CATHERINE McINTOSH on BEHALF OF JAMES McINNES v. HER MAJESTY'S ADVOCATE
| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| Lord Justice Clerk Lord Penrose Lord Wheatley | [2005HCJAC121] Appeal No: XC460/03 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEAL by JAMES EDWARD McINNES, deceased (continued by CATHERINE McINTOSH) Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
For the Appellant: Jackson QC, Shead; BCKM
For the Crown: Mitchell AD; Crown Agent
15 November 2005
Introduction
[1]On 26 November 1999 at Glasgow High Court the deceased appellant was convicted, along with Norman Bell and Anthony Leese, of the following charge:
"(1)between 21 March 1999 and 21 June 1999, both dates inclusive, at Sutcliffe Road, 1 Springboig Avenue, St George's Road ... all Glasgow and elsewhere in Glasgow, ... and elsewhere in the United Kingdom, you NORMAN BELL, JAMES EDWARD MCINNES and ANTHONY LEESE 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);
you JAMES EDWARD MCINNES did commit this offence while on bail, having been granted bail on 9 November 1998 at Glasgow Sheriff Court ... "
[2]The deceased was granted leave to appeal against conviction. On 11 April 2004 he died while in custody. The appeal is continued by his sister with the authority of the Court, in terms of section 303A of the Criminal Procedure (Scotland) Act 1995.
[3]There are three grounds of appeal. The first is that evidence of an incriminating statement made by the deceased to two police officers was unfairly obtained and ought not to have been admitted by the trial judge. The second is an Anderson ground in which various criticisms are made of the solicitor advocate who defended the deceased. The third is that, although the trial judge directed the jury on the question of onus of proof under section 28 of the Misuse of Drugs Act 1971 (the 1971 Act) according to the law as it was understood at the time, a subsequent decision of the court (Henvey and Reid v HM Adv, 2005 SCCR 282) has established that that was a misdirection.
[4]The third ground is presented in conjunction with a devolution minute in which it is asserted that the trial judge's directions on onus were incompatible with the deceased's right under article 6(2) of the Convention, which relates to the presumption of innocence, and accordingly that if he were to support the conviction, the Lord Advocate would be acting in a way that was incompatible with the deceased's Convention rights.
[5]Senior counsel for the appellant confined the appeal to the third ground and did not refer to the devolution minute. In abandoning the first ground he has impliedly accepted that the evidence of the incriminating statement was rightly admitted. We shall take that statement into account when we come to assess the cogency of the Crown case.
The evidence
[6]The evidence for the Crown came mainly from police officers who had conducted surveillance of the deceased. The surveillance covered a lock-up garage rented by him at Springboig.
[7]On 18 June 1999 the deceased was seen to help Anthony Leese to remove a BMW motorcar from a car park in Glasgow city centre.
[8]In the evening of 21 June the deceased was seen driving a Land Rover Discovery vehicle with Leese as a passenger. The vehicle stopped in St George's Road, Glasgow where Norman Bell entered the vehicle and removed two large heavy bags. One was a black holdall which the deceased had been seen carrying earlier in the day. Police officers followed the Land Rover. When the deceased noticed them, he drove through a red traffic light and along a one-way street in the wrong direction. He got out of the vehicle and ran away, but was caught and arrested.
[9]The deceased was taken to Stewart Street Police Station. On his way to a holding cell he asked if he could speak to the officer in charge of the case. D Insp Corrigan, accompanied by D Insp Heffron, spoke to the deceased in a room near the cell. The deceased was nervous and agitated. He asked how he could help himself and how he could get out of custody. They told him inter alia that any information that he provided would have to be on the record and would be relayed to the procurator fiscal; that he would soon be interviewed under tape recorded conditions and that that would give him the opportunity to say anything he wished. As the deceased was being taken back to his cell, he said "I know where there are more drugs worth millions of pounds." When D Insp Heffron asked him where, he replied "In a car, in a garage in Springboig." D Insp Heffron then asked him "Whose property is it?" He replied "The drugs are mine." The deceased was again cautioned and was again asked where the drugs were. He replied "In a BMW, the keys are in my possession."
[10]Police officers found the BMW in the lock-up at Springboig. In the boot they found heroin worth about £12,300,000. The contents of the boot had already been disturbed. The bags handed over to Bell at St George's Road were recovered. They were found to contain heroin with an estimated street value of about £4,000,000. The heroin in those bags had come from the heroin stored in the BMW. A fingerprint of the deceased was found on the boot of the car.
[11]The deceased's defence was that the drugs belonged to Leese and that Leese had asked him for a loan of the garage and, later, for a lift in the Land Rover. The deceased said that he had no idea that the bags contained drugs or that there were drugs in the boot of the BMW. He thought that the material was Semtex. He admitted that he spoke to the two officers at Stewart Street Police Station but said that he had used the word "stuff" rather than "drugs;" that he had not referred to millions of pounds, and that he had not said that the drugs were his. He said that the police officers were lying or were mistaken.
