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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Henvey & Anor v Her Majesty's Advocate [2005] ScotHC HCJAC_10 (03 February 2005)
URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_10.html
Cite as: [2005] HCJAC 10, 2005 SLT 384, [2005] ScotHC HCJAC_10, 2005 GWD 8-108, 2005 SCCR 282

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Henvey & Anor v Her Majesty's Advocate [2005] ScotHC HCJAC_10 (03 February 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Kirkwood

Lord MacLean

Lord Osborne

Lord Hamilton

 

 

 

 

 

 

 

 

 

 

[2005HCJAC10]

Appeal Nos: XC2/03

XC3/03

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

in

APPEAL AGAINST CONVICTION

by

STEVEN HENVEY and GEORGE REID

Appellants;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

 

 

Appellant: Jackson, Q.C., Mitchell; McClure Collins, Edinburgh: Shead, Richardson; Wheatley & Co., Edinburgh

Respondent: Lord Advocate, Mackenzie, A.D.; Crown Agent

3 February 2005

Introduction

 [1]      The appellants were convicted on 14 June 2002 of a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971(the 1971 Act). According to the terms of that charge they were concerned in the supplying of the controlled drug known as ecstasy. In support of that charge the Crown founded on the evidence of their possession of a bag containing the drug.

[2]      This court of five judges has been convened for the purpose of re- considering, in the light of the decision of the House of Lords in R v Lambert [2002] 2 AC 545, certain statements in Salmon v H.M. Advocate 1999 J.C.67 as to the law relating to such circumstances.

Section 28

 [3]      Section 28(2) of the 1971 Act, to which section 4(3) is expressly subject, states:

"Subject to subsection (3) below, in any proceedings for an offence to which this section applies it shall be a defence for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged".

It is not necessary for present purposes to set out the terms of subsection (3) which, as the Lord Justice General in Salmon observed at page 74, forms a particular case within the generality to which subsection (2) applies.

[4]      In Salmon, the court dealt with two unrelated cases in which the appellants were Salmon and Moore, who had been convicted of charges under sections 4(3)(b) and 5(3) of the 1971 Act respectively. The Lord Justice General stated that in section 5 cases where the drug was in a container it was for the Crown to establish, subject to any reliance by the accused on section 28, that he was in possession of the container and that it contained something. In regard to section 4(3) he said at page 81:

"In my view, by a parallel train of reasoning to that which applies in sec 5 cases, the Crown must establish that the accused knew that he was involved in supplying something, and must prove that the thing which he was concerned in supplying was the controlled drug libelled in the charge. Provided that the Crown establish those elements, they have done all that is required under sec 4(3) (b)".

 [5]      There is no dispute as to the correctness of this approach to sections 5 and 4(3)(b). It is in line with the decision of the Court of Appeal in R v McNamara (1988) 87 Cr App Rep 246. It is also supported by the speeches in Lambert. Thus at paragraph 64 Lord Hope of Craighead observed that the 1971 Act had adopted the approach to the word "possession" which had been taken by Lord Pearce in R v Warner [1969] 2 A.C. 256 at page 305, where he said:

"I think that the term 'possession' is satisfied by a knowledge only of the existence of the thing itself and not its qualities and that ignorance or mistake as to its qualities is not an excuse".

Lord Hope added that Parliament had also adopted the method suggested by Lord Reid in Sweet v Parsley [1970] AC 132 at page 150 for avoiding, on the one hand, the conviction of persons who were not blameworthy, and, on the other hand, placing on the prosecutor the full burden of proving mens rea where to do so would lead to many unjust acquittals. This was to transfer an onus in regard to mens rea to the accused, so that, in the words of Lord Reid, "once the necessary facts are proved, he must convince the jury that on balance of probabilities he is innocent of any criminal intention".

[6]      We turn now to the issue with which the discussion in the present appeals was principally concerned. In discussing the terms of section 28(2), the Lord Justice General said in Salmon at page 82 in regard to an example of a charge under section 4(3)(b):

"In such cases, the jury should be directed that, even if they are satisfied beyond reasonable doubt that the accused knew that he was involved in supplying the items which were in fact controlled drugs, they must go on to consider whether they are satisfied, on the balance of probabilities, that he neither knew nor suspected nor had reason to suspect that the items were controlled drugs rather than videos. If they are so satisfied, they must acquit the accused; if they are not so satisfied, they must convict him"

Likewise, in regard to a case under section 5 he said at page 79: "The accused will therefore be convicted, unless he proves that he did not know nor suspect nor have reason to suspect that the tablets were in the bag".

