Appellant: Shead, Advocate; Drummond Miller

Respondent: Ogg, Q.C.; Crown Agent

10 June 2010

The background circumstances
[1] The appellant was indicted, along with six other persons, to stand trial in the High Court at Glasgow on various charges brought under the Misuse of Drugs Act 1971. The appellant was the third-named accused. He was convicted in restricted terms on charges (1), (4) and (5) in the indictment which he faced. In summary, the terms of the appellant's convictions were, in respect of charge (1), that between 12 July and 5 September 2000, both dates inclusive, in various motor cars and at various locations in Glasgow and elsewhere in the United Kingdom, he was concerned in the supplying of cannabis resin; in respect of charge (4), that on 2 September 2000, in two motor cars and at various locations in Glasgow and elsewhere he was concerned in the supplying of cocaine; and, in respect of charge (5), that on 11 August 2000 in a particular motor car and at various places in Glasgow and elsewhere, he was concerned in the supplying of ecstasy. The background to the trial included a surveillance operation known as "Beaker" conducted by the Scottish Crime Squad during the summer of the year 2000. The evidence was principally directed to events occurring on four dates in that period, namely 12 July, 11 August, 2 September and 3 September. On 13 July 2001, the appellant was sentenced to seven years' imprisonment in respect of charge (1), nine years' imprisonment in respect of charge (4) and five years' imprisonment in respect of charge (5), all these sentences being ordered to run concurrently from the date of their imposition.

[2] By a Note of Appeal, dated 1 February 2002 the appellant appealed against his conviction and sentence. Several grounds of appeal were then tabled, which have subsequently been disposed of by this Court. On 18 September 2009 certain additional grounds of appeal were lodged. On 13 October 2009, having heard the parties at a procedural hearing, this Court allowed those additional grounds, No 1B of the appeal process, to be received and argued. Those grounds are in the following terms:

"Since the conviction the Crown has disclosed a number of statements including those given by the witness, Saleem Asghar. It is understood that those statements were not made available to those acting for the appellant at the trial. The statements contain information which was essential to the proper preparation and presentation of the defence case. In particular the lack of disclosure meant that there was no opportunity for those acting for the defence to cross-examine the witness on the contents of these statements.

The witness gave evidence that when searching the appellant a key was found in his possession. That key was found to fit a padlock on a toolbox which turned out to contain substantial quantities of cannabis resin. Reference is made to pages 5 and 6 of the trial judge's report.

At the trial the evidence of the finding of the key was challenged on the appellant's behalf. In due course the appellant gave evidence in his own defence.

Two of the statements are of particular note in this context. In one the officer describes the search of the appellant and finding the key and a notebook. In another he describes finding only the notebook.

Given the importance of this chapter of evidence to the Crown's case the failure in the duty of disclosure materially prejudiced the fairness of the appellant's trial.

In any event, the breach of duty having occurred, the Lord Advocate was acting incompatibly with the appellant's right to a fair trial guaranteed by Article 6(1) in seeking the appellant's conviction. Such an act was ultra vires. Reference is made to section 57(2) of the Scotland Act 1998.

Separatim the appellant having been denied a fair trial there has accordingly been a miscarriage of justice."

[3] It should be explained that the Court has been furnished with two statements provided by the witness Saleem Asghar, who, at the material time, was a Detective Constable with the Scottish Crime Squad, having 13 years police service. He was one of a number of police officers who took part in the surveillance operation previously mentioned. In the first of these statements Constable Asghar explains that at about 1740 hours on 5 September 2000, he was on duty in Glasgow along with Detective Constable Raymond Bradley and another police officer, when he observed the appellant. Being aware that a petition warrant had been granted at Glasgow Sheriff Court for the arrest of the appellant in connection with alleged contraventions of the Misuse of Drugs Act 1971, he and Detective Constable Bradley approached the appellant and identified themselves. Thereafter the appellant was arrested. He was then conveyed by these police witnesses to Stewart Street Police Office. Constable Asghar goes on to state that at about 1814 hours he and Constable Bradley conducted a search of the appellant within a room at Stewart Street Police Office. He then, in this statement lists the items found in the course of the search, which included: (1) in the front right trouser ticket pocket a gold Buffo key; (2) from the left trouser pocket, a black notebook. The witness explains that the key was subsequently checked in a padlock found securing a red toolbox found in the rear of a red Fiat motor car, of registration number K502 MGA. When the toolbox was opened it was found that it contained quantities of cannabis resin, some of it in approximately one-quarter kilogram bars and other amounts of lesser weights.

