Andrew Jones v. Her Majesty’s Advocate [2016] HCJAC 65

Appeal in terms of section 74 of the Criminal Procedure (Scotland) Act 1995:-The appellant was indicted to Stirling Sheriff Court in relation to various contraventions of section 4(3)(b) of the Misuse of Drugs Act 1971 and section 170(2) of the Customs and Excise Management Act 1979. In advance of trial the appellant lodged a minute in terms of section 71(2) of the Criminal Procedure (Scotland) Act 1995 challenging the admissibility of a Crown witness, Detective Constable Kevin Plank. His evidence was objected to on two grounds:- (1) the ‘expert’ evidence of the witness was not admissible on the basis that he did not have the relevant qualifications, competence, expertise and experience necessary to provide an opinion in relation to the issues arising in the case; and (2) the witness was not an independent witness who could provide an impartial opinion based upon facts presented to him and should not be regarded as an ‘expert’. The day before the debate the judgment of the UK Supreme Court in Kennedy v Cordia Services [2016] UKSC 6 was issued in which four considerations were set out at paragraph 44 which were said to govern the issue of the admissibility of skilled evidence, only two of which were relevant in the present case, namely, whether the witness has the necessary knowledge and experience and whether the witness is impartial in his or her presentation and assessment of the evidence. The sheriff heard evidence from DC Plank and repelled the minute. The appellant appealed against that decision under section 74 of the Criminal Procedure (Scotland) Act 1995. Here it was submitted on behalf of the appellant that, in relation to the knowledge and experience of DC Plank, whilst he had a general knowledge of controlled drugs he did not have sufficient experience of the drugs in question which were all within a family of drugs known as cathinones, namely, methylethcathinone, pentedrone hydrochloride, clephedrone and dibutylone. In relation to clephedrone DC Plank had conceded, by his own admission, that he had lifted almost word for word from the Ask Frank Government funded website and, it was submitted on behalf of the appellant, that that could not amount to an expert opinion, the drug only having been recovered in Europe twice before. In relation to the issue of perceived impartiality it was submitted that there was an apparent lack of independence and impartiality on the part of the witness as he had been asked by the police to give an initial valuation of the drugs recovered and he was a member of the drug squad, both factors which gave rise to an appearance of partiality. Here the court refused the appeal. In relation to the issue of the witness’s expertise, the court considered that DC Plank’s evidence was based on sufficient expertise and knowledge to allow him to give opinion evidence about controlled drugs in general and cathinones in particular for the purposes of the present case. In relation to the question of impartiality the court did not consider that either of the factors advanced on behalf of the appellant would result in an informed observer considering that the witness was not independent or impartial and the fact that a police officer has prior operational involvement in a case does not necessarily render any subsequent opinion evidence inadmissible.