Act: Stewart, AD; Crown Agent

Alt: Renucci; Graeme Murray & Co, Aberdeen

19 February 2008

Introduction

[1] On 15 January 2008 the accused appeared before me at Edinburgh High Court. He faced a section 76 indictment that libelled two charges against him. Those charges were in the following terms: -

"(1) On 12 October 2007 at Fraser Place and 15D Powis Place, both Aberdeen and elsewhere to the Prosecutor meantime unknown, you were concerned in the supplying of a controlled drug, namely Cocaine, a Class A drug specified in Part 1of Schedule 2 to the aftermentioned Act, to another or others and in particular to David Smith and Ronald Cormack, both c/o Grampian Police, Aberdeen, in contravention of Section 4(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971, Section 4(3)(b);

and

(2) On 12 October 2007 at Fraser Place and 15D Powis Place, both Aberdeen and elsewhere to the Prosecutor meantime unknown you were concerned in the supplying of a controlled drug, namely Diamorphine, a Class A drug specified in Part 1 of Schedule 2 to the aftermentioned Act, to another or others and in particular to David Smith and Ronald Cormack, both c/o Grampian Police, Aberdeen in contravention of Section 4(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971, Section 4(3)(b)."

The accused pled guilty to both charges.

Narrative of the facts

[2] Having moved for sentence and having tendered a schedule of previous convictions relating to the accused, the Advocate Depute read out a narrative of the facts, which was in the following terms:-

"Acting on intelligence received, police craved a Drug Search Warrant in respect of 15D Powis Place, Aberdeen, the locus, which is the accused's home address. While a police officer was in the process of craving the Warrant, other officers kept the locus under observation, with instructions to detain the accused should he leave before the warrant was available for execution.

At 11.55 pm on Thursday 11 October 2007 the accused was seen leaving 15D Powis Place , and was detained for the purposes of a drug search.

A short time later police witnesses arrived, cautioned the accused and showed him the Drug Search Warrant. The accused was taken back to 15D Powis Place, where police witnesses noted that the door had been reinforced with wooden panelling. A length of wood was seen by the door which could have been used as a prop to keep the door closed.

At 1.30 am on Friday 12 October 2007 at 15D Powis Place, Aberdeen in the presence of witness Detective Constable Cordiner, witness Detective Constable Laing cautioned and detained the accused in terms of Section 14 of the Criminal Procedure (Scotland) Act 1995. He indicated he understood and made no reply.

The accused was taken to the bathroom where he was searched and a mobile telephone, a set of electronic scales, £4,500 of money, a wallet containing £225 of money, and a SIM card were recovered.

From the left front pocket of the accused's trousers, police recovered Label 6, which consists in:-

- A bag containing a substance identified subsequently as diamorphine, a class A controlled drug, 5.5g in quantity, which if divided into 'tenner bags' could have realised on sale £550.

- Two knotted, blue plastic packages ...... containing respectively 6.81 and 2.83g of an off-white waxy substance which was identified subsequently as cocaine, in the form known colloquially as 'crack cocaine'. Had these been subdivided into £25 'rock' deals they would have realised £1,175 (£850 + £325).

From down the front of the accused's trousers, police recovered Label 8, a blue bag which contained a number of packages. Within Label 8 were further packages which can be divided into three groups:-

- Six knotted packages in blue plastic, similar to another one in size and appearance, were discovered. Three of them were selected at random and opened, and found to contain a white powder which was identified subsequently as cocaine, a class A controlled drug. The average weight of the three packages which were opened was 27.67g. Had the total quantity been subdivided into 'gram deals', it would have realised a maximum of £11,700 on sale.

- Seven knotted packages in blue plastic were discovered. Three of them were selected at random and opened, and found to contain 'crack' cocaine. The average weight of the three packages which were opened was 6.74g. Divided into £25 'rock deals', the total quantity could have realised a maximum of £5,775 on sale.

- A package was discovered containing brown powder which was identified subsequently as diamorphine, a class A controlled drug, 27.22g by weight. Had that quantity been divided into 'tenner bags', it could have realised £2,720 on sale.

The full sale value of the drugs recovered is thus £21,920: £18,650 in cocaine and crack cocaine, and £3,270 in diamorphine. Had the matter gone to trial, the Crown would have led evidence of the quantities recovered, and the prices realised on the sale of controlled substances, from police officers skilled and experienced in such matters and able to speak to the state of the market in the Grampian police area as at the date of the crime.

