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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Clark & Anor v. Her Majesty's Advocate [2002] ScotHC 63 (15 May 2002) URL: http://www.bailii.org/scot/cases/ScotHC/2002/63.html Cite as: [2002] ScotHC 63

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Clark & Anor v. Her Majesty's Advocate [2002] ScotHC 63 (15 May 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Coulsfield Lord Hamilton Lord McCluskey	Appeal No: C465/00 and C487/00 OPINION OF THE COURT Delivered by LORD COULSFIELD in NOTES OF APPEAL AGAINST CONVICTION AND SENTENCE by JAMES MICHAEL MAITLAND CLARK and JOHN BEATTIE Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

 

Appellant: Burns, Q.C., Brodie; Balfour & Manson

Appellant: Scott; Balfour & Manson

Respondent: Anthony, Q.C., A.D.; Crown Agent

15 May 2002

1. Both appellants were convicted on 13 June 2000 of contravention of section 4(3)(b) of the Misuse of Drugs Act 1971 by being concerned in the supplying of diamorphine. As libelled, the charge covered the period between 30 January 1999 and 30 June 1999 but the Crown evidence fell into two main chapters, the first relating to a trip to London made by the appellants along with another man named Archibald Whitehead on 29 and 30 April 1999 and the second to a visit to Manchester by the appellants along with Jason Beattie on 30 June 1999. Both Whitehead and Jason Beattie along with a fifth man, whom we shall refer to as "H", were co-accused with the appellants in relation to the charge. However in the course of the trial, the indictment was deserted pro loco et tempore in respect of H, as a result of a problem which had arisen and which led to the withdrawal of his counsel, and Jason Beattie pled guilty to the charge subject to certain deletions which had the effect of restricting his involvement to the Manchester episode. Whitehead was convicted in terms which had the effect, in accordance with the evidence, of restricting his involvement to the London episode. He has not appealed against that conviction. The two appellants were convicted by the verdict of the jury under certain deletions, which were not quite the same in respect of the two cases but which made little material difference to the substance of the matter. In each case the conviction related to both the London and the Manchester episodes. Both appellants were sentenced to eleven years' imprisonment. Both originally submitted appeals against sentence as well as conviction, but the appeal against sentence by Beattie was not insisted in. We should observe also, at this stage, that at the beginning of the appeal hearing counsel for Clark sought leave to lodge an additional ground of appeal raising a question in relation to the directions given by the trial judge and section 28 of the Misuse of Drugs Act 1971 but in our view this attempted ground of appeal came too late and in any case did not appear to raise a material issue in relation to the conviction. We therefore refused leave.
2. The principal submission for both appellants was that the evidence led was insufficient to justify their conviction. There was also a subsidiary and limited submission on behalf of each appellant in regard to the trial judge's directions in regard to concert.
3. The evidence led appears to have been largely undisputed. It is narrated in some detail in the trial judge's reports and mainly derived from observations carried out by police officers. We do not think any useful purpose would be served by repeating at length in this opinion the trial judge's account of the evidence. It is sufficient to give a relatively brief summary of it. As regards the London episode, the appellants and Whitehead were seen by police officers in the centre of Glasgow on the morning of 29 April 1999. They drove to London in a car owned and driven by the appellant Clark and were kept under observation during the journey by Scottish police officers and in London by Metropolitan police officers. Beattie was observed making a telephone call from a kiosk in Peckham. Shortly thereafter H arrived in the vicinity. He and Beattie together entered a public house where they were joined by Clark and Whitehead. The appellants and Whitehead were seen to meet H in a public house in Peckham. Clark was later seen leaving the public house. He went to the car in which the appellants and Whitehead had travelled from Glasgow and took a white plastic bag from the boot. As he crossed the road returning to the public house and carrying the white plastic bag he passed in front of a motor cycle ridden by a police constable. The constable gave evidence that the bag was being held tightly by Clark in one hand, that it contained what looked like bundles of notes and that it appeared to contain a large amount of cash. Clark re-entered the public house and put the white bag down at Beattie's feet while Beattie was talking with H. Later Beattie and H left the public house together. As Beattie left, he took off his jacket, picked up the white plastic bag and wrapped it in his jacket and carried it with him. Beattie and H went to a block of houses in which H then resided. Later they returned to the public house, neither carrying a plastic bag. There was evidence about movements to and fro between the public house and the car in which the appellants had come from Glasgow. Later, there was evidence