APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lady Paton Lord Bonomy	[2009] HCJAC 15 Appeal No: XC77/04 OPINION OF LORD OSBORNE in NOTE OF APPEAL AGAINST CONVICTION by JACQUELINE AITON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead; Drummond Miller

Respondent: Mackay A.D.; Crown Agent

12 February 2010

The background circumstances

[1] On 23 December 2003 at a sitting of the High Court in Edinburgh, the appellant was convicted on charges (1) and (3) in the indictment which she faced, along with five co-accused, after trial. The terms of the charges on which the appellant was convicted were as follows:

"(1) Between 1 January 2002 and 4 April 2002, both dates inclusive, at Main Street, Muir Street, Broompark Road, Douglas Street, Ettrick Wynd, Carlowrie Avenue, Northway and Priestfield Street, all Blantyre, Connisborough Road, Auchinlea Road, Westerhouse Road, Kirknewton Street, Cockenzie Street, all Glasgow, on the M8 motorway between Easterhouse and Hamilton, Strathclyde Park, Mill Road and Holyrood Street, both Hamilton, Oldtown Road and Church Road, both Culloden, Inverness and on the M73, the A80 trunk road, the M80, the M9 and the A9 trunk road between Stirling and Dalwhinnie and elsewhere in Scotland, you ... JACQUELINE AITON ... were ... concerned in the supplying of a controlled drug, namely diamorphine, a Class A drug specified in Part I 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).

(3) Between 4 January 2002 and 4 April 2002, both dates inclusive, on the A80 northbound near to Condorrat, Cumbernauld and elsewhere in Scotland you JACQUELINE AITON ... 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 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)."

[2] The circumstances of the case, as described by the trial judge in her report to this court, were as follows. The appellant appeared for trial along with five other persons. Essentially, the Crown case was that they had all been involved in the supplying of very substantial quantities of heroin from the east end of Glasgow to Inverness, where a man named Alan Gordon appeared to be running a drug supplying operation. He was named as an accused person on the original indictment but had subsequently disappeared. A man named James Hynes, brother of the sixth-named accused, also appeared on the original indictment and had, at the time of the trial, disappeared. It may be that he has since been apprehended and prosecuted. The picture presented by the Crown was of both the Hynes brothers being heavily involved in the running of the supplying operation at the Glasgow end.

[3] In 2002, the appellant lived near Glamis but was observed by police, in the course of a drugs surveillance operation on 4 April 2002, driving her red Ford Escort motor car in Blantyre. Alan Gordon was dropped off in Main Street, Blantyre, by George Hynes, the sixth-named accused, and the appellant then picked him up and drove off. She was then seen to stop her car in Priestfield Street, Blantyre. Alan Gordon got out and walked back along the street towards Main Street. A white van being driven by James Stoddart, the fifth-named accused, pulled up and stopped in Priestfield Street, on the same side of the road as the appellant's car was parked, with the driver's door beside the pavement. Alan Gordon went to the driver's window and a package was handed to him by James Stoddart. He then returned to the appellant's car, following which they drove off. They were stopped by the police shortly after that, travelling northbound on the A80, just south of the Cumbernauld slip road. They were both asked to get out of the car. Alan Gordon dropped a package from his fleece as he was walking towards the police car. The car was subsequently searched. A large block of cannabis resin was found in the driver's door pocket and a set of scales was found under the driver's seat. The appellant denied that the cannabis was hers. As regards the scales, she said: "They're mine - so I'm not getting ripped off for my block". By "block", she meant cannabis resin. She denied any knowledge of the presence of heroin in the car. She said, at interview and in the course of evidence, that she had been having a day out with Alan Gordon. She had gone to visit him in Inverness, where he lived, whilst on her way to investigate the possibility of renting a house for herself and her children in the Highlands, somewhere in the vicinity of the Sound of Sleat. She had a friend in Glenelg who might have been able to help her to find accommodation. Her second son suffered from schizophrenia and she thought that the environment and the available treatment would be better for him there. The trial judge observes that it was hard to discern how, specifically, she thought that it would be better. She explained that she knew Alan Gordon, "a charismatic character", through her ex-husband, who had since died. Her ex-husband had been an heroin addict and she had left him some years earlier, to get away from that lifestyle. Alan Gordon had been her ex-husband's best friend.

[4] In the event, instead of travelling on to the Highlands as she had planned, the appellant was persuaded by Alan Gordon to have a day out with him, which involved going back south and across to Blantyre. The appellant asserted that she had had no knowledge of Alan Gordon collecting any package. She had thought that he had "gone for a pee" when he had got out of her car in Priestfield Street, Blantyre.

[5] The police found £1,550 in cash, in £20 notes, all from the Bank of Scotland, in the appellant's handbag. The appellant was, at the material time, unemployed and dependent on benefits totalling some £630 per month, together with occasional gifts from her mother. Her three young children were dependent on her. She denied that the money had anything to do with drug dealing. She asserted that it was money that she had saved together with money that she had borrowed from friends and neighbours. Such savings were not capable of being explained by reference to her bank statements. While she asserted that her mother gave her money from time to time, she identified those gifts as sums that had gone through her bank account. The trial judge observes that, in short, the appellant could not, it seemed, provide any satisfactory explanation for being in possession of such a substantial amount of cash. Her explanations for carrying such a large amount of cash were partly to the effect that it was to pay for a holiday for her children and partly that it was to pay a deposit of advance rental, if she secured the tenancy of a house in the Highlands. Her evidence on the matter of the money was not at all clear and appeared to the trial judge to be unconvincing.

[6] The package dropped by Alan Gordon was found to contain heroin, wrapped in six bags, each containing one ounce. The total value of his quantity, if split into "tenner bags" would have been about £24,000. The block of cannabis resin was found to weigh 193.3g and had a potential total value of about £1,000 if broken down into street deals.

The grounds of appeal

[7] The appellant has tabled a note of appeal under Section 110 of the Criminal Procedure (Scotland) Act 1995 in the following terms:

"(1) The trial judge misdirected the jury in relation to what the Crown required to establish to bring home guilt against the appellant. Reference is made to page 37 and 52 of the Charge. The directions given suggest that the jury could convict the appellant if all the Crown established was that she suspected or had reason to suspect that she was involved in an operation to supply the drugs specified in the charges.

(2) The directions given in relation to the meaning of a reasonable doubt were apt to confuse the jury into thinking that they required to apply a more exacting standard than was necessary. Reference is made to page 14.