[4] In the second statement made by Constable Asghar he records that at about 1814 hours on Tuesday 5 September 2000 he was on duty with Constable Bradley within Stewart Street Police Office when he carried out a search of the appellant. He goes on to say that he found in his rear left trouser pocket a black diary. The diary, he states, contained certain entries which were of interest to the police. In this statement no mention is made of the key referred to in the first statement.

[5] It should be explained that prior to a hearing of the appeal, a transcript had been obtained of the evidence of Detective Constable Asghar and also of the evidence of Detective Constable Bradley. It appears from these transcripts that Constable Asghar was questioned in his evidence-in-chief concerning the search which he and Detective Constable Bradley had conducted of the appellant. He testified to the finding of the diary in the appellant's left trouser pocket and also to the finding in the front right trouser pocket of the small key. This witness was cross-examined by counsel for the appellant. It was put to the witness that the small key had not been in the appellant's possession when he was arrested. However, the witness rejected that suggestion. It was put to Detective Constable Asghar that the key had been "planted". It was suggested to the witness that he was lying when he said that the key had been in the appellant's pocket when the search was conducted. The witness however denied that suggestion.

[6] The transcript of the evidence of Detective Constable Bradley shows that he gave evidence-in-chief concerning the findings at the search conducted of the appellant, explaining that he had found two items of significance, the notebook and the small key. This witness also was cross-examined by counsel for the appellant. It was put to him that the appellant had not had the small key in his right front trouser pocket; however the witness insisted that what he had said about that was correct. It was also put to this witness that he was telling a lie in connection with that matter, but that suggestion was refuted.

The hearing
[7] The purpose of the hearing before us on 22 January 2010 was to hear submissions on ground of appeal 1B, allowed to be received at the procedural hearing held on 13 October 2009, and also to hear the evidence of Saleem Asghar, authorised to be heard by the Court, following upon the reception of ground of appeal 1B. At the outset of the hearing, counsel for the appellant reminded us that it was concerned exclusively with ground of appeal 1B. He drew our attention to transcripts of the evidence of, first, Saleem Asghar, and, second, Raymond Bradley. It is apparent from the transcript that, in his evidence-in-chief, Mr Asghar dealt with the occasion when the appellant had been taken to Stewart Street Police Office and searched. He described the finding of the diary in his rear left trouser pocket and also the finding of a small key in the front right trouser pocket of the appellant. Mr Asghar was then cross-examined by counsel for the appellant, first, regarding the diary or notebook that had been found. At page 21 of the transcript, the cross-examiner turned to the matter of whether anything else had been found in the possession of the appellant. He referred to the finding of the small key. There then followed a passage in which counsel suggested to the witness that that key had not been in the possession of the appellant when he was arrested. At a later passage, counsel put it to the witness that the key had been "planted". The witness denied that such a thing had occurred. It was then put to the witness that he was telling a lie when he said that the key had been present on the person of the appellant when he was searched. No further mention had been made of the issue of the key during the course of the evidence of Mr Asghar.

[8] So far as the evidence of Raymond Bradley was concerned, it also had been transcribed. At page 23 of the transcript Detective Constable Bradley had said that he and Mr Asghar had conducted a search of the appellant at Stewart Street Police Office. He stated that during the course of that search he had found a notebook and a small key, which he identified as Crown label production 86. He said that it had been in the front right ticket pocket of the appellant's trousers. At page 76 of the transcript of the evidence of Detective Constable Bradley, the cross-examiner turned to keys that were in the possession of the appellant at the time when he was searched. It was put to the witness that the appellant had not had the small key in his right ticket pocket. The witness re-affirmed that he had had that key there. The witness also stated, in response to questioning, that he was not telling a lie regarding that matter and that he had not himself put the key where it was found.

[9] Against this background counsel for the appellant accepted that there was corroborated evidence from the two witnesses mentioned of the presence of the key in the pocket of the appellant. The key, of course, fitted the padlock on the toolbox in which a large quantity of cannabis resin had been found. The position of the appellant had always been that he did not have this key, despite the evidence given by the two police officers. Thus, the starting point for consideration of the significance of the non-disclosure of the statements given by Detective Constable Saleem Asghar had to be their assessment against this background. One of the statements referred merely to the finding of a notebook, the other referred to the finding of a key and the notebook. It was submitted that, had the contents of these statements been known to the appellant's advisors at the time of the trial, they would have provided more ammunition for the cross-examination of Mr Asghar. There was no dispute that the key in question did fit the padlock on the box in which the cannabis resin had been found. There could have been a more elaborate cross-examination of Detective Constable Asghar if the statements had been available at the time of the trial.

