APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Eassie Lord Drummond Young Lord Wheatley	[2012] HCJAC 57 Appeal No: XC40/11 OPINION OF THE COURT delivered by LORD DRUMMOND YOUNG in APPEAL by MRS MARY HUTTEN MARTIN or LEES Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Anderson; Basten Sneddon

Respondent: I McSporran, Solicitor advocate; Crown Agent

28 October 2011

[1] On 15 November 2010 the appellant was convicted after trial at Dunfermline Sheriff Court of the following charge:

"On 28 May 2009 at 58 Beechbank Crescent, Kelty, Fife, you DON OGSTON LEES and you MARY HUTTEN MARTIN or LEES were concerned in the supply of a controlled drug, namely Amphetamine, a Class B drug specified in Part II of Schedule 2 to the Misuse of Drugs Act 1971 to another or others in contravention of Section 4(1) of the after mentioned Act; CONTRARY to the Misuse of Drugs Act 1971, Section 4(3)(b)".

Don Ogston Lees is the appellant's husband.

[2] The appellant has appealed against her conviction on two grounds. First, she claims that the Sheriff erred in law in repelling a submission of no case to answer made on her behalf in terms of section 97 of the Criminal Procedure (Scotland) Act 1995. In particular, it is submitted that the Crown had failed to demonstrate by corroborated evidence that the appellant had either knowledge or control of drugs which were recovered from her house, or that she had knowledge that she was concerned in an operation involving the supplying of drugs. Secondly, the appellant alleges that the Sheriff erred in law in misdirecting the jury in relation to the meaning of being concerned in the supplying of drugs contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. We will deal with each of these issues in turn.

Whether the appellant's involvement was established by corroborated evidence

[3] The house at 58 Beechbank Crescent, Kelty was occupied by the appellant and her husband. On 28 May 2009 several police officers attended there in possession of a search warrant. The house in question is the joint property of the appellant and her husband, and is occupied by them and their two children, aged 10 and 12. The evidence of the police officers was that when they arrived at the house the appellant's husband was in the living room. There were minor discrepancies in the police evidence as to where the appellant was at that point; we do not think that these are material. One officer, PC Andrew Gilmour, stated that the appellant met him at the door and appeared shocked. He stated in evidence that there were a lot of police in attendance and that this must have presented a fairly daunting sight. The appellant and her husband were in the living room when they were detained and cautioned. The appellant and her husband were then shown the search warrant and asked if there were any controlled drugs in the house. The appellant's husband said that there were, in the freezer in the kitchen. The appellant said nothing. The appellant's husband indicated a drawer of the freezer and stated that it contained amphetamine. In cross-examination PC Gilmour accepted that the appellant and her children were returning home when he arrived at the house.

[4] Another officer, PC Barry Tiller, saw the appellant and her husband in the living room after they had been detained. When asked if there were controlled drugs in the house the appellant's husband said that there were, in the freezer. PC Tiller and another constable, PC Colin Falconer, went into the kitchen and were shown the drugs. The appellant remained in the living room with other police officers. Her demeanour was more upset than that of her husband. PC Tiller accepted that having a significant number of police officers burst into the house was a dramatic event. Drugs were found in two drawers of the freezer, which also had foodstuffs in them. Other drugs were found behind a microwave; these had not been pointed out by Mr Lees. In cross-examination, PC Tiller stated that the appellant and her husband had been asked if there were controlled drugs in the house, and the appellant made no response.

[5] PC Colin Falconer, the police officer in charge of the search, stated that the appellant had arrived with her daughter in the initial stages of the search, and the daughter had been upset. PC Louise Todd, the productions officer, saw the appellant and her husband and daughter in the living room. The appellant appeared to be shaken. The appellant's husband then took other police officers into the kitchen and showed them the drugs. In cross-examination PC Todd stated that there had been no response from the appellant when asked if there were controlled drugs in the house; the appellant had been tearful. The drugs found amounted to a large quantity of amphetamine, 505.3 g, contained in two large bags in the third and fourth drawers of the freezer in the kitchen. A final police witness, PC David Beaumont, a drugs expert, gave evidence that the quantity of drugs, half a kilo, was greater than would be acquired for personal use; the majority of personal users would not buy more than 2 ounces. Moreover, some of the drugs had been separated into street deals, which did not indicate personal use.

