Patrick Hattie v. Her Majesty’s Advocate [2022] HCJAC 13

Note of appeal against conviction:- Following a trial at the High Court the appellant was convicted of three charges of being concerned in the supply of controlled drugs, namely, cocaine, cannabis and cannabis resin contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. The appellant appealed against his conviction on the basis of alleged inadequacies in the trial judge’s directions. It was submitted on behalf of the appellant that what the appellant said in his police interview (the appellant did not give evidence at trial) brought into issue the statutory defences under section 28 of the 1971 Act under reference to Aiton v HMA 2010 JC 154 and the trial judge’s directions to the jury were inadequate on this matter. It was further submitted that the trial judge’s use of the written directions and method of delivering his initial directions to the jury at the start of the case and the judge’s reference in those initial directions to concert were inadequate and resulted in a miscarriage of justice. The Crown ultimately indicated that it could not support the conviction on account of the failure by the trial judge to direct the jury on the use which could be made of the police interview of the appellant, albeit the Crown did not accept that section 28 was a live issue at trial. Here the court allowed the appeal. The court agreed with the Crown that on the basis of the appellant’s police interview no issue arose of a statutory defence under section 28. In relation to the appellant’s police interview in the course of his pre-trial directions, the trial judge said “evidence of what an accused person was heard to say is evidence in the case, and again I will direct you about that matter if it arises”, however, there was no further mention of statements made by an accused person either in the opening directions or in the charge and the issue was compounded by the judge saying that the general rule was “that it is what a witness says in court which matters”. The court noted that the appellant’s entire defence was contained in the police interview and the absence of directions were material and such a serious omission amounted to a miscarriage of justice. The court also noted that in his opening remarks the trial judge made reference to concert and in Salmon v HMA 2002 SCCR and Barclay v HMA 2020 JC 175 it is stated that the concept of art and part guilt has no part to play in establishing guilt on a charge brought under section 4(3)(b) of the Act. In relation to the written directions and the pre-instruction by the judge reference was made to concert. Here the court stated that the written pre-instruction directions should be exactly the same as those spoken by the judge and in the present case they were different, the written directions which were distributed were not read whereas the more convoluted ones prepared by the judge were read but not provided in writing. The court considered that the effect of this would have been highly confusing for the jury, however, in light of the serious misdirection in relation to the appellant’s police interview, it was unnecessary for the court to conclude whether the reference to concert and the different oral and written directions given amounted to material misdirections. The court reiterated that the charge must be tailored for each individual trial to assist the jury to address the specific issues arising and that in the present case the charge as a whole failed to do that.