[10] Counsel for the appellant then drew our attention to certain authorities relating to disclosure. The matter had been dealt with in Sinclair v HMA 2005 S.C.C.R. 446. Reliance was placed on the observations of Lord Hope of Craighead in paragraphs 5, 6, 9, 11, 12, 34 and 35. The test which he propounded in paragraph 35 was whether or not it was possible to say that the appellant's defence had not been prejudiced by the non-disclosure. If that could not be said, there was a breach of Article 6 of the European Convention on Human Rights. Counsel also relied on the observations of Lord Rodger of Earlsferry in paragraph 43. In his view the question was whether or not the appellant's defence had been materially affected by the non-disclosure. Counsel also relied on Holland v HMA 2005 S.C.C.R. 417 and to the observations of Lord Rodger of Earlsferry in paragraphs 82 and 83. The test which he propounded was whether the material that was not disclosed might not possibly have affected the jury's verdict.

[11] Counsel submitted that what had been said in these two cases represented the law, at least until such time as the Supreme Court made a decision in McInnes v HMA, which case had been heard by that Court in December 2009. Proceeding upon the basis that, because of the non-disclosure, the appellant had lost an opportunity to cross-examine important police witnesses, that was a material matter. Counsel submitted that it was not necessary for him to show that the material that might have been elicited would in fact have made a difference. What the situation amounted to was that the appellant had been denied a fair trial in the circumstances. If that were the case, the appellant's conviction could not stand. However, it was recognised that there had been a number of sources of evidence against the appellant. Counsel submitted that all of the appellant's convictions should be quashed because the issue of credibility had loomed large, in particular, that of the appellant and Mr Asghar and Mr Bradley. If that submission were not accepted, then the Court should quash the conviction on charge (1), which related to cannabis resin; it was, of course, cannabis resin that had been found in the toolbox that could be opened by the key in question.

[12] The Advocate depute contended that the Court would not be able to determine the significance of the two statements of Mr Asghar without being able to reach a conclusion as to which had been compiled first in time. If evidence was available that the detailed statement had been the first to be prepared, the effect of the second was nugatory. If that were the case, there would be no consequences of the kind that there had been in Holland v HMA and Sinclair v HMA. The Advocate depute also relied on McDonald v HMA 2008 S.C.C.R. 954 at pages 978-9, paragraph 74. That case showed that the issue was what practical significance the material not disclosed might have had in the trial. It was submitted that, in this case it would have had none.

[13] As regards the statements of Detective Constable Asghar, the more detailed statement, No. 17D in the appeal process, had been compiled first in time. The briefer statement, No. 17A, which made no reference to the key, had been the second to be compiled. The Advocate depute then proposed to lead evidence from Mr Asghar to confirm that position. At this point counsel for the appellant objected to that course, although he stated no reasons for doing so. The Advocate depute recalled that, on 13 October 2009, when the Crown at a procedural hearing had sought authority to cite Mr Asghar to the present hearing, no objection had been taken on behalf of the appellant to that course. The Advocate depute said that it was obviously significant to hear the evidence of Mr Asghar by way of explanation concerning the circumstances surrounding the two statements compiled by him. Had these statements been disclosed, that is an explanation that he would have been able to give, if it were sought, at the trial. In these circumstances we decided to hear the evidence of Mr Saleem Asghar.

The evidence of Saleem Asghar
[14] Saleem Asghar testified that between 2000 and 2006 he had been a Detective Constable in the Scottish Crime Squad. He had now left the police force and was in business. He remembered the case involving the appellant Thomas Robertson Willies. There had been a trial at which he had given evidence. He had generated a number of statements in connection with the case against the appellant, using the audio typing system in use at the material time. Two statements related to essentially the same topic but there had been two other statements concerning the surveillance operation in which he had been involved. He was shown the two statements to which reference has been made, Nos 17A and 17D of the appeal process. No. 17A was the shorter of the two. After some hesitation, he stated that the longer of the two statements, No. 17D, was in fact the first one to have been compiled. The second and shorter statement, No. 17A was in the nature of a clarification regarding the diary and the contents. The "black diary" and the "black notebook" were the same document. The witness explained that the gold coloured Buffo key had been found by himself and Detective Constable Bradley during the course of the search of the appellant. It fitted the padlock on the toolbox, in which a substantial quantity of cannabis resin had been found. The witness said that, during the course of the trial there was some challenge regarding the treatment of the notebook or diary. Other allegations had been made by counsel for the defence, but he did not now remember what these had been. Had he been asked as to why the second statement had been made, the reason that he would have given was that it was necessary to provide an elaboration of his evidence relating to the diary.

