Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 75

XC277/13

Lord Eassie

Lord Drummond Young

Lady Clark of Calton

OPINION OF THE COURT

delivered by LORD DRUMMOND YOUNG

in

APPEAL AGAINST CONVICTION

by

GRAHAM CARROLL

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  McCluskey;  K W Law, Livingston

Respondent:  Fairley QC AD;  Crown Agent

 

21 August 2015

[1]        The appellant was convicted after trial of two charges under section 4(3)(b) of the Misuse of Drugs Act 1971.  These were that between 28 May 2010 and 18 August 2010 at certain addresses in Livingston he was concerned in the supplying of two compounds of a type specified in paragraph 1(aa) of Part II of Schedule 2 to that Act:  first pentylone, a cathinone derivative and class B drug, and secondly methylmethcathinone, commonly known as mephedrone, also a class B drug.  The appellant has appealed against that conviction on nine separate grounds, which we will consider individually.

[2]        The two drugs in question, which are commonly known as pentylone and mephedrone, are examples of so-called designer drugs.  Both are produced by chemists, principally in China.  The chemists are skilled in making small adjustments to the chemical composition of well-known illegal drugs such as cannabis or ecstasy.  The intention is to replicate the effects of the illegal drugs but to avoid the legal prohibitions against them which are in force in many parts of the world.  The two drugs mentioned in the charges were legal in the United Kingdom until 16 April 2010, but on that date the Misuse of Drugs Act 1971 (Amendment) Order 2010 (SI No 1207/2010) came into effect.  This amended the Misuse of Drugs Act 1971 in such a way as to render being concerned in the supplying of those drugs illegal.  Both drugs are now classified as class B drugs.  Both are derived from cathinone, commonly known as khat, which is widely consumed in parts of the Middle East and North Africa by chewing the leaves of the plant that produces it.  The plant also grows in China.  Chemists there modify the molecular structure of the stimulant in order to produce artificial drugs in such a way that the effect on the user is enhanced.  Pentylone and methylmethcathinone (or mephedrone)are examples of such drugs.

[3]        The evidence disclosed that during 2009 the appellant, who had run various enterprises over the years, set up a further business importing methylmethcathinone from China and selling it in West Lothian.  The business was successful, and the drugs were purchased in bulk quantities.  These were divided into retail quantities which were sold over the internet or by telephone or text orders, with delivery through the post or by direct delivery.  The drugs were sold as “plant food” and always contained warnings that they should not be consumed.  The turnover was on occasion as high as £10,000 to £15,000 per week.  The appellant gave evidence that he only supplied methylmethcathinone, but the drugs discovered during the ensuring police operation were alleged to include pentylone as well as methylmethcathinone.  Both drugs are white crystalline substances of similar appearance.  The appellant further stated in evidence that he ceased supplying methylmethcathinone when it became illegal, but the trial sheriff notes that the jury clearly did not believe him.

[4]        One of the vans that the appellant had used while the drugs were legal was stopped by the police for unrelated reasons on 28 May 2010.  The two occupants were in possession, either personally or in the van, of powders containing a quantity of pentylone.  What the sheriff describes as drugs paraphernalia were also recovered from the van.  Shortly thereafter the appellant fell out of favour with his girlfriend, and on about 30 May 2010 she telephoned the police and suggested that he might be in possession of controlled drugs.  The police traced him to an industrial unit in Livingston from which he ran a kitchen business, and found him in possession of substantial quantities of both pentylone and methylmethcathinone.  Paraphernalia and cash were also recovered.  On 1 June 2010 the appellant’s girlfriend took his car to the police and allowed them to search her house, where she and the appellant lived together.  Quantities of drugs of both types were again recovered from the car and house.  Paraphernalia and cash were also recovered.  Further recoveries were made of drugs connected with the appellant;  some were contained in tubs on which material containing DNA matching the appellant’s DNA profile was found and in packaging material marked with the name of the appellant’s kitchen company.  The total value of the drugs recovered was approximately £17,000 on a wholesale basis and £35,000 on a retail basis.

[5]        At the trial evidence was led of the above events, and also from two Crown experts and one defence expert as to the nature of the drugs recovered.  The two Crown experts, Sarah Murphy and Adele Lange, were both chemists from the police forensic laboratory.  The defence expert, Dr Robert Anderson, was a highly qualified and experienced forensic toxicologist.  Their evidence is summarized below in relation to the first ground of appeal.