[6] The sheriff noted in the first of his two reports that, when the appellant's husband directed the police to the drugs, that was done in the presence of the appellant. The appellant said nothing but made no show of surprise. It is not mentioned in the sheriff's reports, but it is accepted in the note of appeal that the drugs found behind the microwave amounted in total to 22.461g of amphetamine within opaque bags. Electronic scales were also found there. These items could not be seen by someone using the microwave, and according to the police evidence would only have been seen by someone lifting up the microwave unit. Cash was also recovered, £400 from the appellant's husband's trouser pocket and £50 each from a wallet and a purse in the kitchen. A closed notebook was also found on top of the freezer in the kitchen. Two or three pages within the notebook had writing on them, and of these one page was claimed by the Crown to be a tick list. This consisted of 12 names or nicknames including the appellant and her husband, each name with the entry "£5" next to it. Evidence was led from defence witnesses for the appellant's husband that the payments referred to money due in relation to a band of which the individuals in question were all members. That evidence was unchallenged.

[7] At the trial a submission of no case to answer was made on the appellant's behalf, on the basis that the Crown had not demonstrated by corroborated evidence that the appellant had either knowledge or control of the recovered drugs, nor had it been demonstrated by corroborated evidence that the appellant had knowledge that she was involved in a supply operation. This submission was repelled by the sheriff. The sheriff's view was that whether or not the appellant had knowledge and control was a matter to be determined from the facts and circumstances of the case. It could be inferred from the location of the drugs in the kitchen that the appellant had knowledge and control of the drugs, which were plainly a dealer's amount. He also had regard to the existence of both the large quantity of drugs and the smaller quantities that had been found in opaque bags behind the microwave, and to evidence such as the alleged tick list and electronic scales. From all of these he thought that it could be inferred that the appellant had both knowledge and control of the drugs.

[8] In presenting the appeal, counsel for the appellant submitted that to hold that the appellant must have known about the recovered drugs because they were found in a kitchen which she would have frequented amounted to speculation and was an assertion not based on the evidence. It was necessary that there should be corroborated evidence that the appellant knew of the presence of the drugs. If the drugs were concealed in a place accessible to more than one person, there must be evidence of the knowledge of the particular accused. No such evidence was available in the present case. Reference was made to Bath v HM Advocate, 1995 SCCR 323; White v HM Advocate 1991 SCCR 555; McGill v HM Advocate, 2000 SCCR 253; and Hughes and Brisland v Milne, 1990 SCCR 527. In the present case the drugs had been secreted in the freezer and behind the microwave. In evidence it had been said that the packages looked like fish; consequently even if there had been evidence that the appellant looked in the freezer, she would have been able to explain the position. For the Crown it was submitted that there was sufficient evidence. The drugs were in the kitchen, a place where the appellant, as one of the proprietors of the house, was likely to be. As a matter of common sense, it was likely that the appellant would have been aware of packages in the kitchen or the freezer. Reliance was also placed on the names on the tick list, and in particular on the appellant's absence of response when her husband had said that there were drugs in the house.

[9] This case involves the situation, not an unusual one, where controlled drugs are found within a house with a number of permanent residents. The particular question that arises is whether the inference can be drawn that one of those residents was involved in the supplying of the drugs. Drawing such an inference will usually require something more than mere knowledge of the existence of the drugs. Nevertheless, knowledge of the existence of drugs is clearly essential if the inference of involvement in the supplying of those drugs is to be drawn: Bath v HM Advocate, supra; and in the present case the argument focused on the existence or otherwise of knowledge. In the present case, the sheriff repelled the appellant's no case to answer submission on the basis of three items of evidence. First, a large quantity of drugs had been found in a freezer in the kitchen of the house where the appellant and her family lived, and on the basis that she was the housewife and mother it was not unreasonable to expect her to be aware of their presence. Secondly, smaller dealer bag quantities and scales had been found behind the microwave in the kitchen. Thirdly, a tick list had been found lying openly in the kitchen. In addition to these, the advocate depute relied on a fourth element, the appellant's lack of reaction when her husband said that there were drugs in the freezer in the kitchen.