[15] The witness was cross-examined by counsel for the appellant. He explained that the case in question had been one of his first cases with the Scottish Crime Squad. In preparation for giving evidence at this hearing, he had seen nothing at all, nor had he made any enquiries regarding the matter. He had been precognosced in the Crown Office. He had seen no notebook before attending Court to give evidence. He had not seen the transcripts of the evidence given by him and Detective Constable Bradley at the trial. The witness had no recollection of having been involved in connection with an interview of the appellant.

Further submissions
[16] The Advocate depute pointed out that Mr Asghar had now given evidence, which had not been challenged, concerning the order in which his two statements on the topic in question had been compiled. The longer of the two had been created first, the shorter second. He submitted that it was self-evident that one was more detailed than the other and related to an earlier time. The content of the longer statement plainly reflected the evidence given by the witness on oath at the trial, so nothing could have been made of it, had it been available then. As to the second statement there was nothing in it which was inconsistent with the evidence given at the trial. Looking at the contents of the two statements, had they both been available at the trial, there was no basis for the putting of any sinister suggestions relevant to his credibility to the witness, concerning the Buffo key. No suggestion had been made to the witness that either of the two statements had been made up to cover a fabrication of evidence relating to the key.

[17] Looking at the case of Sinclair v HMA and what was said in paragraphs 34-36, it could be said that that had no application to the circumstances of this case. It was impossible to discern how the defence could have been prejudiced in any way by the non-availability of the statements in question. Having regard to what was said in paragraph 74 in McDonald v HMA, it could be affirmed here that the non-disclosure had "little or no practical significance". Disclosure of the material concerned would not have affected in any way the line of cross-examination. The contents of the statements could have given rise to no challenge to the credibility of Mr Asghar. Quite simply, they would not have played any useful part in his cross-examination. In any event, he had been questioned at the trial on the basis that certain parts of his testimony were untrue regarding the key, following which the trial judge had given careful directions concerning the importance of the evidence relating to the key. The jury were told that, if they were not satisfied that such a key had been found on the appellant when he was searched, there would be no adequate basis for concluding that he had access to the inside of the toolbox and had been concerned in the supplying of any of its contents. Reference was made to pages 59-60 of transcript of the charge. In all these circumstances, the Advocate depute submitted that there was no substance in the ground of appeal under consideration. There was nothing extraordinary in a witness producing more than one statement. The appeal should be refused.

[18] Counsel for the appellant proceeded to address the Court on the evidence. He contended that there was a difficulty in hearing the evidence separately from the trial itself. It was unacceptable for the Crown to seek to "cover up" their breach of duty by leading evidence. Counsel asserted that the procedure followed in this appeal was "hopelessly unfair" to the appellant, although he gave no reasons to justify his assertion. The fact was that the existence of the two statements could have been made use of at the trial. There was a serious conceptual question involved in the procedure which had been followed. The Court was being asked to make an evaluation of the credibility of the evidence. Yet the Court was not the jury at the trial. In any event, in testifying, the witness had been uncertain at the outset as to which statement was the first compiled. It was not feasible to make a judgment outwith the "dynamic of the trial", including the evidence of other witnesses. Counsel accepted what had been said in McDonald v HMA at pages 278-9. The Court was free to evaluate the consequences of non-disclosure, but not in the manner suggested by the Crown.

The decision
[19] At the outset, it is appropriate to consider the approach which should be taken to a situation such as that existing in this case, in which the two police statements of Detective Constable Asghar were not disclosed by the Crown prior to the trial. As was recognised by counsel for the appellant, the law relating to the consequences of non-disclosure is now to be found in McInnes v HMA 2010 S.C.C.R. 286, on appeal from a decision of this Court reported in 2008 S.C.C.R. 869. The test favoured by the Supreme Court is clearly explained in paragraph 24 of the Opinion of Lord Hope of Craighead. There he said:

"The question which the appeal court must ask itself is whether, after taking full account of all the circumstances of the trial, including the non-disclosure in breach of the appellant's Convention right, the jury's verdict should be allowed to stand. That question will be answered in the negative if there was a real possibility of a different outcome - if the jury might reasonably have come to a different view on the issue to which they directed their verdict if the withheld material had been disclosed to the defence."

The matter was put in a similar manner by Lord Rodger of Earlsferry in paragraph 30 of his Opinion, where he said:

"Of course, an appellant can always argue that, if his advocate had been armed with the statements, it is possible that he could have persuaded the jury to come to a different conclusion. But the law deals in real, not in merely fanciful, possibilities. So, in cases like the present, an appellate court will only hold that a trial has been unfair and quash the jury's verdict as a miscarriage of justice if there is a real possibility that, if the statements had been disclosed, a jury might reasonably have come to a different verdict."

