Julie Wilson v. Procurator Fiscal, Glasgow [2015] HCJAC 26

Appeal under section 174 of the Criminal Procedure (Scotland) Act 1995:- the appellant was charged on summary complaint of being in possession of cocaine contrary to section 5(2) of the Misuse of Drugs Act 1971. At a continued intermediate diet on 15 October 2014, following a telephone conversation between the appellant’s solicitor and Mr Barry Dickson at the Procurator Fiscal’s Office in Glasgow the appellant’s agent sought and was granted leave of the court to intimate late a plea in bar of trial based upon oppression. On 12 November 2014 the appellant’s agent intimated and lodged a compatibility minute stating the appellant’s intention to raise a compatibility issue within the meaning of section 288ZA(2) Criminal Procedure (Scotland) Act 1995. The issue set out in the compatibility minute was in the same terms as the oppression issue. After hearing parties at a diet of debate on 12 and 19 November 2014, the stipendiary magistrate repelled the plea in bar of trial and continued the compatibility minute to the trial diet. The stipendiary magistrate granted leave to appeal her decision repelling the plea in bar of trial, in terms of section 174(1) of the 1995 Act. The circumstances here were that the appellant’s solicitor in his conversation with Mr Dickson advised that his client’s position was that the drugs concerned belonged to her sister and were in her sister’s make-up bag which she was carrying at the time. The appellant’s solicitor and Mr Dickson discussed the terms of the summary of evidence in relation to the reasons given for the purported section 23 detention and search of the appellant. The appellant’s solicitor expressed a view to Mr Dickson that the search would not be lawful on the basis set out in the summary of evidence as the search was based solely upon the appellant appearing to be under the influence of something whilst in licensed premises and there was nothing to suggest that she was under the influence of drugs specifically and there was no basis for a reasonable suspicion that she was under the influence of drugs. Mr Dickson indicated that he was not prepared to discontinue proceedings and the appellant’s solicitor confirmed a plea of not guilty would be tendered. Subsequently, a witness statement was disclosed to the defence from one of the detaining police officers in which there was reference to the appellant’s position as it had been communicated to the officer and the officer went on to describe further conduct of the appellant which led to the officer having formed the impression that she was under the influence of drugs. It was contended on behalf of the appellant here that it would be unfair and oppressive if the respondent were permitted to proceed to trial. It was submitted on behalf of the appellant that the prosecution amounted to oppression in two respects:- (1) the appellant had been put at a disadvantage as a result of Mr Dickson having passed on to at least one of the police witnesses information as to the appellant’s version of the critical events and the defence cross-examination would no longer have the element of surprise; and (2) Mr Dickson’s actions had been improper as he had breached the confidentiality which had attached to his conversation with the appellant’s solicitor. Here the appeal was refused. The court observed that there is nothing improper in putting to a witness a particular version of events for the witness’s comment is a usual part of the precognition process. In relation to whether Mr Dickson ought to have communicated what he had been told by the appellant’s solicitor the court considered that that was a decision for Mr Dickson to make. The court observed that any suggestion that the police witnesses had been coached is an issue which can be addressed at trial when the credibility and reliability of the witnesses can be fully tested. The court considered that the stipendiary magistrate could not be criticised in relation to how the question of fairness or oppression, under the common law or in relation to the compatibility of the proceedings with article 6 of the European Convention on Human Rights, was dealt with as, unless in the most exceptional and blatant cases, these issues can normally only be determined at the conclusion of proceedings.