APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice Clerk
Lord Osborne
Lord MacLean
|
[2006] HCJAC 8
XC287/03
OPINION OF THE COURT
delivered by
THE LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION
in
REFERRAL BY THE SCOTTISH
CRIMINAL CASES REVIEW COMMISSION
in the case of
JOHN McGINTY
Appellant
against
HER MAJESTY'S ADVOCATE
Respondent
_____________
|
For the appellant: Scott QC; Balfour and Manson
For the Crown: Mackay, AD; Crown Agent
18 January 2006
[1] On
12 June 1997 the appellant was convicted at Glasgow High Court
of contraventions of (1) section 4(3)(b) of the Misuse
of Drugs Act 1971 and (2) section 5(2) of the Act. Charge (1) as amended was that between 15 August 1995 and 27 September 1995 at a house
at 62 Glenacre Drive, Glasgow, he and Yvonne
Ellen Sloan were concerned in the supplying of a controlled drug, namely
cannabis resin to another or others in contravention of section 4(1) of the
Act.
[2] On
27 September 1995 Strathclyde
Police Drugs Squad executed a search warrant at the locus libelled. In a bedroom occupied by the appellant they found
various quantities of bank notes in bundles in plastic shopping bags and in a
shoe box. The total sum recovered was
£75,245.05. Nearly all of the notes were
in denominations of £10 and £20. The
appellant was unemployed at the time. The
police also recovered three pieces of paper containing names and figures and an
electronic note counter.
[3] The
banknotes were sealed in six security bags and taken to the forensic science
laboratory of Strathclyde Police. A sample
of about a third to a quarter of the contents of each bag was tested for the
presence of cannabis or cannabis resin.
Each sample was immersed in solvent, the evaporated residue of which was
then analysed. In each case the residue was
found to contain the active principles of cannabis; but the amount was not quantified. The scientists who carried out the tests,
Miss Gail Cochrane and Mr Campbell Stewart, were Crown witnesses. They concluded that the most likely cause of
the contamination was that someone had handled cannabis or cannabis resin
before handling the notes and had not washed his hands in the meantime. They could not say how many of the notes were
contaminated with the active principles of cannabis or cannabis resin, nor how
much of the contaminant was present in the sample tested. They accepted that there might have been only
one or two contaminated notes in each sample.
They did not discuss the possibility that the cannabis traces found by
their examination were acquired during the general circulation of the
notes.
[4] DC Ian
Bell of the Drug Squad said that the three pieces of paper were tick lists and
that they recorded the supply between 15 and 30 August 1995 of 923/4 kgs of cannabis resin, the
supply continuing thereafter on various dates up to the date of the search. He suggested that the list recorded the
receipt of substantial sums during that period.
The notations on these lists included the word "bar," which in his
experience referred to cannabis resin.
[5] The
appellant gave evidence to the effect that the money had been given to him by
his brother Joseph in the days immediately before the search, principally for
the purpose of checking. The money came
from an illegal operation conducted by his brother and others involving the
sale of "outers," that is to say parcels of cigarettes, spirits, denims and
fake designer products that were smuggled into the United
Kingdom.
The so-called tick list, with the exception of the last page, had been
copied out by him from pieces of paper with notations supplied by his brother. It referred to his brother's trade in
outers. The word "bar" in this document
referred to a barrel of beer. Other
witnesses, including Joseph McGinty, supported this account.
[6] In
a report dated 19
September 1997 on the scientific aspects of this case Dr Richard Sleeman
of NSA Limited, a specialist laboratory, referred to research findings that a
large number of banknotes acquired traces of drugs in the course of circulation. For the finding of traces of cannabis on
banknotes to have any evidential significance, it had to be demonstrated that
the frequency and the levels of contamination found differed significantly from
those found on banknotes taken from general circulation. The Crown evidence at the trial had not referred
to the possibility that the traces were acquired in general circulation. Since traces of various drugs could be found
on banknotes, the mere identification of a particular compound was unlikely to justify
the conclusion that a particular quantity of money was linked with drugs. Dr Sleeman also concluded that there had been
other deficiencies in the Crown evidence arising from the methodology that had
been used.
[7] An
appeal in this case was refused in 1999 (McGinty
v HMA, 2000 SCCR 293). We need not go into the reasons. It is sufficient to say that the question of
Dr Sleeman's report was raised by the appellant at that stage.
[8] The
Scottish Criminal Cases Review Commission has referred the case to us on the
view that there may have been a miscarriage of justice. They have drawn to our attention three
significant matters. The first is
Dr Sleeman's report. The second is a
memorandum, signed by the Head of Chemistry and by the Principal Scientist of
Strathclyde Police Forensic Laboratory, entitled "Examination of Money for
Drugs." It is dated 18 June 1997, six days after the
appellant was convicted. It records that
the writers have discussed the examination of money for the presence of drug
contamination with the Forensic Science Service, the Laboratory of the Government
Chemist and the Scottish Forensic Science Liaison Group, and that all were of
the opinion that the evidence obtained by such examination was "worthless and
open to serious challenge." The third
matter is that, in the light of Dr Sleeman's Report and their further study of
the subject, Miss Cochrane and Mr Stewart now regard their test results as
being no longer significant. We infer
that they accept that their results cannot support the conclusions that they
drew.
[9] The
appellant has tabled a ground of appeal based on fresh evidence. Approaching this as a fresh evidence appeal,
we are satisfied (a) that the three matters to which we have referred
constitute fresh evidence; (b) that there is a reasonable explanation why it
was not tendered at the trial, and (c) that there is independent support for
the reason why Miss Cochrane and Mr Stewart did not express their present
opinion at the trial. In our opinion, a
verdict returned in ignorance of this evidence must be regarded as a
miscarriage of justice (cf Cameron v HM
Adv, 1987 SCCR 608; Kidd v HM Adv,
2000 SCCR 513).
[10] It may however be unnecessary for us to treat this case as a
fresh evidence appeal. It may be
sufficient for us to say that the evidence of the forensic scientists was
significant evidence in the trial. The
trial judge expresses that view in his Report.
The advocate depute relied strongly upon it in his speech to the
jury. The trial judge directed the jury
carefully as to its relevance to the other evidence in the case. It is now obvious that that evidence ought
not to have been given, and that it would not have been given if the Crown
experts had been fully abreast of contemporary research studies on the
subject. Since that evidence was given,
we conclude that the appellant did not have a fair trial. On that view too there was a miscarriage of
justice.
[11] We shall quash the conviction on charge 1.
