocate Depute did, however,
repeat that the Crown do not accept that the accused's involvement had been
limited to providing a safe house for the drugs on one day, namely 11 October
2007.
[7] In
light of what the Advocate Depute had said, I indicated to counsel for the
accused that I was unable to accept the factual basis for the plea in
mitigation that was being put forward. I explained that I understood it was my
duty to make that clear to the accused and to offer a proof in mitigation,
which I did.
[8] Counsel
for the accused was resistant to the idea that a proof in mitigation was the
way to proceed. He submitted that a
proof in mitigation might be a waste of valuable court time in view of the fact
that, as he understood it, the Crown was not in a position to lead evidence and
to dispute any evidence led by the accused.
He submitted that the plea in mitigation he had advanced was consistent
with the terms of the narrative, with which he agreed, and that I should
sentence the accused on the basis that the accused's involvement with the drugs
and money had been limited to his providing a safe house. The Advocate Depute was also resistant to the
idea of holding a proof in mitigation and observed that he could not see how
the leading of evidence would help. He submitted that there had to be occasions
on which a factual issue between the Crown and defence could not be resolved
and he suggested this was one such occasion.
[9] I
continued the case further to enable counsel for the accused to consult with
his client and to have further discussions with the Advocate Depute.
[10] The case called again the following day. On this occasion, I was addressed on the law by
counsel for the accused and the Advocate Depute. Both stated that it was unnecessary to hold a
proof in mitigation in the present case.
[11] Counsel for the accused made clear that the accused did not
wish to take up the offer of a proof in mitigation I had made. He submitted that when a plea in mitigation
has been advanced, specific contradiction of its terms by the Crown was a
different matter from the Crown stating that it did not accept the line of mitigation
involved. In the present case there were no factual inconsistencies between the
plea in mitigation advanced on behalf of the accused and the narrative of facts
that the Advocate Depute had presented to the Court. The situation appeared to be one in which the
Crown was not in a position to lead evidence in contradiction of what was being
advanced on behalf of the accused. It was submitted that whilst it was for the
defence to lead evidence when the Crown put forward a factual proposition that
the accused did not accept, if the Crown was disputing a version of events
advanced on behalf of the accused, it was for the Crown to decide whether it
wished a proof in mitigation and, if so, to lead evidence during any proof. The
onus in such a situation would rest on the Crown. It was argued that in the
circumstances of the present case, the Court should accept the facts advanced
on behalf of the accused, even although the Crown did not do so.
[12] In his submissions, the Advocate Depute indicated that the Crown's
position remained as before. The Crown took the view that the plea in
mitigation was not inconsistent with the terms of the narrative that had been
read to the Court. The factual basis of the plea in mitigation advanced had
been discussed by the procurator fiscal with the police. In light of that
discussion, the Crown did not accept as a matter of fact that the accused had
been holding the drugs for someone else.
However, the Crown did not seek or intend to dispute was being said, because
"there were no specific points of conflict which would enable the Crown to lead
evidence in rebuttal". That was because the disagreement between the Crown and
the accused related to questions of interpretation of the facts set out in the
narrative of the facts, with the defence contending that one thing had been
taking place and the Crown not accepting that. The Advocate Depute submitted
that the Crown was perfectly entitled to say that it did not accept the version
of the facts on which the plea in mitigation was based but indicate that it did
not seek to dispute it.
[13] The Advocate Depute confirmed that the Crown was content that I
should sentence the accused on a factual basis that the Crown do not accept as
being correct.
[14] During the course of the submissions, I was referred to the
following authorities Galloway v
Adair 1947
JC 7, Barn v Smith 1978 JC 17, Hughes v
Donnelly 1994 SCCR 598, H.M. Advocate v Bennett 1996 SCCR 331, Dawson v Ritchie 1998 SLT 807, McCartney
v H.M. Advocate 1997 SCCR 644, McPherson v H. M. Advocate 1999 SLT 1374 and H. M. Advocate v Kiloh Unreported 21 January 2005. Reference was also made to Benton & Brown's
Criminal Procedure (Sixth Edition) Para. 18-29.1.
Discussion
[15] The situation
with which I am confronted in the present case is such that I took the view
that I should issue an Opinion before I proceeded to sentence the accused. I reached that conclusion so that parties are
fully aware why I have offered counsel for the accused the opportunity to lead
evidence at a proof in mitigation. That offer was made after I had been advised
by the Advocate Depute that the Crown do not accept that the accused's
involvement with the drugs and money recovered from him on 12 October 2007 was
limited to his providing a safe house and keeping them on behalf of others, in
return for his receiving a quantity of drugs for personal use. Obviously, if
the offer of a proof in mitigation had been taken up and evidence had been led
on behalf of the accused, it would have been open to the Crown to have led
evidence as well.
[16] In my opinion,
it is self evident that when a court requires to sentence an accused it should
seek to do so on a factual basis that is true.