 

1.         Insufficient evidence on charge 1 relating to pentylone
[6]        The presiding sheriff rejected a submission of no case to answer made under section 97A of the Criminal Procedure (Scotland) Act 1995 in relation to the first charge on the indictment.  The submission was made after the leading of all of the evidence, for Crown and defence, and accordingly all of the evidence in the case is relevant to it.  The submission was that there was insufficient evidence to prove that the drug in question was in fact pentylone;  consequently there was insufficient evidence in law to justify a conviction on the first charge.  In essence, the argument was that it would be possible to have a compound whose molecules contained exactly the same atoms as pentylone but which was a different isomer; that is to say, although the atoms were the same, the structure in which they were arranged was different.  The other possible isomers were not eliminated by the process of testing used in the police laboratory, and consequently it was impossible to be certain that the drug tested was pentylone.

[7]        Pentylone is defined in the Misuse of Drugs Act as amended by the 2010 Order as a compound structurally derived from 2-amino-1-phenyl-1-propanone by substitution in the phenyl ring with an alkylenedioxy substituent, at the nitrogen atom with an alkyl substituent and by substitution at the 3-position with an alkyl substituent.  A compound similar to pentylone could exist with an alkyl substituent at the 3-position and another at the 2 position.  That compound was illegal, but it was not the compound libelled in the first charge.  Yet another compound could exist with different alkyl substituents: two substituents at the 2-position and none at the 3-position.  That compound, 2-methylmethylone, was not illegal.  Neither of these compounds could be distinguished from pentylone using the equipment available to the police forensic laboratory; that was accepted by all of the witnesses.  In order to distinguish the two other possible isomers, it was necessary to make use of nuclear magnetic resonance by means of equipment that was not available in the laboratory.

[8]        Both of the Crown experts, Sarah Murphy and Adele Lange, gave evidence and spoke to reports which expressed the opinion that the substance recovered was pentylone.  They similarly identified the second substance that had been found as methylmethcathinone.  Miss Murphy accepted that an isomer with a different molecular structure could theoretically exist, and that she could not exclude that compound on the basis of the tests that she had used in the laboratory.  A nuclear magnetic resonance scanner would be required to achieve that result.  She stated, however, that in the laboratory she had run sufficient tests to be confident that she could report the compound as pentylone.  She further indicated that, while another compound was theoretically possible, no standard existed for that compound because it had never been made.  (A standard is a sample of the pure substance against which the substance recovered from a suspect can be compared).  Neither of the Crown witnesses had ever encountered either of the two alternative compounds, although Miss Murphy accepted that she had only encountered pentylone on one other occasion.

[9]        The defence expert, Dr Robert Anderson, described the two alternative isomers and spoke to the possibility that they could exist.  He stated, however, that he had never come across either of them as a matter of practice.  It was chemically possible to make them, but they were only theoretical, and he doubted whether anyone had ever actually made them.  Dr Anderson’s laboratory did not have standards for the two alternative compounds, and such standards could not be purchased as the isomers were not produced commercially.  To obtain a standard the laboratory would have to make it themselves, and that had not been done.  The isomers could probably not be distinguished from pentylone using the chromatography and mass spectrometry techniques found in police laboratories; no reference standard materials were available to allow the distinction to be made.

[10]      On the basis of the foregoing evidence we are of opinion that there was sufficient evidence in law for the sheriff to reject the submission of no case to answer.  While all three experts accepted that the two isomers could exist in theory, none of them had ever encountered those compounds in practice.  There was doubt as to whether the isomers had ever in fact been manufactured, and it was accepted that standards for them could not be purchased; the latter fact tends to suggest that they had not been manufactured, at least on any regular basis.  The standard of proof is of course proof beyond reasonable doubt; certainty is not required.  In relation to the identification of drugs, it has been established that lay identification of the drugs is sufficient to permit a case to go to the jury:  McCallum v McKay, 1997 SCCR 558; Main v PF Cupar, Appeal No 2 788/97; Carswell v HM Advocate, 2009 JC 59.  That is a clear indication that mathematical certainty, or even decisive scientific proof, is not essential.  While lay identification might not be sufficient in the case of designer drugs, the evidence available in the present case goes well beyond that.   On the basis of the evidence summarized above, we are of opinion that, while the existence of alternative isomers cannot be eliminated with absolute certainty, the evidence was sufficient to permit the case to go to the jury.  On the basis of that evidence, if it were accepted by a jury, the jury would be entitled to conclude that it had been established beyond reasonable doubt that the substance recovered was pentylone.