[7]      These remarks were strictly obiter, since, in the case of Salmon, his position was that he did not even know of the existence of the bag which contained the cocaine; and, in the case of Moore, the jury must have rejected his evidence that he was never in possession of the bag which contained the ecstasy. However, the words of the Lord Justice General were plainly intended to be, and were treated thereafter as being, an authoritative exposition of the law relating to the application of section 28.

[8]      The decision in Lambert was concerned with a charge of possession with intent to supply in contravention of section 5 (3) of the 1971 Act. The members of the appellate committee regarded section 28 as trenching on the presumption of innocence of the accused. Lord Steyn said at paragraph 35 that this could be put in two different ways: either through a transfer to the accused of the burden of disproving part of the gravamen of the offence or as imposing on him the burden of proving an excuse. In that connection he referred to a passage in the judgment of the Supreme Court of Canada in R v Whyte (1988) 51 D.L.R. (4th) 481 at page 493, where Dickson C.J.C. observed:

"The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of innocence. The exact characterisation of a factor as an essential element, a collateral factor, an excuse, or a defence should not affect the analysis of the presumption of innocence. It is the final effect of a provision on the verdict that is decisive. If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused".

 [9]      In Lambert the members of the appellate committee held by a majority that this raised a serious question as to whether the terms of section 28 were compatible with the right of an accused under article 6(2) of the European Convention on Human Rights, either on the ground that the interference was not justified (Lord Slynn of Hadley at paragraph 17, Lord Hope of Craighead at paragraph 89, and Lord Clyde at paragraph 154) or did not satisfy the criterion of proportionality (Lord Steyn at paragraph 41). With the exception of Lord Hutton, they agreed that section 28 could and should be "read down", in accordance with the interpretative obligation in section 3(1) of the Human Rights Act 1998, so as to impose, not a legal (or persuasive) burden of proof, but an evidential burden of proof. Thus, as Lord Hope stated at paragraph 94, the words "to prove" in section 28(2) should be read as if they were "to give sufficient evidence", with a corresponding meaning given to similar words in section 28(3).

[10]      The Lord Advocate accepted that, in the light of Lambert, subsections (2) and (3) of section 28 did not impose a legal burden of proof but only an evidential burden. We are satisfied that this concession was correctly made. It is sufficient for us to say that, whatever may have been the position prior to the coming into force of the Human Rights Act 1998, the effect of the Strasbourg jurisprudence and the application of section 3 of the Act lead to that conclusion. The discussion before this court was principally concerned with the implications of an evidential burden, and the outcome in the present appeals. We now deal with these subjects in turn.

The evidential burden

 [11]      Our views in regard to the evidential burden and its significance can be summarised in the following paragraphs.

1. It must be emphasised that for the discharge of the burden there has to be evidence. As Lord Slynn of Hadley observed in Lambert at paragraph 17: "It is not enough that the defendant in seeking to establish the evidential burden should merely mouth the words of the section". At paragraph 90 Lord Hope stated:

"But an evidential burden is not to be thought of as a burden which is illusory. What the accused must do is put evidence before the court which, if believed, could be taken by a reasonable jury to support his defence ... It is what the common law requires of a defendant who wishes to invoke one of the common law defences such as provocation or duress".

2. The evidence would have to cover each of the elements in the relevant subsection of section 28. Thus, in the case of subsection (2), the evidence would have to be to the effect that the accused neither knew of nor suspected nor had reason to suspect the existence of the fact alleged by the prosecution which it was necessary for the prosecution to prove if he was to be convicted of the offence charged.

3. As was pointed out by the Lord Justice General in Salmon at page 75, subsection (2) does not require that the accused must necessarily have given evidence. As he observed:

"Doubtless, that would often be the simplest mode of proof, but the necessary evidence might come, for example, from a 'mixed' statement or from witnesses speaking to what the accused was told was in the container or to the accused's apparent astonishment when the contents of the container were revealed and found to be a controlled drug".

4. It is important to bear in mind that the question of whether the evidential burden has been discharged is a question whether there is sufficient evidence for the purposes of the relevant subsection, for which it requires to be assumed that the evidence relied on is believed. Hence, as we have noted, Lord Hope spoke of the need for the accused to put evidence before the court "which, if believed, could be taken by a reasonable jury to support his defence". That is a matter for the trial judge, who would require to direct the jury accordingly.