(3) The appellant was convicted of charges 1 and 3. The jury made no deletions to the libel. Properly understood there was insufficient evidence to establish that the appellant was concerned in the supplying of the controlled drugs during the period and at all the loci specified. Separatim the trial judge should have directed the jury that if they were to convict the appellant of either charge the libel should be restricted in accordance with the evidence led. Accordingly there has been a miscarriage of justice."

Submissions for the appellant

[8] Counsel for the appellant began by outlining the circumstances, to which I have already referred. He emphasised that evidence had been led relating to the appellant in respect of a limited period of time. There had been a police surveillance operation. So far as the appellant was concerned, the focus of police attention upon her related to the date 4 April 2002, not the whole period of time referred to in charges (1) and (3). Furthermore, evidence against the appellant related only to certain locations fewer in number than those referred to, particularly in charge (1). That was the background to ground of appeal (3).

[9] Turning to the matter raised in ground of appeal (1), counsel drew attention to certain passages in the trial judge's charge to the jury, particularly those at pages 36 to 38 and 51 to 52 of the transcript. The trial in the present case had been held at a time between the dates of certain important decisions relating to the interpretation of sections 4(3)(b) and 28 of the Misuse of Drugs Act 1971. These were Salmon v HMA 1998 S.C.C.R. 740 and Henvey v HMA 2005 SCCR 282. Between these dates, the important case of R v Lambert [2002] 2 AC 545 had been decided on the same topic by the House of Lords. The decision in R v Lambert had been available at the time when the trial took place in the present case. The way in which the law had developed over this period related to the issue of the burden of proof where a defence was sought to be raised under section 28 of the 1971 Act. In Salmon v HMA it had been considered that, where a defence was raised under section 28 of the 1971 Act, the onus of proof of that defence lay upon the accused, as the terms of section 28 themselves suggested. However, it had been made clear in R v Lambert that that was not the case. In this connection counsel referred to paragraphs [6], [11], [12], [18] and [19] of the Opinion of the Court in Henvey v HMA delivered by the Lord Justice General.

[10] Turning to the particular circumstances of this case, it was evident that the trial judge had thought that there was a live issue in relation to the appellant under section 28 of the 1971 Act. It was in relation to that and the interaction between section 28 and section 4(3)(b) that the criticism identified in ground of appeal 1 had been formulated. There were several passages in the trial judge's charge relevant to this ground of appeal. First, at pages 33 to 34 she had endeavoured to explain the essential requirements of a case brought under section 4(3)(b) of the 1971 Act. The language used at page 34, lines 1 to 5 related to the degree of knowledge necessary. What had been said in that passage was uncertain and ambiguous; its significance could be seen in relation to later passages in the charge. The real problem emerged at pages 51 to 53 in the transcript of the charge. The vice which, it was submitted, existed in the charge arose out of the conflation at page 52 of the provisions of section 28 and the requirements of section 4(3)(b) of the 1971 Act. The problem was that what the trial judge had said suggested that a degree of knowledge, less than that actually required by the law, would be sufficient, if established by the Crown, to constitute the offence. In Salmon v HMA it was made clear that there could not be an offence under section 4(3)(b) of the 1971 Act without the accused person having a degree of knowledge. That knowledge related to being involved in a supply operation of something. That degree of knowledge was a recognised requirement in proof of an offence under section 4(3)(b). However, different issues arose in relation to section 28. Under section 28(3)(b) the defence would be established if it were shown that the accused "neither believed nor suspected nor had reason to suspect that the substance or product in question was a controlled drug". That related to a different state of mind from that involved in the proof of an offence under section 4(3)(b).

[11] Against that background, it was submitted that the trial judge had erred in her directions given at page 52 of the transcript of the charge in relation to the element of knowledge. In that passage the trial judge appeared to suggest that it was sufficient if the appellant knew, or suspected, or had reason to suspect that she was involved in the supply of a controlled drug. The effect of that direction was to define the offences in such a way as to reduce the element of knowledge that the Crown had to prove from knowledge of involvement in a supply operation to, at a minimum, having reason to suspect involvement in such a matter. The same problem arose in relation to what the trial judge had said at pages 36 to 37 of the transcript. These misdirections were of a material nature, involving as they did the fundamental definition of the crime charged. A miscarriage of justice had occurred.

[12] Turning to ground of appeal 2, counsel pointed out that it related to what had been said by the trial judge between pages 13 and 15 of the transcript of the charge. The passage in question related to the standard of proof which the Crown had to meet, that is to say proof beyond reasonable doubt. Quite simply the trial judge had departed from the well-tried formulation of such directions traditionally given. She had attempted to explain to the jury what was the nature of reasonable doubt, saying no less than three times that such a doubt was one based on "a cogent reason". The use of the word "cogent" made it more difficult than it would otherwise have been to argue that a reasonable doubt existed. This was a material misdirection which was favourable to the prosecution.

[13] Moving next to ground of appeal 3, counsel explained that the jury had made no deletions in reaching their verdict to convict. That was despite the fact the evidence available to the jury in relation to the appellant did not relate to any date other than 4 April 2002. While it was true that the trial judge had given certain directions relating to deletions to the jury, she had not directed them that they required to make deletions from the charges concerned where they were satisfied that there was no evidence to support a particular part of the charge. In this connection counsel referred to pages 27 to 28 and 57 of the transcript of the charge. He also relied on Barr v HMA 2005 SCCR 680. The jury should have been told that they had a duty to make deletions where the evidential situation required that. This matter was not merely a quibble, but was of significance in relation to any sentence ultimately selected. As regards charge (3), there should have been a restriction to the date 4 April 2002. As regards charge (1) the position was different; not only should the time period have been restricted, but also the range of loci.

[14] Having completed his submissions, counsel for the appellant pointed out that the decision in the case of McLean v HMA [2009] HCJAC 97 might have a bearing on the present case in regard to the circumstance that the appellant had been interviewed by the police under section 14 of the 1995 Act, without having had the benefit of her legal adviser present. A further ground of appeal relating to that matter had been formulated and was before the Court. Counsel said that his motion to have that ground received should simply be adjourned to an appropriate future date. Furthermore, there were certain further grounds of appeal relating to disclosure, which might or might not arise. In relation to them, it was not appropriate for the court to take any action at this time.