[10] We begin by dealing with the second and third of these items of evidence. The electronic scales and dealer bags were found behind the microwave in the kitchen, and the evidence disclosed that they were fairly well concealed. Furthermore, there was no evidence as to how long they had been there. In the circumstances we do not think that the existence of these items can be relied on as evidence supporting the appellant's knowledge of a drug trafficking operation. The so-called "tick list" is said to have taken the form of a page in a notebook with a series of names, including those of the appellant and her husband, with "£5" opposite them. In our opinion the page in question does not appear to meet the description of a "tick list". The "tick list" in a drug-dealing operation is normally, to use proper commercial terminology, a combination of sales ledger and debtors ledger. The list in the present case does not look remotely like that. With a "tick list", there would be no obvious reason for the appellant and her husband to appear on the list, as they would be neither customers nor debtors in respect of their own supply operation. Moreover, there is no obvious reason why the relatively small sum of £5 should appear against each name on the list. No evidence appears to have been led to suggest that some code might have been in use. Consequently we do not regard the notebook as of evidential value.

[11] The first item of evidence relied on was the presence of a large quantity of controlled drugs stored in bags located in drawers in the freezer. Foodstuffs were also stored in those drawers. There was, however, no evidence as to how long the drugs had been in the freezer. Moreover, there was evidence that the packages looked like bags containing frozen fish. In these circumstances we are at best doubtful as to whether the inference can be drawn that the appellant was aware of the drugs. No doubt she was the housewife, and it might be expected that she would have access to the freezer. On the evidence, however, it cannot be ruled out that the drugs were placed in the freezer on the day on which they were found; the evidence disclosed that the appellant had just returned to the house when the police raided it, and it is not impossible that the drugs were placed in the freezer when she was out. Moreover, the fact that the drugs looked like frozen fish suggests that, even if she was aware of the packages, she would not necessarily have been aware that they contained controlled drugs.

[12] The fourth item of evidence relied on by the Crown was the appellant's lack of reaction when her husband referred to the drugs. It was said that such a lack of reaction could provide corroborating evidence of knowledge and of involvement in the supplying of the drugs. For this purpose, the case that was primarily relied on by the Crown was McGill v HM Advocate, supra. In that case, controlled drugs were found hidden behind the glove compartment of a car that had been recently bought by the appellant and was being driven by him. The glove compartment was on the passenger side of the car, and there was a passenger in the car when it was stopped. Evidence was led that the appellant's reaction was one of shock when police stopped the car and started to search it. When the drugs were found, however, he evinced no surprise. It was held that the evidence in the case was sufficient to draw the inference that the drugs were in the appellant's possession and under his control.

[13] Lord Prosser, delivering the opinion of the court, referred (at 2000 SCCR 253) to the fact that the matter will always depend on the circumstances of the specific case. Cases arise where the requisite knowledge can be inferred from the fact that the drugs were "in the open", perhaps in the accused's house lying openly there. He continued

"In other cases, where drugs are found concealed, questions will arise as to who might have access to the place where they are concealed and eventually found. If a number of people have access then it may well be that there is nothing to single out the accused as having been concerned in the supplying of the drugs. Our attention was drawn to the case of White... where it was held that there was insufficient evidence because various people were using the house in question and, if anything, the distinguishing feature for [the accused] was that she was not there very often. Our attention was also drawn to the case of Bath in which there was no way of deciding whether it was the accused or his father who might have concealed drugs in a car and know of them".

After considering the specific facts of the case, in particular the presence of a passenger in the car and the fact that it would not take great effort to conceal drugs within the glove compartment, Lord Prosser continued (at 255):

"There is however another aspect of the matter of which we regard as of some significance and perhaps crucial importance. There was evidence to the effect that when the police stopped the car and embarked on searching it, the reaction of the appellant was one of shock; whereas when the drugs were found he showed no surprise. It was submitted that these matters of reaction were neutral but it does not appear to us that they would have to be regarded as neutral. Taken along with the other evidence which would point at least to the substantial possibility of the appellant knowing of the drugs it appears to us that these reactions are matters which it would be open to a jury to take into account; and that if taking that into account, they would be entitled to reach the conclusion that the Crown had proved its case and had sufficiently excluded not merely people in the past but also the passenger as solely responsible".

[14] In our opinion McGill can be distinguished from the present case. Two features of that decision appear to us to be important. In the first place, the surrounding circumstances were quite different. The car belonged to the appellant, and the other person in it was a mere passenger; there was no indication that he had any closer connection with either the appellant or the car. That makes it inherently more likely that it was the appellant rather than the passenger who was the possessor of the controlled drugs. In the present case, by contrast, the appellant lived in the house with her husband, who took the police to the drugs in the freezer. That means that the inherent likelihood of the appellant's involvement is less, as another person in the house was plainly concerned in supplying the drugs. In McGill the appellant had recently purchased the car, but it is unlikely that the person selling a car will leave controlled drugs in it and evidence was led from the previous owner that he had not put the drugs in the glove compartment. Thus we think that the fact of recent purchase can readily be discounted.