 

2.         Verdict on charge 1 was one that no reasonable jury could have returned
[11]      It was further submitted that on the evidence led the verdict on charge 1 was one that no reasonable jury, properly directed, could have returned.  That, it is said, amounted to a miscarriage of justice in terms of section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995.  The relevant evidence is that summarized above in relation to the first ground of appeal.  The submission for the appellant paralleled the submission on ground 1.  Essentially, there existed the possibility that the drug recovered was an isomer of pentylone which either was not a controlled drug or was not the particular compound libelled in the indictment; the expert witnesses were unable to be sure that the drug analyzed by them was pentylone.  The equipment used by the Crown experts was incapable of detecting the difference between pentylone and the other possible compounds.

[12]      In our opinion this submission must be rejected.  For the reasons stated in paragraph [10] we are of opinion that sufficient evidence was led to permit a jury to conclude beyond reasonable doubt that the drug recovered was pentylone.  The jury were properly directed.  The sheriff gave the jury specific directions on how to approach the evidence of the three expert witnesses.  He gave particular directions about pentylone.  After referring to the evidence-in-chief of the two Crown experts, he referred to the questioning in cross-examination to the effect that chemicals with a slightly different formula might be produced that would fall outwith the legal definition of pentylone but could not be distinguished from pentylone with the level of equipment available to the Crown experts.  He emphasized that both experts accepted at the end of their cross-examination that they could not be sure that the drug that they had identified in the report as pentylone was in fact pentylone.  He also referred to the fact that the Crown experts had accepted that the other isomers could exist.  The sheriff referred to the evidence of Dr Anderson, with particular reference to the possible existence of isomers.  The sheriff summed up Dr Anderson’s evidence by stating that he had not considered the Crown evidence to be conclusive; the only way to identify pentylone would be through use of a scanner.  The sheriff concluded his directions relating to the expert evidence by stating that whether the substance was pentylone or not was absolutely crucial to the Crown case; consequently the jury must apply the test of proof beyond reasonable doubt to it.  The jury should consider the expert evidence and apply that test.  If they had a reasonable doubt that the powders identified by the Crown experts as pentylone were not pentylone, they should fall from the picture.

[13]      Thus the jury were given careful directions on the expert evidence.  It must be assumed that they followed those directions in the absence of proof to the contrary.  In our opinion it was open to the jury on the evidence led to conclude that the substance recovered had been identified beyond reasonable doubt as pentylone.  The expert witnesses had all accepted the theoretical possibility that other isomers might exist, but none of the experts had been able to state that those isomers had ever in reality been produced.  Moreover, to achieve the standard of proof beyond reasonable doubt, it is not necessary to exclude a mere possibility, particularly a theoretical possibility, that something might happen.  In reaching this conclusion we have had regard to the criteria set out in Gage v HM Advocate, 2012 SCCR 254, at paragraphs [29]-[32].  The court is required to make a judgment on the evidence and assess the reasonableness of the verdict.  That assessment requires that the court ask whether jurors properly instructed and acting judicially could reasonably have come to the same result, but must do so “through the lens of judicial experience”, which provides an additional protection against an improper conviction.  We have considered the evidence of the three expert witnesses, and it is on that basis that we have concluded that a reasonable jury might properly conclude that identification as pentylone had been proved beyond reasonable doubt.

 

3.         Insufficient evidence on charge 2 relating to methylmethcathinone
[14]      The sheriff rejected a submission made on behalf of the appellant under section 97A of the 1995 Act in relation to charge 2 on the indictment.  The submission was to the effect that there was no evidence of the quantity of methylmethcathinone that had been found, as it was mixed with pentylone and other substances.  Had the sheriff upheld the submission on ground 1 to the effect that the Crown had failed to prove the presence of Pentylone in the quantities of powder recovered, the submission in relation to methylmethcathinone would have followed; in that event the quantity of methylmethcathinone, on this hypothesis the only controlled drug in the material recovered, was not known, and therefore it could not be said that there was evidence of a sufficient quantity of the controlled drug to permit the conclusion that the appellant was concerned in the supplying of that drug.  The only specific evidence relating to methylmethcathinone had come from a detective sergeant, who spoke to the quantities of the materials containing each of the two drugs found on the appellant’s person, and expressed the opinion that those were not quantities consistent with personal use and would indicate concern in the supplying of the drugs.