Submissions for the Crown

[15] The Advocate depute moved the court to refuse the appeal. He submitted that the trial judge had directed the jury correctly in accordance with the requirements of Salmon v HMA and Henvey v HMA. He referred, in particular, to the observations of the Lord Justice General in the former case at pages 756 to 757. In a case brought under section 4(3)(b) it was necessary for the Crown to establish that the accused knew that he was involved in supplying something. It also had to prove that the thing which he was concerned in supplying was the controlled drug libelled in the charge. Provided that the Crown established those elements they had done all that was required under section 4(3)(b). Looking at what the trial judge had said at page 34 of the transcript, the Advocate depute agreed that it might be thought to be ambiguous. Section 28 of the 1971 Act had been enacted as a protection for persons accused of offences, having regard to the rigorous provisions of the sections which actually created the offences. In that connection he referred to Henvey v HMA, paragraphs [11] and [12]. In the light of the modern law in relation to the onus of proof, if the Crown had proved the basic requirements for a conviction, if a section 28 defence was raised, the Crown then required to exclude that defence on the basis of proof beyond reasonable doubt. Appropriate directions required to be given relating to that matter. The Advocate depute submitted that the directions given by the trial

judge here were broadly in line with those rules. At pages 33 and 34 of the transcript, the trial judge had given the jury the essential ingredients for the offence under section 4(3)(b). Perhaps the words "a degree of knowledge as to what they were involved in" required some clarification. However that clarification was available at a later stage in the charge. What had been said at page 36 of the transcript was correct. That was also true of what had been said at page 37. Finally the passage examined at pages 51 to 52 of the transcript was not open to criticism. The directions as a whole did not amount to misdirection in the context of a case where a defence under section 28 had been raised. In any event, even if the directions given were inadequate, there was no miscarriage of justice.

[16] The Advocate depute then turned to consider ground of appeal 2. Even with the trial Judge's use of the word "cogent" which simply meant compelling, the directions were acceptable. In this connection the Advocate depute relied on Meyl v HMA 2005 S.C.C.R. 338. In that case the trial Judge had employed the words "good reason" in the context of an explanation of reasonable doubt. There had been no criticism of that terminology. There was no material difference between that and what had been said in the present case.

[17] Finally the Advocate depute went on to make submissions relating to ground of appeal 3. It was important to understand that, in the present case, police surveillance operations had commenced as early as 6 February 2002, although not of this appellant. It was accepted that the evidence relating to this appellant was focused only upon the events of 4 April 2002. However there was a bigger picture in the background. There was evidence of involvement with other persons who had been part of that bigger picture, in particular Mr Gordon. It was a matter for the jury to decide what deletions, if any, they might make, in the event of their reaching a verdict of guilty. The presence of a set of scales under the driver's seat in the appellant's car demonstrated involvement over a period of time longer than 4 April 2002. Furthermore, the money which was found in her possession could be considered to relate to prior transactions. It had been indicated to the jury by the trial judge at page 57 of the transcript of the charge that the jury could delete parts of a charge, if convicting. As regards the other matters raised by counsel for the appellant, the Crown had no objection to the continuation of the motions made on behalf of the appellant relating to other grounds of appeal and a possible appeal to the Supreme Court.

Conclusions

[18] Considering first the appellant's ground of appeal 1, it is necessary to notice certain passages in the trial judge's charge where she explains the nature of the offence created by section 4(3)(b) of the 1971 Act. The first such passage is at pages 33 to 34 of the transcript. There she said this:

"Well, firstly, the Crown have to prove that the accused was in fact concerned in supplying something. The Crown must prove that the accused were involved in an act of supply of some sort.

Secondly, the Crown have to prove that the thing that the accused was concerned in supplying was the controlled drug that is mentioned in the charges - the heroin in charge 1, the cannabis in charge 3.

Thirdly, for the Crown to prove that an accused person was concerned in the supply of drugs it must be established that he or she had a degree of knowledge as to what they were involved in."

In my opinion, no issue can be taken with the first two parts of this direction. However, it appears to me that, in the third part, it is unclear exactly what the trial judge is saying. While I recognise that the words "a degree of knowledge" may reflect what was said by Lord Justice General Rodger in Salmon v HMA at page 756F to G, as it seems to me, the problem arises in relation to the following words "as to what they were involved in". It is not clear from that passage whether the trial judge is referring to a supply operation or to the kind of knowledge which the Crown could require to bring home to an accused who had raised an issue of knowledge in terms of section 28. However, in my opinion, this particular part of the charge would not involve misdirection if the issue of knowledge had been clarified appropriately elsewhere. At pages 36 to 37, the trial judge returns to that issue, saying this:

"You then, ladies and gentlemen, have to consider what happens where, as here, accused persons respond to the Crown by saying that even if it is proved that they were in fact involved in supplying of controlled drugs, there is still the issue of whether or not it has been proved that each of them knew that what they were involved in was the supply of controlled drugs.

Well, the Misuse of Drugs Act allows for this. It is always open to an accused person to raise the nature of his knowledge as an issue. He does not commit the crime of being concerned in the supply of drugs if he genuinely didn't know nor suspect nor had reason to suspect, that that was what he was involved in. So when the issue is raised as here, you have to consider it. And if, having done so, you are not satisfied beyond reasonable doubt that the accused knew or suspected or had reason to suspect that what he or she was involved in was the supply of controlled drugs, then you must acquit any accused in respect of whom you are not so satisfied. To put it another way, you can only convict if you are satisfied beyond reasonable doubt that the Crown have proved that the accused in question was in fact concerned in the supply of a controlled drug, and that where it has been raised, the line of defence that he or she didn't know or suspect, or have reason to suspect that that was what he or she was involved in, is without foundation."

It seems to me that, in this latter passage, the trial judge is giving to the jury an explanation of the operation of section 28 of the 1971 Act, which she assumed had a potential application to the case, as appears from what is said at p. 36, lines 22 to 25 of the transcript. However, what is said thereafter goes beyond the matters dealt with by section 28(3)(b), which provides, so far as relevant here:

"... (b) shall be acquitted thereof -
(i) if he proves that he neither believed nor suspected nor had reason to suspect that the substance or product in question was a controlled drug; ...".

The words used in the charge at page 37, lines 5 to 12, as the object of what the accused "knew or suspected, or had reason to suspect" were "that what he or she was involved in was the supply of controlled drugs ...". The inclusion of a reference to supply there, in my view, involves a conflation of the requirement of the knowledge necessary for being concerned in supply with the different requirements for the operation of section 28(3)(b), to which I refer later.

[19] The third and final part of the trial judge's charge in which these matters are dealt with is to be found at pages 51 and 52 of the transcript. This latter passage appears to be in the nature of a summary of what had previously been said. It is in the following terms:

"Then, ladies and gentlemen, what you are going to have to do is look at all the evidence that you accept together, and decide whether, as the Crown submit you should, you can draw the inference the Advocate depute invites you to draw - deciding, to put it another way, whether when considering the evidence as a whole, you are satisfied beyond reasonable doubt that each of the accused was concerned in the supply of heroin, as alleged in charge 1, and whether the fourth accused was also concerned in the supply of cannabis, as alleged in charge 3, always bearing in mind the three stage test I told you about a moment ago: Firstly, was there involvement in the supply chain; secondly, was it controlled drugs that were the subject of supply; and thirdly, did the accused know, suspect, or have reason to suspect that they were involved in the supply of controlled drugs?"

