Jacqueline Anne Johnston v. Her Majesty’s Advocate [2015] HCJAC 118

Note of appeal against conviction and sentence:- On 2 March 2015, at Falkirk Sheriff Court, the appellant was convicted after trial on indictment of two contraventions of section 4(3)(b) of the Misuse of Drugs Act 1971, namely, being concerned in the supply of amphetamine, a class B drug, in relation to one day (charge 1) and phenazepam, a class C drug, in relation to 6 months (charge 2). The appellant was sentenced to 3 months imprisonment in relation to charge 1 and 18 months imprisonment in relation to charge 2, to run concurrently with each other. The appellant appealed against both conviction and sentence. The circumstances were that the appellant was at home in Bo’ness. Her son resided with her occasionally and he had a history of drugs offences. The police attended at the appellant’s home address to execute a section 23 search warrant which had been sought in relation to her son. During the course of the search drugs and drug paraphernalia were found in the house and in the appellant’s car. The drugs found were wraps of amphetamine which were found in the bedroom of the appellant and a freezer bag containing a quantity of blue tablets which was found in the living room. Within the appellant’s car there were three white plastic tubs wrapped in carrier bags and each tub contained around 1000 blue phenazepam tablets. In addition, the appellant was found to be in possession of £255 and a mobile telephone. In advance of the trial objection was taken to the evidence of a DC Fraser Gordon who was to be called by the Crown as an “expert”. Prior to the trial the sheriff repelled the objection to the admissibility of that evidence and that decision was appealed here. It was submitted on behalf of the appellant that DC Gordon did not have the relevant qualifications, expertise or experience to give opinion evidence and his evidence ought not to have been admitted. It was submitted that DC Gordon was not a member of the Statement of Opinion Unit (STOP Unit). On behalf of the Crown it was submitted that DC Gordon did have the necessary experience to provide the opinion evidence which he did. Here the court refused the appeal against conviction. The court considered that DC Gordon’s evidence was similar to the police evidence given in the cases of White v HMA 1986 SCCR 224 and Ul-Haq v HMA 1987 SCCR 433 and that simply because a police officer is not a member of the STOP Unit does not necessarily preclude them from giving opinion evidence in relation to drugs cases. In relation to the appeal against sentence it was submitted that the appellant was a 52 year old woman who had a very short schedule of previous convictions and only one prior contravention of the Misuse of Drugs Act 1971 for a contravention of section 5(2) in 2011 for which she was admonished. In relation to the phenazepam the appellant had been supplying a terminally ill friend with the drug. The criminal justice social work report had stated that the appellant was suitable for a community based disposal. It was submitted that taking the appellant’s personal circumstances into account and the 4 months and 5 days she had spent in custody before being granted interim liberation the sentence imposed on charge 2 was excessive. Here the court allowed the appeal against sentence and described the circumstances of the case as unusual and in the whole circumstances decided that the sentence on charge 2 was excessive. The court quashed the sentence of 18 months imprisonment on charge 2 and substituted a sentence of 9 months’ imprisonment.