IN THE CAUSE PF ALLOA AGAINST C

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SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT ALLOA

 

 

 

2015SCALLOA9

 

NOTE

 

by

 

SHERIFF K. J. MCGOWAN

 

in the cause

 

PF ALLOA

 

v

 

C

 

Introduction

 

• [1]In this case, the accused (“C”) was charged with possession of illicit drugs with intent to supply. He admitted possession, but denied intent to supply.
• [2]The underlying facts of the case were largely agreed.

  Facts

• [3]The police attended at C’s home in October 2013 to execute a search warrant. C was asked if he had any drugs and he admitted having some “hash”. Two separate amounts of cannabis were found. The first amount weighed a total of just under 3.5ozs (96 grams) and was in three pieces: Crown Label 1. The second much smaller amount was found along with a grinder.
• [4]A mobile phone was found but contained nothing incriminating. No scales or packaging were found. A moderate amount of cash was found.
• [5]When C was interviewed, he admitted buying the cannabis. He said he had purchased it for £70.00. He asserted that it was for his own use.

  The expert testimony

• [6]The Crown led evidence from a Detective Constable Kevin Plank. He had 14 years police service. After 8 years’ service, he had been in the Drugs Unit for three years. For the last three years he had served as a STOP officer.
• [7]He had attended courses across the UK about drugs. He had received training from the only licensed producer of cannabis in the UK.
• [8]He said the Crown Labe1 1 was cannabis resin from Morocco. It was known as “soapbar” because of shape of the bars when supplied. A bar was 9 oz. The drug was the cheapest and most common type of resin. It typically had a low potency level containing 2- 4% THC. It was of low quality and popular in the Forth Valley.
• [9]The lowest price it could be obtained for would be £5.00 per gram. The prices for larger amounts would be thus:

  1/8^th oz/3.5g

  ¼ oz/7g

   

  ½ oz/14 g

  1oz/28 g

  1.5 oz/42g

  £10

  £20

  £40

  £80

  £100

   

• [10]The amounts set out above are “recognised deals” i.e. amounts commonly sold. A user buying an amount of 3.5 ozs would not buy it subdivided as it had been found in this case, but instead in one piece.
• [11]It would cost about £230/240 to buy 96 grams. That would be the absolute minimum.
• [12]96 grams is a significant amount of resin. Most regular recreational users would consume 1 – 2 grams per day. Each joint normally contained about 0.1 – 0.25 grams of resin. A joint with 0.25 grams in it was potent. Users would struggle to smoke more than 10 joints per day each containing 0.1 grams. The amount found in C’s house would represent 3 months’ supply at that rate of consumption.
• [13]C’s assertion that he had paid £70 for the resin found in his house could not be true. The true value was three or four times more than that. The subdivision of the resin in Crown Label 1 was also indicative of supply as a user would not buy it in that condition.
• [14]DC Plank thought it unlikely that the resin might have been already subdivided when purchased by C, though he accepted that that was possible.
• [15]Asked about his sources of information, DC Plank said that he spoke to persons who were in custody in relation to drugs related offences and during searches which he assisted on. He had spoken to one or two such people in the last month. He also saw analyses of phone messages from mobile phones recovered from drug dealers. These often contained information about drug deals and prices. He had reviewed data from five or six phones in the last month.

   

  Defence expert

• [16]William Percy is a retired police officer. He had served in the Drug Squad, the Crime Unit and the Scottish Crime Squad. He had concentrated on drug related work, including working with Customs and Excise.He had retired in 2001 and been engaged as an expert consultant in drugs since. He kept up to date by reading hundreds of reports each year (including STOP reports). He was a member of Drugscope, a large charity which maintained a very large database. He was a member of the Scottish Drugs Forum.
• [17]There was not a great market now for the type of resin in Crown Label 1. Homegrown cannabis was more popular and had 15 – 20% THC.This had depressed the price of resin.
• [18]This type of resin had a lot of impurities in it was not very potent – less than 5%.
• [19]Crown Label 1 could be Moroccan “soapbar” and would be worth about £100. A complete soapbar (9oz) could be purchased for about £180. It might be possible to buy the amount in this case for £70 though that would be on the low side.
• [20]Normally purchasers would by resin in one lump but it would depend what the dealer had available.
• [21]A grinder had no bearing on supply- it is for a user.
• [22]It was difficult to say how much resin would be used in a day. A user could easily get through a couple of grams per day.
• [23]The highest price for a complete soapbar would be £220 – less if the resin is of poor quality.
• [24]The presence of a grinder did not rule out dealing.
• [25]1 - 2 grams per day was not heavy use.