[20] In this passage, the trial judge may be endeavouring to assist the jury by summarising what she had previously said concerning the law applicable to the charges in question. In the third part of this summary, the trial judge deals with the matter of knowledge, stating that the issue was "did the accused know, suspect or have reason to suspect that they were involved in the supply of controlled drugs?" In my opinion, in this important part of the trial judge's directions, which amounts to the trial judge's last word on the subject to the jury, she conflates two separate issues, first, the issue of whether the appellant had the actual knowledge necessary in any case brought under section 4(3)(b) of being involved in a supply operation, and second, the issue which she assumed had been raised by the appellant under section 28(3)(b) of the 1971 Act.

[21] The requirement as to the knowledge first mentioned was dealt with by Lord Justice General Rodger, as he then was, in Salmon v HMA at pages 756, 757 and 759. Having considered the situation of a bus driver, who was unaware that an individual had concealed controlled drugs in a secret compartment on the bus which was then driven from one place to another, at pages 756 and 757, he said this:

"When the bus, driven by the driver, carries the Ecstasy tablets from A to B, that may be a vital part of the mechanism by which they are supplied to the person who collects them. None the less, since he is quite unaware that his bus is carrying the drugs, the driver cannot be said to be 'concerned in' supplying them.

But, just as with possession, so also in section 4(3) cases the question arises as to the degree of knowledge which the Crown must establish. In my view, by a parallel train of reasoning to that which applies in section 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 section 4(3)(b). The accused will then be convicted unless he can establish one of the defences in section 28."

[22] The Lord Justice General expressed the same view in different but rather more elaborate language at page 759:

"In this kind of case [a case under section 4(3)(b) of the 1971 Act] the judge should direct the jury that they must first consider whether, having considered all the evidence, they are satisfied beyond reasonable doubt that the accused knew that on the occasion in question he was involved in carrying the package containing the tablets which were proved to be Ecstasy, from point A to point B where they were to be picked up. If the jury are not so satisfied beyond reasonable doubt, then they must acquit the accused since the Crown will have failed to prove that he was concerned in supplying the items in question. If, however, they are satisfied beyond a reasonable doubt that the accused was concerned in supplying the tablets on the occasion in question, they must go on to consider whether, on all the evidence, they are satisfied on the balance of probabilities, that the accused neither knew nor suspected nor had reason to suspect that the tablets comprised Ecstasy rather than an (uncontrolled) lifestyle drug. If they are so satisfied, they must acquit the accused; if they are not so satisfied, they must convict him."

[23] In the light of the decisions subsequent to Salmon v HMA relating to the onus and standard of proof where a defence under section 28 of the 1971 Act is raised, the observations in the last two sentences of this passage must be seen as qualified by those decisions. However what is said in the earlier part of the passage continues to possess force.

[24] In my opinion, it is evident from these observations of the Lord Justice General as a whole that what the Crown must establish, in the first instance, distinctly, as regards knowledge on the part of an accused, is that he knew that he was involved in a supply operation. Only thereafter and as a separate matter might issues of knowledge or suspicion arise in relation to a section 28 defence. As I see it, the problem in relation to what was said particularly at page 52 in the transcript of the charge, but also at pages 36 to 37, is that these separate issues relating to knowledge were conflated in a way which was likely to have misled the jury. In particular, the language used suggests that something less than actual knowledge of involvement in a supply operation would be a sufficient basis for a conviction under section 4(3)(b). While there is reference to the accused knowing of involvement in such operation, the direction extends further to suspicion or the having of a reason for suspicion to that effect. In a context in which what is being discussed is an ingredient of the offence created by section 4(3)(b), in my opinion that cannot be a correct direction. Furthermore, to the extent that it departs from what would be a correct direction, in which the requirement of actual knowledge of involvement in a supply operation was explained, the misdirection would render the task of the Crown as regards proof less burdensome than it would have been if a correct direction had been given.

[25] Having considered what was said at page 34 and 36 to 37 of the transcript, I am not persuaded that anything there cures the problem which I perceive. The reference at page 34 to "a degree of knowledge" plainly does not assist. Nor do I think that what was said at pages 36 to 37 of the transcript obviates the problem; indeed, as I have explained, the same conflation is to be found there. It is unfortunate that, no doubt with the admirable aim of presenting the law to the jury in a simple and comprehensible manner, the trial judge has so far departed from the requirements of the statute, as it has been interpreted, that the result is misdirection. In a context in which a provision such as section 4(3)(b) creates an offence and section 28 provides for a statutory defence, particularly in relation to knowledge, it appears to me crucial that, in a case where an issue is raised under section 28(3)(b), both of these statutory provisions should be explained to the jury by reference to the words of the statute, as they have been interpreted, distinctly and separately and not conflated as has happened in this case. Only thus can the jury be given a correct understanding of the law and a risk of confusion avoided.

[26] Having regard to the importance of there being put before the jury correct directions as to the nature of the offence and the statutory defence available to it, I am driven to conclude that the misdirection which has occurred in this case is of a material nature. Thus, in my opinion, it amounts to a miscarriage of justice. Having reached that conclusion, I would move your Ladyship and your Lordship to quash the appellant's convictions on charges (1) and (3) on the indictment, after the Crown have been given the opportunity to consider whether they wish to seek authority for a fresh prosecution under section 118(1)(c) of the 1995 Act. Upon that basis, I find it unnecessary to express an opinion on the issues raised in grounds of appeal 2 and 3. However, having had the opportunity of reading Lord Bonomy's Opinion in draft, I would agree with his observations on those matters. The motions for adjournment of certain motions referred to by counsel for the appellant would appear now to be unnecessary.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lady Paton Lord Bonomy	[2010] HCJAC 15 Appeal No: XC77/04 OPINION OF LADY PATON in NOTE OF APPEAL AGAINST CONVICTION by JACQUELINE AITON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead; Drummond Miller