[12]Leese gave evidence. He contradicted the deceased and directly incriminated him. He pled guilty to the charge as soon as his case was closed.
The directions of the trial judge and subsequent case law
[13]On the question of onus of proof in relation to section 28 of the 1971 Act, which we need not quote, the trial judge gave the following directions.
"In relation to that aspect of the case against James McInnes it is not necessary for the Crown to prove that McInnes knew that the bags handed over to Norman Bell contained drugs, provided you are satisfied that he was aware that he was involved with Leese in supplying something. In that situation, that is to say, if you are satisfied that James McInnes knew he was involved in supplying something which, as we know, turned out to be drugs, then the onus or burden of proof shift [sic] to him to satisfy you that he did not know or suspect, or have reason to suspect, that what the bags contained were drugs and what he was involved in supplying was drugs. If you find, on the balance of probabilities, that you believe him and his evidence was that it was Leese who filled these two bags, these two hol ... the holdall and the plastic bag from the contents of the boot, and that what he took to be contained in these bags was Semtex rather than drugs, you would, if you believe Mr McInnes that he did not know or suspect, or have reason to suspect, during all the time ... during the short time that the bags were in his Land Rover, that they contained drugs, you will acquit him.
In making up your mind about this you are once again entitled of course to have regard to all of the surrounding evidence, all the evidence of the surrounding facts and circumstances and any inference you feel it is appropriate to draw from the evidence of the surrounding facts and circumstances, including the police evidence of the accused's reaction, provided you accept that as credible evidence and including the evidence of the photographs showing what the bags looked like.
If you decided that the onus had shifted to the accused, in the manner that I have described, but did not believe him, then you would convict him."
These directions were in accordance with the decision of this court in Salmon v HM Adv (1999 JC 67) as to the interpretation of section 28 on the question of onus.
[14]Thereafter, in the light of the decision of the House of Lords in R v Lambert ([2002] 2 AC 545), the interpretation of section 28 on that question was considered by a court of five judges in Henvey and Reid v HM Adv (supra). By reason of a concession made by the Crown, the court in that case was required to decide the point only in the context of the Convention. This trial took place before the incorporation of the Convention.
Submissions for the parties
The section 28 point
[15]Senior counsel for the appellant submitted that if the trial judge's directions in this case were to be impugned, this case too would have to be remitted to five judges with a view to having Salmon v HM Adv (supra) reconsidered so far as it affected pre-Convention cases. The advocate depute submitted that the court need not go back to Salmon v HM Adv because the Lord Justice General's observations in that case on the directions that should be given in a case such as this (ibid, at pp 78-81) were made obiter.
Miscarriage of justice
[16]The advocate depute submitted that it was unnecessary for the court even to consider the question of onus because, on any view of the case, there had been no miscarriage of justice. It was true that in Henvey and Reid v HM Adv (supra) the court had held that it could not impose its own view of the facts in relation to a conviction that followed from what it held to have been a misdirection on onus. In this case, the Crown case was much stronger. The court could conclude from the evidence, as the House of Lords had done in R v Lambert (supra), that a conviction was virtually inevitable.
[17]Senior counsel for the appellant submitted that the court not ought to assume what view the jury would have taken if they had been directed in accordance with Henvey and Reid v HM Adv (supra). The deceased's evidence was that he thought that the material in question was Semtex. The court should not exclude the possibility that the jury might have held that that raised a reasonable doubt. A similar argument on behalf of the Crown had been rejected in similar circumstances in Henvey and Reid v HM Adv (supra, at para [21]).
Conclusions
Section 28
[18]Counsel agree that in the light of Henvey and Reid v HM Adv (supra), the trial judge misdirected the jury on the question of onus. We agree with the submission of senior counsel for the appellant that there is an issue to be resolved as to the status of Salmon v HM Adv (supra) in cases that predate the incorporation of the Convention. But on the view that we have taken of the evidence in this case, we consider that onus is not the determining issue.
Miscarriage of justice
[19]In our view, there was no miscarriage of justice. The Crown case was overwhelming. It was much stronger, in our view, than the Crown case in Henvey and Reid v HM Adv (supra). There was the direct evidence of the surveillance officers connecting the deceased directly to the BMW and the lock-up; the finding of his fingerprint on the boot of the BMW; the transfer of the bags to Bell; the deceased's attempted flight at the scene of his arrest; and his incriminating statement at the police station which, on the evidence of the two detective inspectors, disclosed special knowledge of a particularly significant kind. There was also the evidence of Leese, who directly incriminated the deceased.
[20]The jury were also entitled to consider, as they must have done, the improbability of the deceased's own evidence and, in particular, of his version of the statement that he made at the police station.
Decision
[21]We shall refuse the appeal.