Latest criminal cases, including expert evidence; Howden rule and identification; summary trials adjournment; attempt; drink driving

Police “expert” drugs evidence

It has been well settled since the 1980s (see White v HM Advocate 1986 SCCR 224 and Ul Haq v HM Advocate 1987 SCCR 433) that experienced police officers can give evidence commenting on drugs and other paraphernalia seized and offering an opinion as to whether the circumstances amount to dealing in drugs rather than mere possession.

Kennedy v Cordia Services [2016] UKSC 6 provided a focus in Jones v HM Advocate [2016] HCJAC 65 (17 March 2016: publication was delayed pending trial) for a pre-trial objection to the evidence and qualifications of DC Plank. The sheriff, after hearing evidence on DC Plank’s qualifications and experience, repelled a minute challenging the admissibility of his evidence. On appeal it was also argued that he was not an independent witness providing an impartial opinion on facts presented, and ought not to be regarded as an “expert”.

Although the officer had a generalised knowledge of controlled drugs, the drugs in question were of a family known as cathinones. One of them had only been recovered twice before in Europe. Some of his report had admittedly been lifted verbatim from a Government-funded website. The sheriff indicated that the jury would form a view by evaluating the witness’s whole evidence; there was likely to be substantial cross-examination. The Appeal Court agreed that the quality of the evidence was for the jury to assess, noting the decision in Myers, Brangman and Cox v The Queen [2015] UKPC 40 which approved the use of police evidence of the practices and cultures of gangs. Care had to be taken that simple and not necessarily balanced anecdotal evidence was not permitted to “assume the robe of expertise”. The skilled witness must set out their qualifications by training and experience, and also say from where they obtained information, if not based on their own observations and experience. The court was satisfied on the evidence adduced of DC Plank’s training and experience, including his membership of the STOP Unit in which similar officers around the country meet six-monthly. He had previous experience of some of the drugs seized, and information gained from STOP colleagues.

The court also did not consider that an informed observer would infer that DC Plank was not an independent or impartial witness by having given an initial valuation of the drugs as a member of the Drug Squad.

The same officer’s expertise was an issue in Robertson v HM Advocate [2016] HCJAC 57 (9 June 2016). Robertson involved the recovery of nine and four wraps of heroin on successive mornings. Each was worth £20 (a “score deal”). DC Plank stated that in his opinion these amounted to the appellant being a street dealer. It was submitted on appeal that this evidence had gone too far, straying into matters which were for the jury. The court accepted this, and that the sheriff’s direction that his evidence was corroborative of the basic finding was misguided, but was unable to say that a miscarriage of justice had occurred having regard to the quantity and packaging of the heroin found.

The conclusions to be drawn are fairly obvious but worth highlighting. Police drug “expert” evidence is a settled part of our landscape; however in each case care must be taken to check experience, knowledge and training. Prior involvement in the case may not affect admissibility: Johnston v HM Advocate 2015 HCJAC 118 (2 December 2015). Care has to be taken establishing the source of the information, and the officer’s evidence should not be seen to be usurping the jury’s role to consider its quality and reliability and whether to accept the opinion offered.

Howden revisited

Many trials centre on whether there is a sufficiency of evidence; those involving multiple charges often focus on whether the Moorov doctrine, or the ratio in Howden v HM Advocate 1994 SCCR 19, applies. Moorov of course requires one source of evidence linking the accused to each crime so as to establish a course of conduct, whereas in Howden there may be no direct evidence implicating the accused in a particular crime but sufficient evidence from another offence charged may point to the accused being involved in both.

In Wilson v HM Advocate [2016] HCJAC 70 (23 August 2016) the appellant was convicted of two charges of extortion and attempted extortion. It was alleged that the appellant and his co-accused had sent anonymous letters to the complainer threatening to kill members of his family unless he paid £60,000 on the first occasion and £375,000 on the second; they made pretences in anonymous phone calls; and the appellant had offered to courier the money. The co-accused admitted his involvement at police interview, and pled guilty at the close of the Crown case.

The first threatening letter had arrived weeks after the complainer had moved house, when only his family and workers, including the appellant, would have known the address. The complainer disclosed its terms to the appellant, whom he had known for years and confided in. The appellant offered to help by contacting a man he claimed to know called Davie who was a solicitor or a “barrister”. The complainer subsequently received telephone calls purportedly from Davie, who told him that tests showed the letter came from Liverpool villains and advised him to pay up using the appellant as courier.

About 15 months later the second letter arrived. The appellant arranged for “Davie” to call and suggest the same tests. The appellant picked up the letter and almost immediately afterwards the complainer received threatening letters indicating knowledge of his whereabouts. The complainer’s son persuaded him to go to the police this time. The complainer then received a text from “Davie” threatening his son “for grassing up” the appellant. Only the appellant had known of the son’s involvement.