[15]      The submission under section 97A relating to methylmethcathinone was made to the sheriff on the basis that it depended on the success of the submission on charge 1.  We have rejected the submission on charge 1, and accordingly the submission on charge 2 must also fail.  In any event, we are of opinion that it was not necessary for the Crown to prove the quantity of powder within the materials containing the mixed drugs that consisted of methylmethcathinone.  Pentylone and methylmethcathinone, both in powder form, were mixed, and it was an obvious inference that they would be sold in that form.  Thus the substance applied would be the mixed powder.  On the evidence the quantity of mixed powder recovered was indicative of supplying.  That means that methylmethcathinone would have been supplied, even if the percentage of it in the mixed powder was limited.  The Detective Sergeant had given evidence about the manner in which illegal drugs are commonly “cut” or bulked up with other legal or illegal substances; it is apparent that that is what happened in the present case.  For the foregoing reasons this ground of appeal must be rejected.

 

4.         Verdict on charge 2 was one that no reasonable jury could have returned
[16]      Counsel for the appellant further submitted that the jury’s verdict on charge 2 was one that no reasonable jury, properly directed, could have returned.  The arguments in support of this submission were dependent on the proposition that there was insufficient evidence to prove the supplying of methylmethcathinone on the basis that the quantity of that drug recovered had not been established.  For the reasons set out in paragraph [15] above, we are of opinion that the submission must be rejected.  Where controlled drugs in powder form are mixed, it is the total quantity recovered that yields an inference of being concerned in supplying, on the basis that a jury may properly conclude that it is the mixed powder that will be supplied.

 

5.         Alleged misdirection in relation to expert evidence
[17]      It was further submitted on behalf of the appellant that the sheriff had not given proper directions to the jury in respect of the expert evidence.  It was contended that he should have reminded them that special caution was required when expert evidence was vital to the prosecution.  In the present case proof that the drug in charge 1 was pentylone was critical to the prosecution.  The Crown experts had extremely limited experience in relation to pentylone, and both stated in cross-examination that they could not be sure that the drug recovered was pentylone.  That is said to have resulted in a miscarriage of justice.  Reference was made in particular to the decisions in Liehne v HM Advocate, 2011 SCCR 419, and Hainey v HM Advocate, 2013 SCCR 309.

[18]      In our opinion this submission must be rejected.  As noted above, the sheriff gave general directions on the approach to expert evidence, and referred in particular to the uncertainties accepted by the Crown experts.  He directed the jury to consider whether the experts were sufficiently qualified to give opinions on which a conclusion might be reached.  He summarized the critical issues that had to be decided according to the expert evidence.  The issues involved were relatively simple.  This is an obvious point of distinction from both Liehne v HM Advocate and Hainey v HM Advocate;  in those cases the expert medical evidence related to extremely complex issues, and the evidence of the individual experts was in sharp conflict on important matters.  In the present case, by comparison, the differences between the experts were much less marked; in particular, the Crown experts accepted the fundamental point made by Dr Anderson, that compounds other than pentylone could exist and would not be detected by the tests that they had used.

[19]      The expression “special caution” in relation to expert evidence appears to originate in the English case of R v Henderson, [2010] 2 Cr App R 24, and was quoted in Liehne at paragraph [48]:  it is there stated that, in cases where developing medical science is relevant, the jury should be reminded that special caution is needed where expert opinion evidence is fundamental to the prosecution.  That is no doubt correct so far as it goes.  Nevertheless, we consider that too much emphasis should not be placed on the notion that science is “developing”; the jury must reach a decision on the current state of scientific knowledge, and to consider how matters might develop in future is mere speculation.  The most that can be said is that, if rapid developments have taken place, the certainty of current knowledge is perhaps lessened.  Nevertheless, these considerations do not appear to us to have any bearing on the present case, which is concerned with established theoretical organic chemistry and where the uncertainty relates to the extent to which that theory has been put into practice.  That is a wholly different matter.  In the present case we can find no misdirection.

 

7.         Alleged misdirection relating to statement by appellant
[20]      For the appellant it was argued that the sheriff had misdirected the jury in relation to a statement made by the appellant to a police sergeant when he said “I have obviously pissed off the guys who are selling mephedrone”.  The sheriff directed the jury that that was a comment that could be interpreted as pointing either to guilt or innocence.  Counsel for the appellant submitted that the remark was entirely exculpatory, and consequently that the direction was erroneous.  In our opinion this submission cannot be supported.  It seems clear to us that the statement could be interpreted as either exculpatory, as it indicated that the appellant had been involved in selling “legal highs”, or incriminatory, if it indicated that he had encroached on the business of those selling illegal drugs such as mephedrone by selling such drugs himself.  It was for the jury to consider those possible interpretations.

