APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lady Paton

Lord Abernethy

[2008] HCJAC 1

Appeal No: XC269/06

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

APPEAL AGAINST CONVICTION

BRIAN PAUL FLETCHER

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Act: Duguid, Q.C., A.L. Brown; Gilfedder & McInnes, Edinburgh (Appellant)

Alt: McConnachie, Q.C., A.D.; Crown Agent (Respondent)

1 January 2008

The charge

[1] The appellant was indicted, with seven others, in the High Court at Edinburgh on various charges alleging contraventions of inter alia the Misuse of Drugs Act 1971. By the close of the evidence the appellant faced only one charge (charge (1)). That charge, as by then amended on the motion of the Crown, was in the following terms:

"between 1 January 2002 and 11 June 2004, both dates inclusive, at East Car Park, Low Causeway, Culross; the public car park at Low Valleyfield; 52 Chapel Place, High Valleyfield; 67 Chapel Street, High Valleyfield; 6 Valleyfield Avenue, High Valleyfield; 23 Pentland Terrace, High Valleyfield; all Fife and elsewhere you BRIAN PAUL FLETCHER [and four others], while acting along with David John Jones were concerned in the supplying of a controlled drug, namely Cannabis Resin, a Class B drug specified in Part II of Schedule 2 to the aftermentioned Act until 29 January 2004 and now a Class C drug specified in Part III of Schedule 2 to the aftermentioned Act, to another or others, in contravention of section 4(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971, section 4(3)(b)".

The amendment had included the deletion, at the end of the list of locations, of two other addresses in Fife.

The evidence

[2] The evidence led by the Crown in support of proof of charge (1), in so far as directed against the appellant, had included evidence that on three days in May 2004 he had travelled by hired vehicle from England to certain places in Scotland and there participated in the transfer of certain containers to other vehicles. One of these dates was 26 May when a Ford Mondeo motor car was observed to proceed via the M74 and A80 to Bourtrees Farm Service Station near the south side of the Kincardine Bridge. At that service station the driver of that car was observed to transfer, with the assistance of the driver of another car parked there, two large cardboard boxes from the boot of the Ford Mondeo into the boot of the other car. Although there was no direct identification of the appellant as the driver of the Ford Mondeo, there was evidence (some of it led by the defence) from which the jury were entitled to infer that the appellant was indeed that driver. A ground of appeal challenging the sufficiency of the evidence in that respect was departed from. The other car having driven off, it was shortly thereafter intercepted by police officers. Within the boot of that car there were found the two transferred boxes, each of which contained a substantial number of bars of cannabis resin.

[3] Ultimately, there was no dispute at the trial that the appellant had driven on the day in question from England and made the transfer at Bourtrees Farm Service Station. The appellant's defence was that he was the innocent conveyor of the boxes in question, having no knowledge of their true contents.

The verdict

[4] On their return the jury were asked certain questions and made certain replies. These included the following:

"THE CLERK: Starting with the first accused, No. 1, Brian Paul Fletcher, what, sir, is the jury's verdict on that charge?

THE FOREMAN: Guilty.

THE CLERK: Is that unanimous or by a majority of the jury?

THE FOREMAN: By a majority.

THE CLERK: Do the jury have any amendments to make to Charge 1?

THE FOREMAN: The verdict applies to 26th May at Bourtrees Farm services.

THE CLERK: Just take that slowly. 26th May 2004?

THE FOREMAN: 2004.

THE CLERK: And the location was?

THE FOREMAN: Bourtrees Farm service station.

...

LORD MACKAY: ... As I understand that verdict you are returning, it is guilty in respect of what happened on 26th May 2004 at Bourtrees Farm service station?

THE FOREMAN: Yes, that is correct.

LORD MACKAY: Full stop?

THE FOREMAN: Yes.

LORD MACKAY: So that is the equivalent of deleting any reference to the other places named in that charge?

THE FOREMAN: Yes."

[5] A discussion subsequently took place between the trial judge and junior counsel for the appellant as to the terms in which the jury's verdict against him should be recorded. In the event it was recorded in the following terms:

"The Jury by a majority find the accused Brian Paul Fletcher guilty on charge one (as previously amended) on 26 May 2004 at Bourtrees Farm Services".