[15] In the second place, in McGill the evidence relied on by way of reaction, which is set out in the second quotation in paragraph [13] above, was of a double reaction: first, when the police stopped the car, the appellant reacted with shock, whereas when the drugs were found he showed no surprise. In the present case the appellant appeared shocked when the police arrived at the house but, as the police witnesses very fairly conceded, that could readily be explained by the sudden appearance of a significant number of policeman at her home, which the police witnesses described as a "daunting sight" or a "dramatic event". Thus the significance of the initial reaction of shock or surprise is distinctly less than in McGill. When the appellant's husband indicated that there were controlled drugs in the freezer, the appellant did not react, and this feature was particularly relied on by the Crown as evidence of knowledge of the drugs. Nevertheless, it seems to us clear that in McGill the corroborating evidence relied on was twofold: the initial shock and the subsequent failure to react. When one of these elements is taken out the reaction evidence appears less strong. Moreover, the lack of reaction must be placed in context: what the present appellant failed to react to was not the finding of drugs concealed in her car, as in McGill, but the admission by her husband that he was aware of the existence of controlled drugs in the house. In this connection, it is important to bear in mind that the house was under the control of both the appellant and her husband, and that the appellant might have been aware in general terms that her husband was involved in some form of drug dealing operation without any active involvement in that operation. It has also to be borne in mind that the appellant had been cautioned. In all the circumstances, we think that the evidence of reaction, or rather lack of reaction, has significantly less force than the evidence that was relied on in McGill.

[16] For the foregoing reasons we are of opinion that the reaction evidence is not sufficient to amount to corroboration of the appellant's knowledge of the existence of controlled drugs in the house. On that basis, while recognizing that in some respects this is a narrow case, we have come to the conclusion that the submission of no case to answer should have been upheld by the sheriff. We accordingly allow the present appeal.

The terms of the sheriff's direction as to the meaning of being concerned in the supplying of drugs

[17] The second ground of appeal was that the sheriff had misdirected the jury as to the meaning of being concerned in the supplying of drugs in terms of section 4(3)(b) of the Misuse of Drugs Act 1971. The argument, as we understand it, is that the terms of the direction suggested that the ultimate consumer is one of those involved in the supplying of drugs. In our opinion this is not a fair representation of the sheriff's charge. The sheriff referred to the chain of supply, as is standard in such cases. The introductory part of his charge on this aspect of the case was as follows:

"'Being concerned in the supplying' calls for some comment. 'Supplying' has its ordinary and common sense meaning, it is parting with possession of a drug. It covers any form of supply, sale, exchange, barter, gift, it does not need to be money received in respect of the supply. 'Being concerned in' requires each accused active involvement in the supply chain. It can take many forms, people can be at the centre or the fringes of drug dealing, from the big barons to the street dealers. It can cover financiers, couriers, custodians, go-betweens, lookouts, advertisers, those who store drugs, those who break up bulk quantities, reduce their purity, provide into deals, package them, and supply of single deals. It covers supply itself or any link in the chain of supply and distribution from producer to ultimate consumer. It can relate to the drugs supplied to or supplied by the accused, but the accused must be involved in some way like that".

[18] When the foregoing passage is considered as a whole, it appears to us to be quite clear that the sheriff is referring to involvement in the supply chain itself, rather than to the position of the ultimate consumer, who is not a member of the supply chain. The emphasis is throughout on the process of supply and distribution, not on consumption. The same is true of later passages in the charge. The jury returned to court to ask for a further direction in relation to the term "concerned in the supplying", and the sheriff essentially repeated what he had said before. On this occasion he described the Crown case as being "that the evidence shows that they were both knowingly part of the distribution chain". At a later point he instructed the jury "Decide whether the accused was knowingly part of the supply operation". He distinguished being concerned in the supplying of a drug from the separate possible charge of being in possession of a drug with intent to supply to others. The repeated emphasis on the supplying and distribution of the drug seems to us to exclude clearly the position of the ultimate consumer.

[19] Nevertheless, for the reasons stated in the earlier part of this opinion, the appeal must be allowed.