Respondent: Mackay, A.D; Crown Agent

12 February 2010

[27] For the reasons given by my Lord in the chair, I agree that the First Ground of Appeal must be sustained, and that it is unnecessary to consider the remaining grounds. The appellant's position was a simple denial of any involvement in a supplying operation, and ignorance of any drugs contained in the car or discarded by her companion Alan Gordon. On that basis, it was unnecessary in her case for the jury to consider the terms and effect of section 28 of the Misuse of Drugs Act 1971. However it was necessary that the jury had a clear direction that it was for the Crown to prove that the appellant knew that she was involved in an operation the objective of which was the supplying of a material or substance to another or others: section 4(3)(b) of the 1971 Act; Salmon v HM Advocate 1999 JC 67, 1998 SCCR 740. Such a direction does not emerge clearly from the charge. As a result, it is possible that the jury reached their verdict against the appellant by applying a lesser test than that set by the 1971 Act: for example, the jury may not have been satisfied that the appellant knew that she was involved in a supplying operation, but may have been satisfied that she had reason to suspect that she was involved in such an operation. A conviction on that basis would, in my view, be unsound. For that reason, I am persuaded that a miscarriage of justice has occurred, and that the conviction in respect of charges 1 and 3 of the indictment must be quashed.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lady Paton Lord Bonomy	[2010] HCJAC 15 Appeal No: XC77/04 OPINION OF LORD BONOMY in NOTE OF APPEAL AGAINST CONVICTION by JACQUELINE AITON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead; Drummond Miller

Respondent: Mackay A.D.; Crown Agent

12 February 2010

Section 28 of the Misuse of Drugs Act 1971

[28] When this court in Salmon v HMA 1999 JC 67, 1998 SCCR 740 provided a detailed analysis of the relationship between the terms of sections 4, 5, 6 and 9 of the Misuse of Drugs Act 1971 relating to drug offences and the terms of section 28 providing for certain defences to charges under these sections, the court made it clear that whether section 28 comes into play at all in a case depends on the evidence at the trial. Indeed in both Salmon and the case of Moore dealt with at the same hearing the court decided that no issue under section 28 actually arose at the trial. Directions founded on that section were therefore unnecessary.

[29] At that time section 28 was interpreted as placing an onus on the accused to establish a defence under the section on a balance of probabilities. Subsequently, in R v Lambert [2001] UKHL 37, [2002] 2 AC 545, [2001] 3 WLR 206, [2001] 3 All ER 577, [2001] 2 Cr App R 511 and in Henvey v HMA
[2005] HCJAC 10, 2005 SCCR 282 it was settled that Article 6 of the European Convention on Human Rights required the provisions of section 28 to be "read down" so as to place only an evidential, and not a persuasive, burden on the accused.

[30] The net effect of these cases is that in a charge of being concerned in the supply of a controlled drug under Section 4(3)(b) of the Misuse of Drugs Act 1971 the Crown will ordinarily require, depending on the circumstances, to establish either three or four things. In all cases the Crown must prove: (1)  that the accused was involved in some capacity in an operation that had as its objective the supply of something; (2)  that the "something" was a controlled drug; and (3)  that the accused was aware of the operation. Proof of knowledge that a controlled drug was involved is not necessary. These are the basic requirements for conviction. However, if there is placed in issue in the course of the trial any question which arises under section 28(2) or (3), then as a fourth requirement the Crown must exclude that defence beyond reasonable doubt.

[31] It is useful at this point to consider the exact terms of section 28. They are as follows:

     "(1)  This section applies to offences under any of the following provisions of this Act, that is to say section 4(2) and (3), section 5(2) and (3), section 6(2) and section 9.

     (2)  Subject to subsection (3) below, in any proceedings for an offence in 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.

     (3)  Where in any proceedings for an offence to which this section applies it is necessary, if the accused is to be convicted of the offence charged, for the prosecution to prove that some substance or product involved in the alleged offence was the controlled drug which the prosecution alleges it to have been, and it is proved that the substance or product in question was that controlled drug, the accused-

     (a)  shall not be acquitted of the offence charged by reason only of proving that he neither knew nor suspected nor had reason to suspect that the substance or product in question was the particular controlled drug alleged; but

    (b)  shall be acquitted thereof-

     (i)  if he proves that he neither believed nor suspected nor had reason to suspect that the substance or product in question was a controlled drug; or

     (ii)  if he proves that he believed the substance or product in question to be a controlled drug, or a controlled drug of a description, such that, if it had in fact been that controlled drug or a controlled drug of that description, he would not at the material time have been committing any offence to which this section applies."

     (4)  Nothing in this section shall prejudice any defence which it is open to a person charged with an offence to which this section applies to raise apart from this section."

On the foregoing analysis it follows that, where section 28(2) is engaged, the trial judge will require to give two separate directions in relation to knowledge. In the first place the judge should direct the jury that knowledge of the existence of a supply operation is required. Later in the charge the judge should also direct the jury to consider the defence that the accused neither knew of nor suspected nor had reason to suspect (whatever), and direct the jury that they must be satisfied that the Crown have excluded all three of these elements beyond reasonable doubt.

[32] I am grateful to your Lordship in the chair for a full narrative of the facts and a summary of the submissions of counsel which I shall repeat only so far as necessary to the expression of my opinion.

Mens Rea for Contravention of Section 4(3)(b) of the Misuse of Drugs Act 1971

[33] On ground of appeal one, the first question that arises is whether section 28 was engaged at all. The core of the evidence against the appellant, who faced two charges of contravening section 4(3)(b) in relation to heroin and cannabis respectively, was a surveillance operation on 4 April 2002 ending with the car that she was driving with Alan Gordon beside her in the passenger seat being stopped and searched. She was initially spotted picking up Gordon in Blantyre when he was dropped off by one of her co-accused. She was then seen to stop the car at another point in Blantyre where Gordon got out and collected a package from a further co-accused who had stopped his van nearby. When the police later stopped her vehicle, the appellant and Gordon were asked to get out. Gordon dropped a package from his fleece as he was walking towards the police car. A search of the appellant's car revealed a large block of cannabis resin in the driver's door pocket and a set of scales under the driver's seat. The appellant denied that the cannabis was hers. As regards the scales, she said:

"They're mine - so I'm not getting ripped off for my block."

By "block", she meant cannabis resin. She denied any knowledge of the presence of heroin in the car. At interview and in evidence she said that she was simply having a day out in the company of Gordon whom she knew. She asserted that she had no knowledge of Gordon collecting any package and thought that he had "gone for a pee" when he got out of the car. Her handbag contained £1,550 in cash in £20 notes all from the Bank of Scotland. At the time the appellant was unemployed and dependent on DSS benefits totalling £630 per month together with occasional gifts from her mother. She had three dependent young children. She denied that the money was anything to do with drug dealing. The trial judge commented in her report that the appellant could not, it seemed, provide any satisfactory explanation for being in possession of such a substantial amount of cash. The value of the heroin in "tenner bags" was about £24,000. The block of cannabis resin was worth about £1,000 in "street deals".