Submissions for the appellant

[6] The appellant's only remaining ground of appeal concerns the competency of that verdict. Mr. Duguid on his behalf submitted that (1) there was no procedural provision which enabled a jury to add words as part of the libel, (2) there was no procedural provision whereby anyone other than the Crown could amend an indictment and (3) the verdict of the jury as returned and recorded did not specify a location within the jurisdiction of the court. While a jury might, before their verdict was recorded, be asked to elucidate that verdict (McGarry v HM Advocate 1959 JC 30), it could not amend the libel. That was, in effect, what this jury had done. Reference was made to Blair v HM Advocate 1989 SCCR 79. While the Appeal Court could in some circumstances substitute under section 118 of the Criminal Procedure (Scotland) Act 1995 an amended verdict of guilty (Salmond v HM Advocate 1991 SCCR 43), it could not do so when the verdict returned and recorded was fundamentally incompetent. Reference was made to Brady v HM Advocate 1986 SCCR 191. As a court could not at its own hand amend a complaint (Brannon v Carmichael 1991 SCCR 383), so a jury could not return a verdict which purported to amend the libel. The locus averred was of the essence of a charge (Symmers v McFadyen 2000 SCCR 66). Although it was accepted that Bourtrees Farm Service Station was within the jurisdiction of the High Court, the verdict as returned not having disclosed that, it was bad. Reference was made to Herron v Gemmell 1975 SLT (N) 93.

Submissions for the Crown

[7] The Advocate depute submitted that it was abundantly clear what was the intent of the verdict and what was the basis on which that verdict had been reached. The jury had, on the basis of their view of the evidence, legitimately concluded that on 26 May the appellant had by his actings, and in particular those at Bourtrees Farm Service Station, been concerned in the supplying of the drug in question. The jury had not amended the libel but explained that "elsewhere" on their findings related in particular to that service station. Their restricted verdict was beneficial to the appellant. The Crown had not perilled its case on named locations but, in the circumstances of this case, which included events in England, had averred "and elsewhere", which included the service station. It might have been neater if the trial Advocate depute, who had moved the court to amend the charge by deleting certain locations, had at the same time, in light of the undisputed evidence, also moved to amend it to include Bourtrees Farm Service Station specifically. It was clear that the court had jurisdiction; the verdict might, however, be varied expressly to disclose this. The verdict returned had not been incompetent; it had simply not been properly recorded. The appropriate course was for the court to exercise its power under section 118(1)(b) of the 1995 Act.

Discussion

[8] Charge (1) of the indictment alleged, against the appellant and others, a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971. In the nature of things relevant actings of an accused so charged, while alleged to have occurred principally at specific named places, may also have occurred at other places. In such circumstances, and subject always to fair notice, it is legitimate to include words such as "and elsewhere" in the charge. That will allow evidence to be led of events occurring otherwise than in the specifically named places. In the event the jury may find the libel proved, against one or more accused, only in respect of a location or locations not specifically named. In these circumstances it would be proper to return in respect of the relative accused a verdict of guilty under deletion of the specifically named locations but with an explanation as to what place or places elsewhere their verdict related. That in substance is what the jury did in the present case. When asked by the clerk whether, in relation to their verdict of guilty in respect of the appellant, he had any amendments to the charge, the foreman did not purport to amend the libel but stated that "the verdict applies to 26th May at Bourtrees Farm services", later modified to "Bourtrees Farm Service Station". This was subsequently taken up by the trial judge with an enquiry as to whether the jury's verdict was "the equivalent of deleting any reference to the other places named in [charge (1)]". To this the foreman assented. This was in substance a verdict of guilty under deletion of the named locations but with an explanation that, within the ambit of the inspecific "elsewhere", they restricted their verdict to a particular location, namely Bourtrees Farm Service Station. Such elucidation of the verdict, provided it is given before the verdict is recorded, is a legitimate procedure (McGarry v HM Advocate). It involves no amendment of the libel at the instance of the jury. The Crown did not, as in Symmers v McFadyen, confine itself to particular named locations.

[9] Strictly the verdict should, in terms of form, have been recorded as one of guilty under deletion of the specific locations libelled and under explanation as to the place with respect to which the jury's verdict of guilty was returned. It might also usefully have identified that location as being within Scotland. In order to correct these technical infelicities we shall, in exercise of our powers under section 118(1)(b) of the 1995 Act, set aside the verdict of the trial court in respect of the appellant and substitute therefor a verdict of guilty of charge (1) on the indictment restricted to 26 May 2004, under deletion of the specifically named locations, and under explanation that "elsewhere" in that charge is restricted to Bourtrees Farm Service Station, near Kincardine Bridge, Scotland.

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Scottish High Court of Justiciary Decisons

Lord Justice General

Lady Paton

Lord Abernethy

[2008] HCJAC 1

Appeal No: XC269/06