The flat was searched and a mobile telephone, an envelope with notations and various items of packaging - clingfilm, and plastic sandwich bags - were recovered.

Following the search the accused was detained and taken to Grampian Police Headquarters where he was later cautioned and interviewed between 4.28 am and 5.00 am on Friday 12 October 2007 within Interview Room Number 3. He agreed that he had been detained on Fraser Place, Aberdeen and confirmed that he was shown a Drug Search Warrant. He answered 'No Comment' to all other questions he was asked. He also replied 'No comment' when he was cautioned and charged."

It will be noted that the narrative makes no mention of either David Smith and Ronald Cormack, who are named in both charges.

Submissions by parties

[3] When counsel for the accused addressed me on 15 January 2008, he informed me that no issue was taken with the narrative of facts. He also stated that the accused had become involved in these offences in the following circumstances. The accused had recently been released from prison. He abused heroin. He had been approached by other individuals and asked to provide a safe house for the drugs which had subsequently been recovered by the police. He had done so at his house at 15D Powis Place, Aberdeen. It was explained that in return for providing a safe house, the accused was to receive drugs for his own use. Counsel for the accused also explained that during 11 October 2007 the accused had received a phone call informing him that the drugs and money were to be removed from his flat and taken to George Street in Aberdeen. He had been in the process of doing that when he had been detained. That was how he came to have no interest in either the drugs or the money which had been found in his possession and in respect of which the Advocate Depute had sought forfeiture.

[4] Having been addressed by counsel for the accused I then asked the Advocate Depute whether the Crown accepted the explanation put forward on behalf of the accused. In response, the Advocate Depute informed me that in the course of a routine patrol on the evening of 11 October 2007, police officers had seen a car being used by a person who was known to be a drug dealer. That car had been seen in the vicinity of the accused's flat. Around the same time another person had been seen leaving the block of flats in which the accused's house was located. This had occurred about 7 pm. The Advocate Depute indicated those sightings had caused the police to obtain the search warrant which they had subsequently enforced. The Advocate Depute suggested that the observations made by the police tended to bear out what had been said on behalf of the accused. The case was however continued overnight to enable the Advocate Depute to consider the Crown's position in respect of the explanation put forward in mitigation on behalf of the accused.

[5] The case called again the following day. The Advocate Depute informed me that the procurator fiscal had spoken to the reporting police officer. I was informed that the police did not dispute the fact that the accused had recently been released from prison or that he had a drug habit. The police did, however, dispute that the accused had been holding the drugs for others. The Advocate Depute also informed that the Crown disputed that the drugs were being held by the accused on behalf of others.

[6] Following an adjournment, which I allowed to enable counsel to discuss the case further, I was addressed further by the Advocate Depute. I was informed that the Crown's position remained that the mitigation advanced to the effect that the accused had been holding the drugs for another person was not accepted. The Advocate Depute offered to explain to me in detail why the Crown had reached that view, but I indicated that it might not be appropriate for him to elaborate on the information the Procurator Fiscal had obtained from the police, lest a proof in mitigation took place. The Advocate Depute went on to state, however, that the problem was that the Crown could not "actively dispute" what was being advanced. The Advocate Depute did, however, repeat that the Crown do not accept that the accused's involvement had been limited to providing a safe house for the drugs on one day, namely 11 October 2007.

[7] In light of what the Advocate Depute had said, I indicated to counsel for the accused that I was unable to accept the factual basis for the plea in mitigation that was being put forward. I explained that I understood it was my duty to make that clear to the accused and to offer a proof in mitigation, which I did.

[8] Counsel for the accused was resistant to the idea that a proof in mitigation was the way to proceed. He submitted that a proof in mitigation might be a waste of valuable court time in view of the fact that, as he understood it, the Crown was not in a position to lead evidence and to dispute any evidence led by the accused. He submitted that the plea in mitigation he had advanced was consistent with the terms of the narrative, with which he agreed, and that I should sentence the accused on the basis that the accused's involvement with the drugs and money had been limited to his providing a safe house. The Advocate Depute was also resistant to the idea of holding a proof in mitigation and observed that he could not see how the leading of evidence would help. He submitted that there had to be occasions on which a factual issue between the Crown and defence could not be resolved and he suggested this was one such occasion.

[9] I continued the case further to enable counsel for the accused to consult with his client and to have further discussions with the Advocate Depute.

[10] The case called again the following day. On this occasion, I was addressed on the law by counsel for the accused and the Advocate Depute. Both stated that it was unnecessary to hold a proof in mitigation in the present case.