[34] While the appellant denied that the cannabis was hers, there was no question of her denying knowledge that it was a controlled drug. So far as the heroin was concerned, she denied any knowledge of it or the package in which it was contained. Her defence was essentially that she had no connection with any operation that had as its objective the supply of something and that she did not know of such an operation. These are two of the three basic elements that the Crown have to prove as outlined above. She also said that she had no connection with either the cannabis or the heroin. However, in my opinion that raised no matter falling under Section 28, but was simply an element related to the absence of any connection with a supply operation and any knowledge thereof. Section 28(2) relates to the accused neither knowing of, nor suspecting nor having reason to suspect the existence of some fact which it is necessary for the prosecution to prove. While the existence of a supply operation is a fact that the appellant had to be shown to have knowledge of, it is clear from Salmon that section 28(2) does not arise in relation to knowledge of the existence of a supply operation. As a matter of logic it just cannot arise. The Crown are bound to prove as a basic requirement for guilt that there was such an operation and that the accused was aware of it. The sort of issue to which section 28(2) is directed is, for example, knowledge of the existence of the substance which turns out to be a controlled drug. Where an accused thinks he is dealing with an illegal substance of a different nature, for example counterfeit videos or money rather than powder, then section 28(2) would apply. Nor does any question under section 28(3) arise. That subsection is engaged only when there is some issue over the knowledge of the nature of the substance, rather than knowledge of the substance itself which would fall under section 28(2).

[35] So I am driven to the same conclusion as in the cases of Salmon and Moore that section 28 was not engaged in the appellant's trial. Any directions that suggested it was were, therefore, misdirections. Counsel for the appellant maintained that the effect of these directions was to create in the minds of jurors the notion that proof falling short of knowledge of a supply operation was all that was required in relation to the appellant's state of mind. That submission has required particularly detailed consideration, since the trial judge gave a number of directions on the issue, some of which might actually be seen to be unduly favourable to the appellant, and the Crown case against the appellant appears to have been a strong one. In the end I have come to the conclusion that there is a substantial risk that jurors were misled into thinking that a lower standard was sufficient.

[36] The first and principal direction given on the matter was at page 33 in these terms:

"So what does the Crown have to prove in connection with the charge in which it is alleged - or the charges in this case - in which it is alleged that accused persons contravened Section 4 (3)(b) by being concerned in the supply of controlled drugs? Well, firstly, the Crown have to prove that the accused was in fact concerned in supplying something. The Crown have to prove that the accused were involved in an act of supply of some sort.

Secondly, the Crown have to prove that the thing that the accused was concerned in supplying was the controlled drug that is mentioned in the charges - the heroin in charge 1, the cannabis in charge 3.

Thirdly, for the Crown to prove that an accused person was concerned in the supply of drugs it must be established that he or she had a degree of knowledge as to what they were involved in."

The only criticism advanced before us of that passage was the reference to "a degree of knowledge" insofar as it might be interpreted as indicating something falling short of actual knowledge, in particular the elements of suspecting or having reason to suspect referred to in section 28(2) and (3)(b)(i). The expression "degree of knowledge" is taken from the opinion of the Lord Justice General (Rodger) in Salmon including at page 756F. However, there the Lord Justice General used the expression to refer to what an accused must know rather than the quality of that knowledge. It is knowledge of the supply operation rather than the involvement of a controlled drug that arises at that stage.

[37] The trial judge then proceeded to set out the case for the appellant in the following terms:

"Now, in this case the fourth accused accepts that she was driving a car in which a dealer quantity of cannabis was found, in which there was a passenger who dropped a substantial quantity of heroin when the police were escorting him away from the car, and in which there was found a set of scales of the type that is used to weigh drugs. She doesn't seem to dispute that, as a matter of fact, the car she was driving was being used to transport controlled drugs. However, her position is that she wasn't aware of the presence of the drugs in dealer quantities in the car, and so wasn't aware of being involved in any drugs supplying operation on 4^th April 2002. So that is the fourth accused's position."

The final words in that passage conflate the two elements of knowledge that can arise in drug trafficking cases, namely knowledge of a supply operation, one of the basic requirements, and absence of knowledge of, suspicion of, or reason to suspect, the involvement of a controlled drug, the defence in section 28(2). I say section 28(2) because the trial judge referred to knowledge and not belief, the language of section 28(3)(b)(i), but I recognise that she may also have had that subsection in mind. In any event she went on to deal with the matter at pages 36 and 37 of the charge in this way:

"You then, Ladies and Gentlemen, have to consider what happens where, as here, accused persons respond to the Crown by saying that even if it is proved that they were in fact involved in supplying of controlled drugs, there is still the issue of whether or not it has been proved that each of them knew that what they were involved in was the supply of controlled drugs.

Well, the Misuse of Drugs Act allows for this. It is always open to an accused person to raise the nature of his knowledge as an issue. He doesn't commit the crime of being concerned in the supply of drugs if he genuinely didn't know nor suspect, nor had reason to suspect, that that was what he was involved in. So when the issue is raised, as here, you have to consider it. And if, having done so, you are not satisfied beyond reasonable doubt that the accused knew or suspected, or had reason to suspect that what he or she was involved in was the supply of controlled drugs, then you must acquit any accused person in respect of whom you are not so satisfied. To put it another way, you can only convict if you are satisfied beyond reasonable doubt that the Crown have proved that the accused in question was in fact concerned in the supply of a controlled drug, and that where it has been raised, the line of defence that he or she didn't know or suspect, or have reason to suspect that that was what he or she was involved in, is without foundation."

The apparent conflation of the two elements continues throughout that passage. Knowledge that the supply operation involved a controlled drug is not required. It is only if a question arises over the nature of the substance or product involved that the Crown obligation to exclude knowledge, suspicion and reason to suspect arises. However, there was in the case relating to the appellant no issue over what was in the package or what the nature of the block in the driver's door was. The appellant's position was simply that she had no knowledge of the presence of the package containing heroin and that the cannabis was not hers. These defences did not engage section 28 in the circumstances of this case. There was thus no need to direct the jury on section 28.

[38] Having said that, it does not follow from the fact that a particular direction may have been unnecessary that it amounted to a material misdirection prejudicial to the appellant. Indeed the fact that the trial judge interpreted the defence as falling within section 28(2) meant in theory that the jury would be directed that they had to be satisfied that the Crown had excluded beyond reasonable doubt the absence of knowledge and suspicion and reason to suspect that controlled drugs were involved. Unfortunately that additional test was not put in that way by the trial judge in her charge. The trial judge put it first in this way:

"And if, having done so, you are not satisfied beyond reasonable doubt that the accused knew or suspected, or had reason to suspect that what he or she was involved in was the supply of controlled drugs, then you must acquit any accused in respect of whom you are not so satisfied"

Read in isolation that passage could give the impression that simply having reason to suspect that what she was involved in was the supply of controlled drugs would entitle the jury to convict her. However the judge went on to say:

"To put it another way, you can only convict if you are satisfied beyond reasonable doubt that the Crown have proved that the accused in question was in fact concerned in the supply of a controlled drug, and that where it has been raised, the line of defence that he or she didn't know or suspect, or have reason to suspect that that was what he or she was involved in, is without foundation."