  1. If that is the case, the Crown requires to meet that defence and to satisfy the jury beyond reasonable doubt that it should be rejected. If the jury believe evidence that the accused neither knew of nor suspected nor had reason to suspect the existence of the relevant fact, he must be acquitted. Even if they are not prepared to go so far as to believe that evidence, but are left in reasonable doubt about that matter, he must also be acquitted. Thus, as Lord Clyde stated in Lambert at paragraph 158 in regard to a section 5 case:

"If the jury are satisfied beyond reasonable doubt that the accused possessed the substance or product in question but are not satisfied beyond reasonable doubt that he knew that it was a controlled drug (or suspected or had reason to suspect that it was) then again they should acquit him. They can only convict if they are satisfied beyond reasonable doubt that the prosecution has proved possession of the controlled drug and, if the issue is raised, that the lines of defence set out in section 28 are without foundation"

 [12]      Where there is no issue as to whether the accused did not know or suspect or have reason to suspect the relevant fact, there is obviously no need for the jury to be given directions in regard to section 28. Thus, in a section 4(3) (b) case where no such issue is raised on the evidence, the conviction of the accused will depend on whether they are satisfied that the accused knew that he was concerned in the supplying of something, and are further satisfied that that thing was in fact a controlled drug. If, on the other hand, there is evidence which, if believed, could support a defence under section 28, the jury will require to be directed that they must acquit the accused if they accept that evidence, or are left in reasonable doubt about that matter.

The present appeals

[13] According to the evidence at the trial, the appellants were the subject of the police surveillance operation on 2 September 2000. At about 2:35 p.m. the appellant Henvey drove a motor car into a leisure complex, where he parked it and joined the appellant Reid in his motor car. They sat there in conversation for about 20 minutes. He then left Reid's car and went to his own one, which he locked. He then returned to Reid's car, and was driven away while in the front passenger seat. At about 3:30 p.m. the car was seen to be travelling in convoy with another car, which appeared to be leading it towards an industrial estate, where both cars stopped. Two youths ran towards Reid's car, one carrying a black carrier bag, which he handed through the driver's open window. Reid's car then left the industrial estate and returned to the leisure complex, where Henvey got out, carrying the black carrier bag, which appeared to have items in it, and entered his own car. Two police officers in plain clothes ran to Henvey's car. One of them opened the front passenger door and showed him her warrant card and informed him that she was a police officer. She placed her knee on the front passenger seat. When the other police officer arrived at the driver's door, Henvey locked it in order to prevent him gaining access. The police officer showed his warrant card and shouted "police" repeatedly. Henvey started his engine and drove off at speed, with the result that the first police officer was propelled from the vehicle after a distance of about 10 metres. The vehicle's side door was still open and collided with a parked car. Henvey then drove at speed towards an unmarked police vehicle which was approaching, as a result of which there was a head-on collision. Henvey was then detained. When his car was searched it was found that inside the carrier bag was a tub containing a number of white tablets. Within the foot-well of the passenger side of the vehicle there was another tub containing more white tablets, which had apparently fallen out of the carrier bag. On examination it was found that the tubs contained a total of 3,891 ecstasy tablets, with a maximum street value of £38,910.

[14]      Henvey gave evidence that he had asked Reid if he knew anyone who could get him SIM cards. The appellants went to meet the two youths who handed the bag into Reid's car. Henvey understood that the bag contained SIM cards. The appellants then returned to the leisure complex, where Henvey left Reid's car carrying the bag. In cross-examination Henvey admitted that he was going to sell the cards and was going to deal in stolen property for personal gain. He also admitted that Reid had taken the bag when it was handed into the car and had given it to him. He knew that the bag contained something, and could see the top of a container. He could see the lid of a tub but he did not look inside. When the car stopped at the leisure complex he left the vehicle taking the bag with him and entered his own car.

[15]      Reid did not give evidence. However, evidence was given in the Crown case of a statement which he had made to police officers at a tape recorded interview. In the course of that interview he admitted that he was dealing in a commodity, and stated that it was other than drugs, namely cigarettes.

[16]      In the course of his charge to the jury the trial judge directed them (at pages 35-36):

"If you are satisfied beyond reasonable doubt that the accused knew he was concerned in the supplying of something and that that thing is ultimately proved to be ecstasy, the accused could still be acquitted if he proves-if he proves-on the balance of probability, that he did not know, nor suspect, nor have reason to suspect, that what he was concerned in supplying was in fact a controlled drug.

Now, you have heard evidence from [Henvey] that he thought he was concerned in supplying SIM cards, because he said that he thought that was what he was taking delivery of, and that he was going to check them at home, and if they were okay he would then pay I think it was £3000 or thereabouts for them the following day or shortly thereafter, and then he would deal in them.