[11] Counsel for the accused made clear that the accused did not wish to take up the offer of a proof in mitigation I had made. He submitted that when a plea in mitigation has been advanced, specific contradiction of its terms by the Crown was a different matter from the Crown stating that it did not accept the line of mitigation involved. In the present case there were no factual inconsistencies between the plea in mitigation advanced on behalf of the accused and the narrative of facts that the Advocate Depute had presented to the Court. The situation appeared to be one in which the Crown was not in a position to lead evidence in contradiction of what was being advanced on behalf of the accused. It was submitted that whilst it was for the defence to lead evidence when the Crown put forward a factual proposition that the accused did not accept, if the Crown was disputing a version of events advanced on behalf of the accused, it was for the Crown to decide whether it wished a proof in mitigation and, if so, to lead evidence during any proof. The onus in such a situation would rest on the Crown. It was argued that in the circumstances of the present case, the Court should accept the facts advanced on behalf of the accused, even although the Crown did not do so.

[12] In his submissions, the Advocate Depute indicated that the Crown's position remained as before. The Crown took the view that the plea in mitigation was not inconsistent with the terms of the narrative that had been read to the Court. The factual basis of the plea in mitigation advanced had been discussed by the procurator fiscal with the police. In light of that discussion, the Crown did not accept as a matter of fact that the accused had been holding the drugs for someone else. However, the Crown did not seek or intend to dispute was being said, because "there were no specific points of conflict which would enable the Crown to lead evidence in rebuttal". That was because the disagreement between the Crown and the accused related to questions of interpretation of the facts set out in the narrative of the facts, with the defence contending that one thing had been taking place and the Crown not accepting that. The Advocate Depute submitted that the Crown was perfectly entitled to say that it did not accept the version of the facts on which the plea in mitigation was based but indicate that it did not seek to dispute it.

[13] The Advocate Depute confirmed that the Crown was content that I should sentence the accused on a factual basis that the Crown do not accept as being correct.

[14] During the course of the submissions, I was referred to the following authorities Galloway v Adair 1947 JC 7, Barn v Smith 1978 JC 17, Hughes v Donnelly 1994 SCCR 598, H.M. Advocate v Bennett 1996 SCCR 331, Dawson v Ritchie 1998 SLT 807, McCartney v H.M. Advocate 1997 SCCR 644, McPherson v H. M. Advocate 1999 SLT 1374 and H. M. Advocate v Kiloh Unreported 21 January 2005. Reference was also made to Benton & Brown's Criminal Procedure (Sixth Edition) Para. 18-29.1.

Discussion

[15] The situation with which I am confronted in the present case is such that I took the view that I should issue an Opinion before I proceeded to sentence the accused. I reached that conclusion so that parties are fully aware why I have offered counsel for the accused the opportunity to lead evidence at a proof in mitigation. That offer was made after I had been advised by the Advocate Depute that the Crown do not accept that the accused's involvement with the drugs and money recovered from him on 12 October 2007 was limited to his providing a safe house and keeping them on behalf of others, in return for his receiving a quantity of drugs for personal use. Obviously, if the offer of a proof in mitigation had been taken up and evidence had been led on behalf of the accused, it would have been open to the Crown to have led evidence as well.

[16] In my opinion, it is self evident that when a court requires to sentence an accused it should seek to do so on a factual basis that is true. It is for the Crown to lay before the court the facts and circumstances relating to the charge to which an accused has tendered a plea of guilty. In the present case that was done by means of a written narrative the terms of which had been discussed by the Advocate Depute and counsel for the defence in advance of the first hearing in this case and have not been disputed on behalf of the accused. However, the responsibility to which I refer rests on the Crown whether or not an agreed narrative is read over and presented to the court. As was made clear by Lord Justice General Rodger in H. M. Advocate v Bennett 1996 S.C.C.R. 331, at p. 338, the function of the prosecutor is not discharged when he has moved for sentence. His duties include that of ensuring that information relevant to the question of sentence is placed before the sentencing judge and that the judge is alerted to the fact that information in a plea in mitigation is disputed. As Lord Justice General Rodger stated " While all decisions in matters of sentencing are for the trial judge and are not the responsibility of the prosecutor, it is the duty of the prosecutor to ensure so far as possible that accuracy is achieved in all matters of fact relating to sentence. That is to avoid errors being made which may lead to a sentence being imposed which is either excessive or unduly lenient."