 

8.         Alleged misdirection relating to evidence from the appellant’s former girlfriend
[21]      It is argued that the sheriff misdirected the jury in relation to the evidence of the appellant’s former girlfriend, who had told the police about drugs in their home and in the appellant’s car.  The appellant’s position was that she had made false statements and had fabricated physical evidence, by planting controlled drugs in the house and car, in order to have the appellant detained by the police.  Her position in evidence was that she had been reporting what the appellant had done.  It was accordingly important for the jury to decide whether the former girlfriend’s evidence was true or false;  but even in the former event it would appear that she had given information about him to the police for her own purposes.  In attempting to explain this matter, the sheriff made the following statement:

“One useful thing that is to be taken from [a Crown witness’s] evidence is the street shorthand; I still find it’s easier if you use street shorthand or colloquial expressions for what people get up to.  A very crucial issue in this case is whether this was a grassing or framing, and these are the words that he used.  If it was a grassing, then the accused would probably largely be guilty, and if it was a framing, he wasn’t.  That may well be a useful way of putting it”.

 

That passage was criticized by counsel for the appellant.  He submitted that the word “grass”, a slang term for an informer, did not indicate that the informer was necessarily telling the truth.  The issue for the jury was not whether the witness was “grassing”, but rather to consider the whole of the evidence with a view to deciding whether the Crown had proved its case beyond reasonable doubt; the evidence of the appellant’s former girlfriend could not be of decisive significance.  Furthermore, the expression “the accused would probably largely be guilty” was criticized as tending to indicate that the sheriff believed that the appellant was guilty if the jury accepted his former girlfriend’s evidence.

[22]      The sheriff explained that he used the expressions “grassing” and “framing” for two reasons.  First, as a hearing progresses it becomes possible to label an event by reference to an easily remembered trigger name.  The other feature is that it is easier for a jury to understand matters if they can be encapsulated and discussed in a few words.  The issue here was whether the appellant’s girlfriend had planted the drugs and paraphernalia, which could be neatly characterized as a “framing”, or whether she had simply provided the police with information to uncover what was happening anyway, which could be neatly characterized as a “grassing”.  He accepted that the use of the words “probably largely be guilty” was not ideal.

[23]      We agree that the use of the expression “the accused would probably largely be guilty” was not ideal.  Nevertheless, we have come to the view that the passage has not led to a miscarriage of justice.  First, the jury were given careful directions on the main issues that they had to consider.  In particular, they were directed that it was for them to decide what had and had not been proved.  They were instructed to consider all the evidence, much of which was reviewed, and about the importance of corroboration.  They were carefully directed about the burden of proof and the importance of having no reasonable doubt about the appellant’s guilt.  In this connection, the sheriff gave the jury standard directions as to what reasonable doubt means, and the need for an acquittal if anything that the appellant said or any other matter should raise a reasonable doubt that he committed the crimes libelled.  The appellant had a special defence that the crimes were committed by other named persons, and the sheriff gave a proper direction on that issue.  These matters were largely repeated towards the end of the charge.  In that situation we are of opinion that the jury would not have been misled by the expression “the accused would probably largely be guilty” to think that there was any presumption of guilt on the appellant’s part if they accepted the evidence of his former girlfriend.

[24]      Secondly, the direction to consider the whole of the evidence and the review of the important evidence would counter any suggestion that the question of whether or not they believed the former girlfriend should be decisive in any way, beyond the truth or otherwise of her evidence.  Thirdly, the passage complained of occurred as part of the sheriff’s review of the evidence of the former girlfriend and a friend of hers (that being the individual who had used the expressions “framing” and “grassing”).  That placed it in context.  In our opinion this is important; the context would make it clear that the passage related only to whether or not the jury believed the former girlfriend’s account of events.  A reasonable juror would not in our view conclude that this issue was in any way determinative of the whole case, but merely related to one of a number of chapters of evidence.  For these reasons we consider that the passage complained of would not have led to a miscarriage of justice, and that accordingly this ground of appeal must be rejected

 

9.         Alleged misdirection in relation to labelling on packaging
[25]      During the jury’s deliberations they returned to court to ask a question regarding labelling on a production that consisted of packaging from DFK, a company linked to the appellant.  The sheriff records the question as follows:

“The 2x tubs of powder found [at a specified address], were these tubs found in an envelope/jiffy bag with DFK address on it? Silver bag”.