It is for the Crown to lay before the court the facts and circumstances
relating to the charge to which an accused has tendered a plea of guilty. In
the present case that was done by means of a written narrative the terms of
which had been discussed by the Advocate Depute and counsel for the defence in
advance of the first hearing in this case and have not been disputed on behalf
of the accused. However, the responsibility to which I refer rests on the Crown
whether or not an agreed narrative is read over and presented to the court. As
was made clear by Lord Justice General Rodger in H. M. Advocate v Bennett 1996 S.C.C.R. 331, at p. 338, the function
of the prosecutor is not discharged when he has moved for sentence. His duties
include that of ensuring that information relevant to the question of sentence
is placed before the sentencing judge and that the judge is alerted to the fact
that information in a plea in mitigation is disputed. As Lord Justice General
Rodger stated " While all decisions in matters of sentencing are for the trial
judge and are not the responsibility of the prosecutor, it is the duty of the
prosecutor to ensure so far as possible that accuracy is achieved in all
matters of fact relating to sentence. That is to avoid errors being made which
may lead to a sentence being imposed which is either excessive or unduly lenient."
[17] The case of Galloway v Adair, supra,
makes clear that if a statement which he has made on behalf of an accused
in extenuation is disputed by the Crown it must be left out of consideration by
the sentencing judge. That was
reaffirmed in the case of Barn v Smith,
supra. In the latter case, Lord
Wheatley suggested, at p.20 of the report, that in a situation when factual
allegations, which have been made by the prosecutor or in mitigation, are
denied by the other party they should be left out of account. He went on to
observe that if such a dispute arose it was open to the Court to call for
evidence in support of such competing versions.
[18] More recent
authority suggests that in such a situation it is for the sentencing judge to
make clear to an accused's representative that a line of mitigation, which is
being disputed by the Crown, can not be accepted on an ex parte basis. In such a situation, the sentencing judge should offer
a proof in mitigation and allow evidence to be led (see Hughes v Donnelly, supra, per Lord Justice Clerk Ross at p.600C and
McArtney v H.M. Advocate, supra, per
Lord Sutherland at 646B-C).
[19] Standing that
recent authority, which is reflected in the terms of para.18-29.1 of Renton and
Brown's Criminal Procedure (Sixth Edition), I do not consider that it is open
to me to call for evidence in the sense of my having power to require either
the Crown or the accused to lead evidence.
[20] In the present
case, the divergence in position between that of the Crown and that of the defence
is a material one. It could have a bearing on the sentence I impose. That
divergence of position relates to a question of fact, namely whether the
accused's role was limited to providing a safe house at 15D Powis Place and to holding drugs and money there
on behalf of others. It is maintained on behalf of the accused that his role
was limited in that way. The Crown do not accept that it was. That can only
mean that the Crown do not accept the truth of what is maintained on behalf of
the accused as having been his role. That is why I deemed it appropriate to
offer the accused the opportunity of leading evidence. When I did so, I was
conscious that the Advocate Depute and counsel for the accused have both submitted
that the line of mitigation advanced on behalf of the accused is consistent
with the narrative placed before the Court. As it remains possible that I may
yet hear evidence, and indeed further submissions in mitigation, I offer no
indication as to whether I accept those submissions.
[21] I also
recognise that the Advocate Depute has stated that the Crown do not intend to "actively
dispute" what is being advanced on behalf of the accused. I find it difficult
to reconcile that particular statement with the Advocate Depute having made it
clear that the Crown does not accept that the accused's role was limited to
holding the drugs and money at a safe house. As I understand it, the Crown
takes the view that if a proof in mitigation took place, it would not be in a
position to lead evidence to contradict any evidence led on behalf of the
accused. I am obviously not in a position to know what evidence the Crown could
or would wish to lead. Nor is to for me to offer any suggestions to the Crown
as to the position it should adopt, or the questions it might ask, during any
proof in mitigation.
[22] This is not a
case in which the Crown has restricted itself to saying that it does not intend
to contradict any facts being asserted on behalf of the accused. Such a
position could be adopted in a particular case for a variety of reasons,
including that the Crown was not in a position to lead evidence contradicting
any evidence led by the accused or that the Crown was, for whatever reason,
such as the wish to protect confidential sources of information, not inclined
to lead any evidence available to it. In that event, the Court could proceed to
sentence in the knowledge that the Crown had not informed the Court that it did
not accept the factual basis upon which the plea in mitigation proceeded. In my
opinion, such a situation would be different from that which has arisen in the
present case, in which the Crown has stated quite unequivocally that it does
not accept as correct the factual basis upon which counsel for the accused
seeks to proceed. Were I to ignore the Crown's position and proceed to sentence
on the factual basis outlined by counsel for the accused, I would departing
from the principle that the Court should seek to sentence an accused on a factual
basis that is true. I do not consider that it would appropriate for me to do
so.
[23] It is for the
accused to decide whether he wishes to lead evidence in mitigation. Assuming that it remains his position that he
does not wish a proof in mitigation, I will offer counsel for the accused the
opportunity to say anything further he wishes in mitigation. Thereafter, I
would propose to sentence the accused on the basis that his involvement in the
supply of the heroin and cocaine to which the two charges relates was not
limited to his providing a safe house for other individuals. I will impose sentence him on the basis that
he had a greater involvement in the supply of heroin and cocaine that was undoubtedly
taking place within his flat on 11 October 2007.
There is obviously a measure of uncertainty as to the precise nature of
the accused's involvement in that supply but such uncertainty is not uncommon
in cases involving contraventions of section 4(3)(b) of the Misuse of Drugs Act
1971, where any accused who is prosecuted will almost inevitably have been involved
with others, who have not been prosecuted, who may never have been identified,
and whose precise roles may be unclear.