DNA and handwriting evidence linked the co-accused with letters recovered; there was telephone evidence showing the appellant in close contact with his co-accused after receiving calls from the complainer; and the appellant admitted he knew them both. At trial the Crown relied on Howden for charge 1, with a sufficiency of evidence on charge 2.

The appellant argued that Howden could not apply when it was the same complainer in both charges; the time gap between the charges was too long and the similarities insufficient to justify the inference that the perpetrator was the same.

Refusing the appeal, the court concluded that Howden was of little or no relevance. There was evidence to prove the crime on charge 1 and the true issue was whether the complainer’s evidence identifying the appellant as a participant was corroborated. The two crimes were very closely linked, with an almost identical modus operandi. Given the obvious improbability of a different person involved in the first charge, the gap in identification was filled by the circumstantial identification evidence in charge 2. The time gap did not require a different outcome.

This is a very unusual case where both offences involved sophisticated pretences to persuade the complainer to act against a background of threats. It will be interesting to see whether this case is used in future when evidence of identification in a particular charge is lacking, although the ratio harks back to HM Advocate v Bickerstaff 1926 JC 65 and the principle that evidence in one charge may be used in determining another if viewed as elements in a single course of conduct due to similarities in time, character and circumstances.

Adjournment of summary trials

I have covered this topic previously as it is an everyday feature of summary courts at present. Despite various initiatives over the years and certain statutory changes, not all working to the same end, summary trials regularly feature allegations more than a year old. Experience shows this coincides with a diminution in the average witness’s ability spontaneously to recall the significant details. Witnesses can refresh their memories by reading their statements prior to giving evidence, or there may be attempts in court to refresh witnesses’ memories by reference to prior statements, but these are not always successful or satisfactory.

Against that background Archer v Procurator Fiscal, Glasgow [2016] SAC (Crim) 23 (26 July 2016) makes interesting reading. The charges (statutory breach of the peace, failing to give particulars and struggling with police officers) arose from incidents at a bar and then a police station in February 2015. Trials in August 2015 and January 2016 were adjourned due to witness difficulties. When the case called again after 4pm on 25 May 2016, the sheriff adjourned it due to lack of court time, despite opposition.

On a bill of advocation it was argued that the sheriff had failed to balance prejudice to the accused with that to the prosecutor and the public interest. At the May diet the Crown had prioritised another trial with a domestic element dating from July 2015. The Crown contended this had been done for proper reasons, and it had refrained from enforcing warrants granted for the witness who had previously failed to attend, to avoid appearing “heavy handed”.

The Sheriff Appeal Court reiterated that it would only interfere on a question of adjournment if it could be shown that the trial court had misdirected itself or reached a decision no reasonable court could have reached. The sheriff’s report did not enunciate the test applied, and the court addressed the issues of prejudice itself. While refusal to adjourn might mean an end to the prosecution, that was not conclusive. The Crown had contributed to the delay in not executing the witness warrant and not giving priority to a case which was calling for trial for a third time. Since the charges were considered not the most serious, the bill was passed and the complaint deserted simpliciter.

This case is a significant one to bear in mind, as the court took account of the manner in which the Crown pursued this complaint previously and the way in which it prioritised another case on the day. There was however a case in my view for refusing the adjournment on balance at the second trial diet.

Obviously custody cases and those with child witnesses have inherent priorities, but thereafter seriousness of the charges and the age and history of the allegations must be considered. Parties seeking or opposing adjournments must be able to put forward grounds for the balancing exercise to take place so that coherent reasons can be provided. The other option, not addressed in this appeal, is to offer to start hearing evidence at 4pm and continuing until the building closes for the evening – but this is a last resort best saved for special occasions!

Convictions for attempt

RCB v HM Advocate [2016] HCJAC 63 (22 July 2016) makes clear that where the jury is faced with a charge containing a completed act such as rape contrary to the Sexual Offences (Scotland) Act 2009, it is entitled to bring in a verdict of attempt. It would do so by including the word “attempt” when returning the verdict but with no alteration to the libel. This verdict is recorded by the clerk of court and should be recorded for the purpose of criminal records.

Drink driving

Following Jenkins v Procurator Fiscal, Stranraer [2016] SAC (Crim) 14 (see August article), the Sheriff Appeal Court reiterated its position in Docherty v Procurator Fiscal, Paisley [2016] SAC (Crim) 21 (29 June 2016) and reduced a two-year disqualification to 12 months (discounted from 16), for an 18-year-old first offender with a breath alcohol reading of 44. He admitted his guilt, had withdrawn from driving lessons and had saved up towards paying fines totalling £650 for the drink/driving and related insurance offence. He had only driven a short distance when stopped. Care has to be taken when evaluating the risk posed by an offender under reference to the alcohol reading. In this case priority was given by the appeal court to the appellant being a first offender and the relatively significant financial penalties also imposed.


The Author
Frank Crowe, sheriff at Edinburgh 
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