 

There followed a series of production numbers.  The sheriff states that he called the parties’ representatives into his chambers and asked for submissions, and heard further submissions in court thereafter.  Counsel for the appellant submitted that this was a very specific point, and that to provide further detail beyond the general directions that had already been given could result in the jury’s replacing their recollection with the sheriff’s.  It was not in dispute that the correct answer to the question was in the affirmative, and counsel for the appellant submitted that if the sheriff answered the question the jury would attach particular importance to that piece of evidence.  The sheriff decided to answer the question.  He preceded his answer with a reminder that the facts were a matter for the jury and their recollection was what counted.  He then referred to what he had said in his charge about the evidence leading to the recovery of the tubs.  Thereafter he stated that, according to his recollection, in relation to the production comprising the tubs a police witness had recognized his signature on the label and stated, reading from the label, that the tubs were removed from within packaging addressed to DFK Supplies Ltd.  The sheriff concluded with two further remarks.  First, what he had said was his recollection, and if it were wrong it was up to the jury.  Secondly, he reminded the jury that in reaching their decision they had to take all of the evidence into account and think about the issue of reasonable doubt.  The jury returned a verdict after a further 40 minutes.

[26]      Counsel for the appellant submitted that the evidence about the packaging was important because the address where the tubs were found was linked to another man but the company DFK Supplies Ltd was linked to the appellant.  The jury obviously had some doubt in their recollection of the evidence, and it was not the function of the presiding sheriff to provide the jury with his own recollection.  That was said to amount to a miscarriage of justice.

[27]      In our opinion this ground of appeal must be rejected.  First, it is significant that the question indicates that the jury, collectively, recalled the relevant passage in the evidence, and some of them at least must have recalled that there was a link with DFK Supplies Ltd.  Secondly, what the sheriff said was factually correct and admitted to be such.  Thirdly, the sheriff’s response was preceded and followed by reminders that it was the jury’s recollection that counted, and was followed by a reminder that all of the evidence had to be taken into account and that the issue of reasonable doubt must be considered.  In these circumstances we consider that there was no miscarriage of justice; the jury were given correct information with warnings that it was their recollection that mattered.

 

10.       Alleged misdirection relating to drug supply paraphernalia
[28]      Towards the end of his charge the sheriff directed the jury about a visit that the police had made to the appellant’s house at the end of the investigation.  He said:

“There was a lot of what you might describe as drug supply paraphernalia found.  [The appellant] said that these had been used before 16^th of April in his legal business so, again, that’s a matter for you”.

 

16 April 2010 was the date when pentylone and methylmethcathinone became illegal.  Counsel for the appellant submitted that this amounted to a misdirection because in the context of this episode it was for the jury to decide whether the items found were drugs paraphernalia and not for the sheriff to tell them that they were drugs paraphernalia.  The expression used was incriminative and that was said to have prejudiced the appellant.

[29]      The sheriff in his report states that the jury had heard at length from a police witness, a detective sergeant with wide experience in drugs cases; he took the jury through the items found at various loci and explained why some items were indicative of drug supply or illegal drug supply and some were not.  The word paraphernalia had not been used previously in the trial, but at that stage the sheriff thought that it was an easy shorthand way of informing the jury that a lot of the items that had been described as indicative of or consistent with drug supply were found.  The critical issue was not whether they were indicative of or consistent with drug supply but whether that drug supply was illegal, and that was apparent from the last sentence of the quoted passage.

[30]      We are of opinion that this ground of appeal must be rejected.  The passage complained of makes it clear that the appellant’s position was that he had supplied legal drugs prior to 16 April 2010, and that the existence of equipment for dividing or weighing the drugs was referable to that legal conduct.  On that basis the use of the expression “drug supply paraphernalia” was neutral; the appellant admitted that he had supplied drugs, but claimed that he had done so when they were legal.  The existence of drug supply paraphernalia was entirely consistent with that defence.  For that reason there has been no miscarriage of justice.

 

Conclusion
[31]      For the foregoing reasons we will refuse the appeal on the merits, but will proceed to hear counsel for the appellant on the question of sentence.