Lord Osborne

Appellant: Gilchrist; Ross & Fox, Glasgow

Respondent: Turnbull, Q.C., A.D.; Crown Agent

13 January 2006

[1] On 19 November 2002, at the High Court in Glasgow, the appellant was convicted by a majority verdict on the following amended charge:

"On 6 July 2002 at Gordon Street, Hope Street and Cowcaddens Road, all Glasgow and elsewhere in Scotland, you were concerned in the supplying of a controlled drug, namely Diamorphine, a Class A drug specified in Part I of Schedule 2 to the aftermentioned Act, to another or others, in contravention of Section 4(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971, Section 4(3)(b)."

He was sentenced to 8 years imprisonment, backdated to 8 July 2002. No appeal is taken against the sentence, although one was originally marked.

[2] Leave to appeal against conviction was granted by three sift judges on 27 November 2003.

[3] The evidential background to the matter was that the appellant, who is a private taxi driver, met a man in a Spar shop in Bellshill, near where the appellant lived, and was requested to make a trip to Central Station, Glasgow to pick up a passenger who would identify himself to him. The appellant duly complied with this request and, upon arrival at the station, a person entered his taxi who plainly had the means of identifying it. He had with him a holdall. Within a very short time of leaving the station the passenger requested the appellant to pull over and stop. The passenger left the vehicle. The appellant drove on and was soon stopped by the police who discovered a large quantity of heroin in the back of the car. Its value was in excess of £1m. The appellant's defence, as given in evidence, was, at least to the effect that he had no idea that anything left in the back of the car was drugs. There was some suggestion as to whether he knew there was anything there at all after the passenger had left. The majority verdict reflects the jury's failure to accept that defence.

[4] The grounds of appeal that were eventually focused alleged ineffective misrepresentation by the appellant's counsel and solicitors at the trial and were focused by this court, in an interlocutor dated 14 January 2005, alleging failures of representation as follows:

"(1) to make efforts, if necessary by commission and diligence, to establish the identities of the subjects of the police surveillance prior to the appellant's arrest, with a view to incriminating those persons and citing them to give evidence at the appellant's trial;

(2) to seek an adjournment of the appellant's trial, it having become clear, it is said, by the morning of the trial that the Crown were not able or willing to provide the required information;

(3) to pursue the identity of the said subjects during cross examination of the Crown Witness Detective Inspector Brian Dodd."

[5] The evidence disclosed that the police had been engaged in a widespread surveillance exercise in relation to drug trafficking for a considerable period of time before the date in question, but equally it was established that the appellant had not come to the attention of the police until 6 July and was not a subject of the overall surveillance operation which was ongoing. Nevertheless, it was obvious that information had been obtained by the police from some source which directed them not only to the appellant and his home address in Bellshill but also to Central Station and the subsequent arrest. The advocate depute was at some pains to suggest to us that the source of that information was not necessarily an informer, but that does not seem to us to be material.

[6] Mr. Gilchrist, appearing for the appellant, submitted that against a background of the appellant specifically having instructed his advisers to establish the identities of the subjects of the police surveillance, the failure to do so and thereafter to lead such persons in evidence, amounted to a serious failure on the part of his advisers resulting in a miscarriage of justice, which he recognised was the necessary test. He accepted that he could not submit that such evidence as might have been available from the relevant witnesses would have led the jury inevitably to reach an acquittal but his basic position was that the absence of the evidence prejudiced the defence and conversely, if it had been led, the jury would have been in a better position to accept the appellant's overall position of ignorance of drugs at the material time.

[7] Both the instructing solicitor at the time and trial counsel submitted reports to this court which both counsel looked at in some detail. Both gave reasons as to why they did not follow up the line that was being pursued now.

[8] In response the advocate depute, particularly by reference to the position of the instructing solicitor, submitted that the whole approach was misconceived. Even if such persons as were involved in the surveillance operation had been discovered and lead in evidence, there could be no question of incrimination since the act of which the accused was convicted could only have been committed by himself, namely, driving the car with drugs in it. Subsequent investigations, once the names of the relevant persons were given to the defence after the trial, six in all, revealed five of those were excluded from the surveillance operation in due course and while the sixth was involved in such drug trafficking, all six denied any knowledge of the existence or involvement of the appellant. That was the maximum that the evidence they could give would yield and added nothing to the defence. He referred us generally to the leading case on defective misrepresentation, H.M. Advocate v Anderson 1996 S.C.C.R. 114 and more specifically to H.M. Advocate v McIntosh 1997 S.C.C.R. 389 and H.M. Advocate v Ditta 2002 S.C.C.R. 891, as both reflecting the proper approach in cases of this sort when defective representation was being alleged against a background of failure to lead evidence. He submitted that not only was the likely evidence to be identified but also it had to be assessed as both significant and material to the jury's deliberations such as to amount to a miscarriage of justice by reason of its absence.

[9] We have little difficulty in resolving this position against the appellant. In the first place there is no basis upon which the relevant persons, if they were identified prior to the trial, could be incriminated for the reasons we have already given. At best, they would merely have asserted that they were not aware of the existence or involvement of the appellant, but we do not see how this adds anything to the defence as stated and put forward. Furthermore, each or all of the relevant persons might have declined to get involved at all upon grounds of avoiding self incrimination and would, in any event, if led in evidence, would have to be given the opportunity to deny answering any questions which might suggest they were involved in drug trafficking. It cannot therefore be asserted with any confidence that there was any relevant evidence that was omitted from the trial by reason of the matter not being followed up. In this respect the case of McIntosh is of particular significance in identifying the test to be applied in a case of this type. To our mind there is no basis upon which it can be successfully asserted that even if all six witnesses had given evidence to the effect that they did not know of the existence of the appellant, nor that he was involved in drug trafficking, would add anything to the specific defence put forward at the trial. Furthermore, we regard it as highly significant that the courier plainly left the drugs deliberately in the taxi, something he would hardly have done unless he was sure that they were heading for the right destination. This suggests that the ignorance asserted by the appellant was unfounded as a matter of inference.

[10] Be that as it may, we do not consider that the representation at the trial was in any way defective in any of the aspects identified by this court in the relevant interlocutor or that, had the desiderated steps been taken, additional evidence of material value to the appellant's case could have been obtained. It cannot be therefore asserted that there was a miscarriage of justice by the failure to lead the relevant evidence.

[11] In these circumstances this appeal must fail.