[17] The case of Galloway v Adair, supra, makes clear that if a statement which he has made on behalf of an accused in extenuation is disputed by the Crown it must be left out of consideration by the sentencing judge. That was reaffirmed in the case of Barn v Smith, supra. In the latter case, Lord Wheatley suggested, at p.20 of the report, that in a situation when factual allegations, which have been made by the prosecutor or in mitigation, are denied by the other party they should be left out of account. He went on to observe that if such a dispute arose it was open to the Court to call for evidence in support of such competing versions.

[18] More recent authority suggests that in such a situation it is for the sentencing judge to make clear to an accused's representative that a line of mitigation, which is being disputed by the Crown, can not be accepted on an ex parte basis. In such a situation, the sentencing judge should offer a proof in mitigation and allow evidence to be led (see Hughes v Donnelly, supra, per Lord Justice Clerk Ross at p.600C and McArtney v H.M. Advocate, supra, per Lord Sutherland at 646B-C).

[19] Standing that recent authority, which is reflected in the terms of para.18-29.1 of Renton and Brown's Criminal Procedure (Sixth Edition), I do not consider that it is open to me to call for evidence in the sense of my having power to require either the Crown or the accused to lead evidence.

[20] In the present case, the divergence in position between that of the Crown and that of the defence is a material one. It could have a bearing on the sentence I impose. That divergence of position relates to a question of fact, namely whether the accused's role was limited to providing a safe house at 15D Powis Place and to holding drugs and money there on behalf of others. It is maintained on behalf of the accused that his role was limited in that way. The Crown do not accept that it was. That can only mean that the Crown do not accept the truth of what is maintained on behalf of the accused as having been his role. That is why I deemed it appropriate to offer the accused the opportunity of leading evidence. When I did so, I was conscious that the Advocate Depute and counsel for the accused have both submitted that the line of mitigation advanced on behalf of the accused is consistent with the narrative placed before the Court. As it remains possible that I may yet hear evidence, and indeed further submissions in mitigation, I offer no indication as to whether I accept those submissions.

[21] I also recognise that the Advocate Depute has stated that the Crown do not intend to "actively dispute" what is being advanced on behalf of the accused. I find it difficult to reconcile that particular statement with the Advocate Depute having made it clear that the Crown does not accept that the accused's role was limited to holding the drugs and money at a safe house. As I understand it, the Crown takes the view that if a proof in mitigation took place, it would not be in a position to lead evidence to contradict any evidence led on behalf of the accused. I am obviously not in a position to know what evidence the Crown could or would wish to lead. Nor is to for me to offer any suggestions to the Crown as to the position it should adopt, or the questions it might ask, during any proof in mitigation.

[22] This is not a case in which the Crown has restricted itself to saying that it does not intend to contradict any facts being asserted on behalf of the accused. Such a position could be adopted in a particular case for a variety of reasons, including that the Crown was not in a position to lead evidence contradicting any evidence led by the accused or that the Crown was, for whatever reason, such as the wish to protect confidential sources of information, not inclined to lead any evidence available to it. In that event, the Court could proceed to sentence in the knowledge that the Crown had not informed the Court that it did not accept the factual basis upon which the plea in mitigation proceeded. In my opinion, such a situation would be different from that which has arisen in the present case, in which the Crown has stated quite unequivocally that it does not accept as correct the factual basis upon which counsel for the accused seeks to proceed. Were I to ignore the Crown's position and proceed to sentence on the factual basis outlined by counsel for the accused, I would departing from the principle that the Court should seek to sentence an accused on a factual basis that is true. I do not consider that it would appropriate for me to do so.

[23] It is for the accused to decide whether he wishes to lead evidence in mitigation. Assuming that it remains his position that he does not wish a proof in mitigation, I will offer counsel for the accused the opportunity to say anything further he wishes in mitigation. Thereafter, I would propose to sentence the accused on the basis that his involvement in the supply of the heroin and cocaine to which the two charges relates was not limited to his providing a safe house for other individuals. I will impose sentence him on the basis that he had a greater involvement in the supply of heroin and cocaine that was undoubtedly taking place within his flat on 11 October 2007. There is obviously a measure of uncertainty as to the precise nature of the accused's involvement in that supply but such uncertainty is not uncommon in cases involving contraventions of section 4(3)(b) of the Misuse of Drugs Act 1971, where any accused who is prosecuted will almost inevitably have been involved with others, who have not been prosecuted, who may never have been identified, and whose precise roles may be unclear.