that Beattie went to a car parked in a nearby road in which H had previously been observed and took a white plastic bag from that car and put it in the boot of the car which had come from Glasgow. He then drove the Glasgow car a short distance and parked it again. On the following morning, all three, that is the two appellants and Whitehead, were seen in the vicinity of the car from Glasgow and at one point Clark was seen to look in the boot, take out a white bag, look inside it and put it back into the boot. Beattie and Whitehead eventually approached the car carrying a blue carrier bag and a stick which were put into the boot of the car, the blue carrier bag being similar to one which Whitehead was carrying when he was later arrested. Later Beattie, in the company of Whitehead, was seen carrying the blue carrier bag which appeared to contain a number of items. Later again Whitehead entered a taxi in Peckham High Street while the appellants remained outside and Beattie passed the blue carrier bag and a stick to Whitehead. Whitehead went by taxi to Euston Station where he was observed carrying the blue carrier bag and walking in a manner different from that which he had previously been seen to adopt apparently designed to give the impression that he had difficulty in moving. Whitehead travelled by train to Glasgow. He was observed throughout the journey and although he changed seats once he sat throughout with the blue carrier bag between his knees and did not visit the buffet car or the toilet nor leave the train at any stop. When he arrived in Glasgow he was wearing a hat which he had taken from the blue carrier bag and using the stick. He was intercepted by drug officers and the carrier bag was examined and found to contain a white plastic bag which had within it a taped package which contained 971.4 grams of diamorphine. Whitehead's initial explanation was that he had come from Carlisle and happened to have seen the carrier bag lying on a bench at Carlisle station. In a subsequent search of H's home there was recovered a diary which included a note of Beattie's telephone number in Glasgow.
4. As regards the Manchester trip, there was evidence that officers of the Scottish Crime Squad located the appellant Beattie early in the morning of 30 June 1999 and watched as he and Jason Beattie met Clark. All three then drove to Manchester, Clark being the driver. Jason Beattie had with him a black holdall. Jason Beattie and the two appellants went into a café. Shortly thereafter, the appellant Beattie was seen walking up and down the pavement outside the café where he was joined by Clark. They gave the impression of waiting for someone. Some time later a red Fiat car appeared. It stopped and the appellants got into the rear seats. As soon as they entered the car, a passenger in the front passenger seat appeared to lean down and lift something from the front footwell of the car and turned towards Beattie. The car drove a short distance, turned into a side street and within a minute re-appeared and retraced its course. It then stopped and the appellants got out, having been in the vehicle for less than a minute. They then returned to the café. After some minutes they re-emerged with Jason Beattie, walked along a row of shops to a corner and stood for some time outside a public house. After a period, Jason Beattie separated from the two appellants and crossed to a central reservation in the roadway. Clark endeavoured to stop a taxi. A bus then came and Jason Beattie boarded it carrying the black holdall. Clark was at the door of the bus as Jason Beattie boarded it and from that position he gestured to John Beattie, who moved to the central reservation before the bus drove off. An unidentified man was present but after the bus departed he went in one direction and the appellants in another. The bus was signed "Picadilly" which is a district in the centre of Manchester near a bus station. There was evidence from bar staff at a public house near the bus station that a young man with a Scottish accent and bearing some resemblance to Jason Beattie had spent about an hour in the public house about lunchtime one day and had told them he was waiting for a bus for Scotland. At about 1.45pm on that day, Jason Beattie entered the bus station and boarded a bus for Glasgow. He was carrying the black holdall when he entered the bus station and when the bus arrived at Buchanan Street Bus Station in Glasgow, Jason Beattie retrieved a black holdall from the boot of the bus, similar to the one he had been seen with earlier in the day. He was detained and searched and found to have two brown packages in the waistband of his trousers. These contained two blocks of diamorphine weighing 490.3 and 490.6 grams.