If you believe the accused, ladies and gentlemen, on this matter, you must acquit him. Even if you don't believe him but are left overall with the view that it is more probable than not that he neither believed, nor suspected, nor had reason to suspect, that the package contained controlled drugs, you must acquit him".

 [17]      In regard to the appellant Reid, the trial judge then reminded the jury that his position was set out in the record of his police interview. He properly reminded them also that its contents had not been the subject of cross-examination, and that they would require to consider whether there were inconsistencies within the document and, if so, what significance to attach to them. They could also consider how the explanation related to other evidence in the case. He directed them that if they concluded that he was indicating that he was dealing in some commodity other than drugs, the position was the same as he had outlined in relation to Henvey, because he had accepted that he was involved in the process of supplying something, namely cigarettes. He went on to direct the jury at page 38 as follows:

"Alternatively, if you concluded that what he was saying was that he was unaware of the existence of the package itself, or he was unaware of the contents of the package, or if you have a reasonable doubt about that, you would acquit him because you would not be satisfied that the Crown had established the necessary knowledge on his part. And again there are various passages that [Reid's solicitor advocate] referred to in the context of the document along those lines-in particular I think at page 43 there is some indication that he didn't know what was there".

 [18]      The Lord Advocate accepted, in line with the concession which he had made in regard to the nature of the burden under section 28, that the trial judge had misdirected the jury in following what had been said in Salmon. However, he submitted that there had been no miscarriage of justice. This was based on the proposition that, even if the jury had been directed to the effect that there was only an evidential burden on the appellants, they would have convicted them. He submitted that the evidence against the appellants was strongly incriminatory. He questioned whether, against that evidence, the defence had discharged the onus of displacing the inference which arose from it. It was not enough for Henvey to say that he did not think that the bag contained drugs. According to the evidence, he could see the top of a tub, and he had not checked the contents of the bag. There was nothing to show that he had no reason to suspect that the bag contained drugs. There were no surrounding circumstances to support his statement that he expected the bag to contain SIM cards. The evidence was not sufficient to satisfy section 28. In the case of Reid, it was difficult to see how he could have thought that he was obtaining cigarettes in a tub. In any event the jury were entitled to look at the whole evidence, which disclosed a conflict between the appellants as to what each of them thought the bag contained. The Lord Advocate submitted that the court should proceed on the basis that the jury had rejected what each of the appellants had said. He added that if the trial judge had not used the words "it is more probable than not that", which we have quoted in paragraph [16] above, there would not have been a misdirection.

[19]      We consider that the misdirection gave rise to a miscarriage of justice. The submissions made by the Lord Advocate did not appear to us to draw a clear distinction - which must be drawn - between the question whether, on the one hand, there is evidence which, if believed, could support a defence under section 28, and, on the other hand, the question whether that evidence is such as to leave a reasonable doubt about such a defence when it is considered in the light of the evidence as a whole.

[20]      As regards the first of these questions we are in no doubt that there was evidence on which each of the appellants could rely in support of a defence under section 28. In the case of Henvey it was his evidence that he understood that the bag contained SIM cards. In the case of Reid it was the evidence of his statement at police interview that he understood that it contained cigarettes. The substance of that evidence clearly implied that in each case the appellant neither suspected nor had reason to suspect that it contained a controlled drug. Explicit evidence of this was unnecessary. Whether that evidence was contradicted by other evidence in the case is neither here nor there from the point of view of raising the defence under section 28.

[21]      In regard to the second of these questions, this would have been a question for the jury, had they been correctly directed that they could not convict the appellants unless the Crown had satisfied them beyond reasonable doubt that the defence under section 28 should be rejected. That is a question which this court cannot answer in favour of the Crown because the jury were misdirected, and because we cannot in any event determine how the jury would have answered the question. The Crown cannot maintain that the conviction of the appellants means that the jury must have rejected what they had said about the contents of the bag, since the trial judge unmistakably directed the jury that it was for the defence to prove that the appellants did not know or suspect or have reason to suspect that the bag contained the controlled drug. He did not place the onus on the Crown to exclude the defence beyond reasonable doubt, and in particular direct the jury that, even if they did not accept the evidence of the appellant, if they were left in a reasonable doubt in regard to his defence, they must acquit him.

[22]      In these circumstances we are satisfied that, by reason of the misdirection by the trial judge, each of these appeals against conviction should be allowed.

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