  The issue

• [26]The issue in dispute was whether the evidence supported the inference that C had possession of the resin with intent to supply.
• [27]The Crown relied on the facts which were not in dispute and the testimony of DC Plank as to (i) the condition of the resin in Crown Label 1 (ii) the value of it and (iii) the amounts typically consumed on a daily basis by users.
• [28]If I accepted that evidence, then (i) was indicative of C preparing the resin for onward supply; (ii) showed that C had (a) lied about how much he had spent and (b) had invested a substantial sum, especially for somebody living on State Benefits, in the purchase of resin; and (iii) had a supply far in excess of what he would use personally over any reasonable period of time.
• [29]The defence asked me to prefer the evidence of Mr Perry on points (i), (ii) and (iii) and to find that the Crown had not proved possession with intent to supply beyond reasonable doubt.

  Discussion

• [30]The Court’s role in relation to the admission and evaluation of expert testimony has been the subject of discussion in a number of cases over the past few years. See, for example, McCreight v HM Advocate, [2009] HCJAC 69; Hainey v HM Advocate 2013 SLT 525; and Young v HMA [2013] HCJAC 145; 2014 SLT 21 (HCJ).
• [31]The matter has also been the subject of analysis by The Law Commission: see Expert Evidence in Criminal Proceedings in England and Wales (LAW COM No. 325).
• [32]The Scottish cases mentioned above have emphasised the Court’s role in relation to admissibility. In a summary trial, the issue of admissibility might not arise sharply, particularly if (as here) no objection is taken to an expert’s testimony being led. Furthermore, even if an objection is taken, it may be necessary to hear the expert testimony either in the form of a “trial within a trial” or under reservation so that the issue of admissibility can be assessed properly.
• [33]However it arises, the point remains that if expert testimony does not meet a certain qualitative threshold, it should be discounted by the fact finder.
• [34]In particular, I had in mind what was said by the Court in Young at paragraph 54.I also found the flow chart at page 145 of Expert Evidence in Criminal Proceedings in England and Wales and Part 1 of the Schedule to the draft Bill annexed to that report to be of assistance.
• [35]I accepted that the issues about the purchasing and consumption habits of cannabis users and the “market price” of cannabis resin the Forth Valley area were matters which were (i) outside the Court’s experience and knowledge and (ii) germane to the matter at issue in this case.
• [36]I accepted that DC Plank had extensive experience of the illicit drugs scene in Scotland. I did not form the impression that he was biased.
• [37]However, when it came to the quality or reliability of his evidence, I had some concerns.
• [38]Firstly, it was apparent that much of his evidence was hearsay. Given the subject matter, that is not surprising and that fact alone (that the evidence was hearsay) does not necessarily mean by itself that his evidence about the purchasing and consumption habits of cannabis users and the “market price” of cannabis resin in the Forth Valley area should be treated as inadmissible or unreliable. But no evidence was led as to who (specifically) he had spoken to - he merely said that he had spoken to “one or two people in the last month” and that he had seen the results of five or six telephone analyses.
• [39]The problem with the foregoing is this: DC Plank was being asked to express an opinion about the market value of cannabis resin. But to be relevant to this case, that must mean something like “the market value of low quality Moroccan ‘soapbar’ in the Forth Valley area in the latter part of 2013”.
• [40]DC Plank did not tell me who he had spoken to (dealers? users?); he did not say what he had asked them or what - specifically - they had said. DC Plank also said that he had read reports. These were not specified or produced. I was not told what they said; who compiled them; or where the data in them came from.
• [41]I am doubtful if the work which DC Plank has undertaken into the market price of cannabis can properly be described as a recognised and developed academic discipline: Young.
• [42]In short, I had no proper, detailed information about the data on which DC Plank based his opinion (quantity, source) nor about how that data had been gathered.Such information as I did have did not convince me that the data he was relying on had been gathered in anything approaching a scientific way or was of sufficient quantity to provide a statistically valid opinion.
• [43]I was not told if the other “reports” referred to had been reviewed by others with relevant experience. I was concerned that reference was made to reports from which conclusions were being drawn, but which were not lodged as productions.
• [44]In all the circumstances, I concluded that DC Plank’s opinion evidence was not of sufficient reliability or quality to be admissible.
• [45]In fairness to DC Plank, I should say that the comments set out above applied equally to the evidence of Mr Perry.
• [46]But the onus of proof was on the Crown. Without DC Plank’s evidence, especially as to price and consumption levels, the Crown is left with an accused with a relatively modest amount of cannabis resin.
• [47]In the absence of any other factors inviting the inference of “supply”, I found C not guilty of the charge as libelled but guilty of simple possession.

 

 

(sgd.) “K J McGowan”

1 December 2014

 

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