5. The principal submission for the appellant Beattie was that there had been no allegation by the Crown that the accused were acting in concert and indeed the Crown had disavowed such a position. Accordingly it had to be proved in regard to each accused that he had carried out an individual role in the supplying of heroin. As regards the Manchester trip, the Crown had to prove that the appellant Beattie knew that he was involved in the supplying of something: reference was made to Salmon v. HMA 1998 S.C.C.R. 740 at p. 756. Jason Beattie had been outwith the presence of the appellant Beattie for significant periods while they were in Manchester. When he was detained, Jason Beattie's statement was that he had found packages behind a cistern in a lavatory. The only person with a holdall was Jason Beattie but there were no drugs in it when he was detained and there had been no dealings with bags, packages or holdalls. No-one had been seen carrying anything, except the black holdall. There was therefore nothing to show that the appellant Beattie must have known that Jason Beattie had got something in Manchester. There was no direct tie-up between the Manchester trip and the London trip. Different people had been involved and there was a substantial gap in time. As regards the London trip, there was evidence about money being in a white bag but the white bag actually found in Whitehead's blue bag was distinctive as it had an Asda symbol on it which had not been reflected in the records of the police observations. There was evidence that the white bag carried by Clark from the car had been placed at Beattie's feet but there was no evidence of any transfer of money or of any substance and in any case the money alone could have had a number of explanations. The appellant Beattie had had only fleeting possession of the blue carrier bag which Whitehead carried to Glasgow and that did not give rise to an inference of Beattie having participated in a chain of supply. There was indeed nothing to connect what happened on the 29th with what happened on the 30th and nothing to show that there was more than one plastic bag. There was therefore nothing to permit an inference from Beattie's actions, considered by themselves, that there was any connection with the supply of drugs or indeed of anything.
6. The principal submission on behalf of Clark was that the evidence in relation to his own actings was insufficient to warrant an inference that he was concerned in the supplying of diamorphine.
7. As regards the London trip, there was evidence that Clark had left the pub, gone to the car and taken a white plastic bag and one constable had said that it appeared to contain money. However the only evidence about the bag was defence evidence and both Beattie and Clark had said that the bag belonged to Beattie. There was no evidence that the white bag seen the next day was the same as that seen on the previous day and the fact that it was an Asda bag was never put to anyone. There was no evidence of Clark being in contact with H except in the pub. Clark was in effect only the driver to London. As regards the Manchester trip, all that Clark had done was to drive Jason Beattie and John Beattie to Manchester. Jason Beattie's drugs had been concealed on his person and there was quite a gap in the surveillance of Jason Beattie, amounting to two hours. If the evidence about what happened when Clark and Beattie were in the car was relevant, the person in the front seat had been seen to turn to Beattie. Nothing significant had emerged from the searches of the houses of all the accused. From the evidence, there was nothing to suggest that Clark had been engaged in active participation. The only way in which there could be sufficient evidence against the appellant Clark was by having regard to what others knew and what they did but on a concert basis the Crown would have to show that there was a common plan. As the case had been presented, all that the Crown could show was that Clark had been present and that there were drugs found.
8. If the evidence in relation to the Manchester trip had required to be considered on its own, we can see that there might well have been substance in the argument that there was not sufficient evidence to entitle the jury to infer that Clark, and perhaps even Beattie, were involved in the supplying of diamorphine. We do, however, think that there is sufficient similarity between the events on the London trip and those on the Manchester trip to entitle the jury to have regard to the evidence on one when considering the position on the other. The method of operation was similar in both cases. In both cases Clark and Beattie went accompanied by a third person who, it could plainly be inferred, acted as the actual carrier of drugs to Glasgow. In both cases there were contacts by each appellant with other persons who might have been the source of a supply of drugs. In the London trip, there was clear evidence, from one witness, that a substantial sum of money was taken to London and there is no doubt on the evidence that Whitehead received a supply of drugs which he carried from the time when he left the company of the two appellants until the time when he was arrested. Each of the appellants was closely connected with the involvement of that money and the evidence of the other activities of each of them in London could well justify an inference that to his knowledge it was displayed in purchasing the drugs ultimately recovered from Whitehead. Although the position is not quite so clear in regard to the Manchester trip, there is, taking all the evidence together, sufficient to infer that Jason Beattie also received the drugs with which he was found as a result of a purchasing exercise in which each of the appellants was actively and knowingly involved. In all the circumstances, there was in our opinion sufficient evidence to entitle the jury to convict both Beattie and Clark.
9. Each of the appellants also has a ground of appeal in the following terms:

"There was a miscarriage of justice on the following grounds...3. The trial Judge failed to give any adequate direction on the law of concert applicable in this particular case."

10. The submission was that the trial judge had given the jury misleading and inaccurate directions in relation to the concept of concert. By the time that he directed the jury, Jason Beattie had entered a plea of guilty in the presence of the jury and had been convicted in terms of that plea. The trial judge had correctly directed the jury that the fact of his having pled guilty had no bearing upon the cases of the other accused, including the appellants. However, having said that, the trial judge had immediately gone on to say, "During your deliberations later today you may well have to consider what Jason Beattie was doing on certain days involving the trip, or on one day, rather, involving the trip to Manchester." This, it was submitted on behalf of Beattie, was an invitation to the jury to find Beattie guilty, on the basis of concert, of the criminal actions committed by Jason Beattie in Manchester and Glasgow. That submission was adopted on behalf of Clark mutatis mutandis. It would have been quite wrong for the trial judge to suggest to the jury that the appellant could be convicted on the basis of concert with any of the other accused, because the Crown had, correctly, not relied upon concert between either appellant and any other person named in the indictment. It was not suggested that the trial judge had misdirected the jury as to the approach to be taken to considering a case under section 4(3)(b) of the Misuse of Drugs Act 1971; but, by specifically inviting the jury to have regard to the actings of Jason Beattie round about the time when he was in the company of the appellants in Manchester, he was suggesting that the appellants might be found guilty on an art and part basis with the convicted Jason Beattie. The same considerations applied to the actings of others than the appellants while all were together in London. Attention was drawn to the various passages in the judge's charge in which he referred to the actings of the other accused in whose company the appellants had been from time to time in Glasgow, Manchester and London.
11. In our opinion, the submission is misconceived. The concept of art and part guilt, often also referred to as the 'doctrine' of concert, is a legal device that enables one person at common law to be held criminally responsible for the criminal actings of others. Thus if several persons embark upon a joint criminal enterprise together then, broadly speaking, each is held responsible, as if he were the direct actor, for all the criminal acts, whether of himself or of the others, perpetrated in the course of carrying out the enterprise, provided that those criminal acts are such that each participant must have had them in mind as being necessary and appropriate acts for the carrying out of the joint criminal enterprise. In order to invoke the concept successfully against an accused who was one of the group, the prosecutor will seek to prove that there was a joint criminal enterprise, that the criminal acts carried out and founded upon were of a character that the participants must have had in contemplation when they decided to join together in the enterprise and that that accused played a material part in the carrying out of the joint enterprise when the acts were performed, whether it was he or another who actually performed them.
12. In the present case, however, the prosecutor did not seek to rely upon this well understood concept. He set out to prove only that each appellant was "concerned in" the supplying of controlled drugs during the period and at the places in question. The decision in Kerr v H.M. Advocate 1986 J.C. 41 shows that the activity at which the subsection is directed embraces a multitude of necessarily related activities commencing with importation or production of the controlled substance and including the handling, storing, processing, parcelling, transportation and delivery and sale of the drug, and even financing the transaction. To secure a conviction, the prosecutor has to establish that there was a supplying operation and that the accused whose conviction he seeks was involved himself in a material way in one or more aspects of that operation. The case against any such accused has to be considered separately, in the sense that he is not to be convicted of being concerned in the drug supplying operation just because he was associating with others who plainly were actively involved in such an operation. He has to be shown to be personally, actively and knowingly involved in the operation. We share the doubts expressed by Lord Justice General Rodger in Salmon v. H.M. Advocate, at p. 763B, as to the appropriateness of trying to apply the concept of concert in cases under section 4(3)(b).
13. In the course of his charge the trial judge said:-

"You must, as I have sought to make it clear, return separate verdicts against each Accused, and you may feel, therefore, that one way to proceed is to consider the case against each Accused in the order in which their names appear on the Indictment. The cases against each of them must be considered separately.

14. In the first instance you may wish to decide whether it has been proved to your satisfaction that at some or all of the places set out in the Indictment, within the dates specified in the Indictment, an enterprise whose objective was the supply of heroin to others was taking place. Unless you were satisfied about that, that would be an end of the Crown case. Then you might wish to address yourselves as to what has been proved that each Accused did. Such findings may cover what a particular Accused did when he was on his own and what he did when he was in the company of or the proximity of other persons.
15. In the course of carrying out that exercise in relation to each of the three Accused in the dock, you may well find yourself considering the actings of other of the Accused and, indeed, the actings of other persons who have been mentioned in the evidence. In this case the evidence bearing on the actions of one Accused may have relevance when it comes to consider the cases of the other Accused, clearly there is a measure of overlap in the evidence which you have heard. ...

"Ladies and Gentlemen, in considering the case against each Accused your principal focus requires to be in deciding what that particular Accused did, because it is on the basis of a particular Accused's own actings, and on those actings alone, that you must decide whether he was concerned in, and knew he was concerned in, any supply of heroin that you hold to have been taking place."

Supply of drugs may involve others, but any finding that a particular Accused was concerned or involved to any extent in the supply of heroin as it is specified in this charge, must be based on what you hold the Accused himself to have done and what he knew he was doing. Any inferences you're prepared to draw in that regard as to the state of knowledge of a particular Accused which is adverse to the interest of that particular Accused, must be based on what the particular Accused did."

16. What is clear, and is made quite clear in the charge, is that the evidence must show that there was a drug supplying operation being carried out and that the accused person was knowingly playing an active part in carrying it out. If it is shown, as it usually will be, that others were engaged in carrying out the operation, then the accused's association with those others at the times when they were shown to be so engaged, taken in the context of evidence as to his own activities, may be relevant to infer that he was actively and knowingly concerned in the prohibited activity. If it is so established, then his guilt does not depend on the application of concert but upon the inference to be drawn from his own actings. Responsibility for the actings of the others is not attributed to him by operation of any legal rule or concept; evidence as to their actings serves to show that the operation was being carried out. His involvement in their actings and his association with them at material times provide material from which an inference may be drawn that he too was actively concerned in the supplying operation.
17. These grounds of appeal must therefore also fail in respect of each appellant. In all the circumstances, therefore, we see no merit in the submissions made on behalf of the two appellants and we shall refuse both appeals against conviction. Clark's appeal against sentence remains outstanding.