Had these been her final words on the matter it might have been possible to conclude that the direction based on section 28(2), albeit unnecessary, was not misleading. That passage makes it clear that the issue is whether the Crown have excluded beyond reasonable doubt the contention that an accused did not know or suspect or have reason to suspect that controlled drugs were involved. To put it the other way around as in the earlier part of that passage could mislead a jury.

[39] Unfortunately these were not the final words on the matter. In summarising how the jury might address the evidence at page 51 of her charge the trial judge said this:

"Then, Ladies and Gentlemen, what you are going to have to do is look at all the evidence that you accept together, and decide whether, as the Crown submit you should, you can draw the inference the Advocate Depute invites you to draw - deciding, to put it another way, whether when considering the evidence as a whole, you are satisfied beyond reasonable doubt that each of the accused was concerned in the supply of heroin, as alleged in charge 1, and whether the fourth accused was also concerned in the supply of cannabis, as alleged in charge 3, always bearing in mind the 3-stage test I told you about a moment ago: firstly, was there involvement in the supply chain; secondly, was it controlled drugs that were the subject of supply; and, thirdly, did the accused know, suspect, or have reason to suspect that they were involved in the supply of controlled drugs?"

It is my opinion that, even allowing for the fact that reference to section 28(2) was in itself unduly favourable to the appellant, this final reference to the degree of knowledge required, which is confined to the issues raised in section 28(2) and omits specific reference to the requirement of knowledge of involvement in a supply operation was, when read along with the earlier directions on these issues, particularly that at page 37 where the matter was put in two rather different ways, amounted to a material misdirection of such significance that the convictions following thereon must be regarded as a miscarriage of justice.

Directions on Reasonable Doubt

[40] Ground of appeal two relates to the trial judge's directions on reasonable doubt. The trial judge referred to the two very familiar ways of explaining reasonable doubt, firstly, that it is "the sort of doubt that would make you hesitate in respect of an important decision you have to make in your own life", and secondly that it is a doubt based on "reason". However, rather than simply referring to "reason", the trial judge referred to "cogent reason". Her directions at page 13 were in these terms:

"Thirdly, the standard of proof the Crown must meet is what we call proof beyond reasonable doubt. If, having heard the whole of the evidence, you are left with a reasonable doubt as to whether or [not] the Crown have proved the guilt of the accused then you must acquit.

Now, the test, Ladies and Gentlemen, is one of reasonable doubt. This doesn't mean a far-fetched or fanciful doubt. It means what it says, a real doubt, a doubt based on a cogent reason rather than one based on sympathy, prejudice, emotion or impulse.

We do sometimes say it is the sort of doubt that would make you hesitate in respect of an important decision you have to make in your own life. And that is simply because for most of us it would take a doubt based on a cogent reason to prevent us from taking an important step which otherwise we might want to take. But the important point, Ladies and Gentlemen, is that it is only a reasonable doubt if it does have such a basis. If you are the sort of person who would be influenced in making a decision in your own lives on any other basis - whether it be your nose, your instinct [or] your gut reaction - then forget the analogy, because it is not helpful, and simply remember that we are talking about a doubt that is based on a cogent reason.

It is not a question of certainty, Ladies and Gentlemen. You don't have to be sure in the sense of being certain. You have to be, as we say, satisfied beyond reasonable doubt. And that is the key question that each of you have to have constantly in mind, the question of whether, after considering all the evidence, you are left with a reasonable doubt as to the guilt of the accused. If so then you must give the benefit of that doubt to him or her and acquit him or her. If, on the other hand, you are not left in any reasonable doubt as to guilt, then your duty would be to return a verdict of guilty."

On three occasions she used the expression "cogent reason".

[41] In contending that these directions were apt to confuse the jury into thinking that they required to apply a more exacting standard, counsel acknowledged that it was always a matter of context and that the directions should be read as a whole to determine their impact. He did not seek to suggest that, simply because "cogent" can mean "compelling", "persuasive", or "convincing", it must be read as directing a higher standard. Bearing in mind that "cogent" can also mean "clear and logical", its meaning does depend on context. The context in these directions was distinguishing a reasonable doubt from a far fetched, fanciful or impulsive doubt or a gut reaction or a sympathetic, prejudicial or emotional response. Having made that distinction clear, the trial judge proceeded to repeat the obligation to acquit if the jury were left with a reasonable doubt. In these circumstances I do not consider that there was a risk that the jury were misled into applying a standard higher than reasonable doubt as this court has traditionally defined it.

[42] Having said that, danger undoubtedly lurks whenever, in the area of general directions, the well trodden path is left, and in other circumstances the use of "cogent" could be confusing and give rise to the risk of the application of the wrong standard.

Deletions or Restrictions in Verdict

[43] Ground of appeal three does not challenge the conviction of the accused but the fact that on each charge the conviction related to the whole period between 1 January and 4 April 2002 and to all loci referred to in each of the charges. The first contention was that there was insufficient evidence of concern on any occasion other than 4 April and at any location other than those involved that day. The second contention was that the trial judge had given the jury inadequate directions in relation to deletions from, or restrictions of, the libel in returning their verdict. Under reference to Barr v HMA
[2005] HCJAC 95, 2005 SCCR 680 counsel submitted that the period of the libel was, so far as the appellant was concerned, an arbitrary period with no connection to the evidence relating to her. In addition he criticised the trial judge for confining her directions about modifying the libel in any verdict of guilty to restricting the periods in the charges. Counsel contended that these directions were inadequate. Counsel acknowledged that some evidence recovered on 4 April, mainly the money and the scales, could be said to be indicative of earlier concern, but pointed out that the Crown sought to attribute the money to concern in the supplying of heroin rather than the cannabis, which simply underlined the need for fuller directions.

[44] The Advocate depute in response founded upon what was said at pages 45 and 48 of the charge about evidence relating to 6 February and 3 April. In particular he pointed to evidence of the involvement of Gordon with the sixth accused on 6 February and other to-ings and fro-ings involving the fifth and sixth accused on 3 April. However, neither there nor in the trial judge's report is there any reference to any involvement of the appellant on either date. So the evidence that could implicate her in relation to an earlier period was confined to the money and the scales supplemented by clear evidence from her of her friendship with Gordon extending beyond the period of the libel.