[20] Thus the question which we require to consider is whether there is, in this case, a real possibility that, if the two statements of Detective Constable Asghar had been disclosed, in the context of the trial, the jury might have reasonably come to a different verdict as regards charge (1) in the indictment, which, of course, was the charge involving cannabis resin. We do not accept that the issue that we are considering could have had any bearing on any of the other charges on which the appellant was convicted.

[21] Before expressing our view on that issue, it is appropriate to consider the proper approach to the evidence which was led by the Crown during the course of this appeal from former Detective Constable Asghar. As we have narrated, when the Advocate depute declared his intention of leading this evidence, that course was objected to by counsel for the appellant, although he advanced no reasons in support of his objection. In this connection, it is right to observe that the issue of Mr Asghar giving evidence was first raised at the procedural hearing in this appeal held on 13 October 2009. When the Court allowed the relevant ground of appeal, No. 1B of the appeal process, to be received, it authorised the transcription of the evidence given at the trial by Detective Constable Asghar and Detective Constable Bradley, which material was discussed during the course of the appeal hearing. Also, at that procedural hearing, the Crown asked the Court to grant a warrant to cite Mr Asghar for the purposes of his giving evidence at the appeal hearing. No objection was taken on behalf of the appellant to that course and accordingly a warrant to cite him was granted. We think it right to comment that, if the appellant's advisors considered that there was some objectionable feature in the Court hearing evidence from former Detective Constable Asghar, then one might have expected their objection, whatever it might have been, to have been stated at that time; yet that did not happen. Nevertheless, it appears to us appropriate to consider the legitimacy of our hearing the evidence of Mr Asghar.

[22] As we have already indicated, no reasons were given by counsel for the appellant for his objecting to the course taken. All that he thought fit to say in the course of his submissions to the Court, following upon the hearing of that evidence, was that the procedure adopted in the hearing of this appeal had been "hopelessly unfair". The approach that we have to take, explained by Lord Hope of Craighead and Lord Rodger of Earlsferry in McInnes v HMA, requires this Court to make a judgment as to whether, had the material that was not disclosed been available to the appellant and his advisors prior to the trial, there is a real possibility that the verdict of the jury would have been different. We emphasise that what must be considered is whether there is such a real possibility, not a fanciful possibility. Against that background, we consider that it was wholly legitimate for us to hear such explanation as Mr Asghar had for the existence of the two statements. Had the statements been disclosed and had they been the subject of cross-examination of Mr Asghar at the trial, no doubt he would have been able to give the same explanation for their existence as he gave to us in his evidence to this Court. That appears to us to be of assistance to us in reaching a view as to how the jury might have approached the matter, had the two statements been available at the trial.

[23] In affirming our view that it was appropriate for us to hear the evidence of Mr Asghar in the course of this appeal, we consider that we do not have to address the issue of whether we ourselves consider that he was a credible witness in testifying before us. Although, on that topic, it has to be said that there was no challenge whatever to what he said in the course of his evidence concerning the reason why the two statements existed. The approach which we consider we have to take is to look at his evidence on this matter as evidence which might have been available to the jury for their consideration. We must then ask ourselves the question whether his evidence regarding the statements was capable of being treated as credible by a reasonable jury. We have no reason to suppose that it was not. Indeed, no such suggestion was made.

[24] Approaching the matter in that way, we have reached the conclusion that there is no real possibility that the verdict of the jury would have been different as regards charge (1), had the statements not disclosed been available to the appellant at the trial, in association with the evidence Mr Ashgar could have given concerning them. In this connection it appears to us to be important to look at the contents of the two statements. The first of these, No. 17D of the appeal process, gives a full account of what was found in the possession of the appellant on the occasion of his search on 5 September 2000. In that statement the finding of the gold Buffo key and the black notebook were narrated. In the second statement Mr Asghar simply records the finding of the black diary or notebook and makes reference to certain features of its contents, for which purpose, it appeared from what was said by Mr Asghar, this statement was generated. The second statement does not purport to record that the notebook was the only item of property located during the course of the search. Thus it appears to us that there is no conflict between the contents of the two statements, nor is there a conflict between the contents of those statements and what was said by Mr Asghar in the course of his evidence given at the trial. In these circumstances, we consider that it would have been impossible for counsel to identify any sinister feature arising out of the statements, or to make any submissions to the jury critical of the credibility of Mr Asghar upon the basis of their contents. In all these circumstances, we conclude that the test which an appellant requires to meet, expressed in McInnes v HMA, has not been met in this case. We consider that the trial was a fair one and that there has been no miscarriage of justice. The appeal is refused.