[45] I agree with the Advocate depute that the case of Barr is distinguishable from the present case on its facts. In that case a search of the appellant's house had found powder that could have been used as a cutting agent and three sets of electronic scales, together with two bags of cocaine the quantities in which were not recognised sale quantities. The basis for the determination by the court that any conviction must in these circumstances be confined to the day of the search was stated at page 685D by the Lord Justice Clerk (Gill) in these terms:

"But in our view the Crown are not entitled, on the basis of evidence of the accused's involvement in the supply of drugs on a specific date, to libel an arbitrary period leading up to that date and to invite the jury to infer that if on that date the accused was concerned in the supply of the drug libelled, he must have been concerned in the supply of it during an earlier period. Furthermore, we know of no yardstick by which the appropriateness of such a period could be judged. If the preceding three months was an appropriate period, why not 6 months, or for that matter 6 years? Since it is admitted that there is no evidence that on any earlier date the appellant was in possession of cocaine or of any of the paraphernalia found on 16 April 2002, we consider that the jury were entitled to convict him in relation to that date only. In our opinion, the Trial Judge should have directed the jury to that effect."

[46] However, the situation in Barr may be contrasted with that in Santini v HMA 2000 SCCR 726, a case to which the court in Barr referred. There the appellant was convicted of being concerned in the supply of heroin between December 1996 and 26 June 1997. The charge followed a police raid on the flat of a co-accused on 26 June 1997 when a quantity of heroin with a street value of over £1,000,000 was recovered. The appellant had first been seen in this flat on 23 June 1997 in the company of another co-accused, McCall, who pleaded guilty in the course of the trial. When the police entered the flat on 26 June the appellant had been handling heroin. There was evidence that he had visited Amsterdam with McCall about a week before the raid and also evidence of the finding of over £17,000 in the appellant's house. In response to an appeal on the same point the Crown intimated at the hearing that they were conceding that the appellant's conviction should be restricted to 23 and 26 June 1997. The court refused to accept that concession and refused the appeal. In explaining the court's reason on this particular point the Lord Justice General (Rodger), delivering the Opinion of the court which included Lord Gill, said this at paragraph 12:

"[12] The argument that the conviction should have been confined to the appellant being concerned in supplying on 23 and 26 June 1997 only is, of course, inconsistent with the appellant's position at trial - which was that he was not concerned in supplying on either day. But, more significantly, it appears to us that such a verdict would have been entirely irrational. Neither Mr Henderson nor the Advocate depute was able to suggest what kind of involvement in the operation would have taken place on those occasions only. Rather, as the Trial Judge points out, we start with the appellant and McCall arriving together, along with a blue plastic bag which is found in the flat, at the scene of a huge drug-trafficking operation. They both use mobile telephones. The operation in the flat must have marked the culmination of a scheme carried out over some time. If the appellant was present and was dealing with the drugs on that occasion, then the jury were entitled to infer that he must have been involved in the operation at an earlier stage - the idea that he was only involved on some sort of casual basis on this occasion and on one other occasion makes no kind of sense. The inference drawn by the jury could be supported by the appellant's presence in the flat along with McCall two nights before but also by his relationship with McCall who was in turn involved with others in drug dealing over the preceding months. In that overall context the jury would also have been fully entitled to put a sinister interpretation on the cash found in the appellant's house and on the trip which he and McCall made to Amsterdam, just over a week before the police raid uncovered the drugs on 26 June. When all these various strands of evidence were put together, they fully justified the jury in returning the verdict which they did."

[47] In my opinion the evidence in the present case fell somewhere between the circumstances of Barr and Santini. The evidence of the scales, the money and the appellant's relationship with Gordon and Gordon's other drug trafficking activities would have entitled the jury to conclude that the appellant must have been involved over a period longer than simply one day. A starting point of 6 February would have been justified on the evidence.

[48] However, bearing in mind that the evidence justifying such an inference was fairly limited and that the main element was an unexplained quantity of cash which could have been attributed to either heroin or cannabis resin, it was necessary for the trial judge to give clear directions about the need for the jury to be satisfied beyond reasonable doubt that the appellant's concern must have extended over an earlier period and to loci other than the places through which the car travelled on 4 April. The latter point arises only in relation to charge 1 where a lengthy list of specific loci was libelled in contrast to charge 3 where the loci libelled were simply the point where the car was stopped and "elsewhere in Scotland". In charge 1 specific loci in Glasgow and Hamilton about which there was no evidence at the trial were listed. The trial judge gives no indication of what evidence implicated the appellant in relation to these loci.

[49] The trial judge dealt with the matter in her charge at page 27 in these terms:

"Now, I can tell you, Ladies and Gentlemen, that the Crown in terms of the statute are entitled to take a latitude of three months if they want, and that is what they have done in these charges. They have done it to say "when you look at all the evidence it is a reasonable inference that the accused were involved in these activities over a period that is wider than the dates specified, and the three-month period is not unreasonable.

Now, at the end of the day, Ladies and Gentlemen, it is entirely a matter for you. If you got to the stage that you wanted to restrict the period on any of the charges, it would be open to you to do that. You may remember, for instance, that that is what happened with the three accused who pled guilty at the end of the Crown case, pleas were accepted to periods that were less than the period specified in these charges. As I say, it is entirely a matter for you what you do about it if you are convicting. I will remind you about that when I tell you about the verdicts that are open to you later on."

She then returned to the matter at the end of her charge at page 57 in these terms:

"I remind you, Ladies and Gentlemen, that you must return a separate verdict in respect of each accused, and a separate verdict for each charge; and that you can, as I have said to you, if you think it appropriate, restrict the periods in the charges. You don't have to do so. It is a matter for you, but it is an option that is available to you."

[50] In my opinion these directions, which commence with an inaccurate indication that three months is routinely a period that the Crown are "entitled" to select and do not thereafter make it clear that the jury must be satisfied beyond reasonable doubt of the concern of the appellant throughout the period covered by any verdict, amount to a material misdirection. There is every possibility that the jury properly directed would have returned a more discriminating verdict. However there is no doubt that they would have convicted the appellant of concern in the supplying of both drugs on 4 April 2002. Had that been the only basis on which the Court were to interfere with the verdict of the jury it would have been appropriate to quash the verdict recorded and substitute a verdict in identical terms but confined to 4 April 2002.

Conclusion

[51] In light of my opinion on ground of appeal one, I agree that the court should follow the course proposed by your Lordship in the chair.