Peter McGartland v. Her Majesty’s Advocate [2015] HCJAC 23

Appeal against conviction:- Following a trial on indictment the appellant was convicted of six charges of being concerned in the supply of controlled drugs contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. He was acquitted of a charge of breach of section 41(1)(a) of the Prisons (Scotland) Act 1989. The appellant was sentenced to 30 months imprisonment. The appellant appealed on the grounds that the sheriff should have upheld the submission of no case to answer made at the close of the Crown case and that the sheriff misdirected the jury. The circumstances in this case were that a package addressed to a serving prisoner, LP, was received and intercepted by the authorities at Kilmarnock prison. It contained a framed blank canvas covered in cellophane. A number of packages containing controlled drugs of various kinds were hidden within the frame. Charges 2 to 7 related to different controlled drugs. In relation to charge 7 which related to a package containing the drug “TFMPP” the plastic “cling film” package in which the TFMPP tablets were contained had been found to have, at the knot, some cellular material yielding a DNA profile which had a one in 158 million match with the appellant. The forensic scientists conceded that they could not say how the DNA got on the knot, whether it was primary or secondary or whether necessarily the appellant had tied the knot. The other drugs were wrapped separately and individually packaged and there was no forensic evidence linking the appellant to the other drugs, nor to the frame and the parcel itself. Here it was submitted on behalf of the appellant that the sheriff had been wrong to refuse the no case to answer submission and there was insufficient evidence to infer that the appellant was involved in the consignment of the drugs sent to the prison. On behalf of the Crown it was submitted there was sufficient evidence of a drugs supply operation involving the whole parcel and all the drugs and the question was whether there was sufficient evidence of the appellant being concerned in that operation and from the proven circumstances, in the absence of any contrary explanation, there was. It was submitted on behalf of the Crown that the knot area was targeted because people tying knots are likely to leave DNA there and photograph show that all the packages were broadly similar and knotted concealable within the frame. The court refused this ground of appeal and observed that it is not for the appeal court to consider the strengths and weaknesses of the evidence, but rather to ask whether, on the evidence, a legitimate view of guilt could be inferred. The court considered the evidence regarding the reason for targeting the knotted area of the packages and the presence of the appellant’s DNA on that part of the polythene package which allowed the inference that he was involved in the supply of the drugs contained in that package. That knotted package was found alongside others of similar size and construction which were tightly packed and hidden in the frame, and then sent to the prison, in which his son was an inmate. The court considered that this was a case where, in the absence of any contrary explanation, that allowed the jury to reach the view that it had been proved that the appellant was knowingly participating in the whole operation. In relation to the alleged misdirection ground of appeal, however, the court allowed the appeal in relation to charges 2-6. The court considered that the sheriff’s response to a question by the jury in relation to the extent to which the jury had to be satisfied that the appellant was knowingly involved in being concerned in the supply of each drug, the court here described the trial sheriff’s response as inadequate. The sheriff had not adequately answered the question and ought to have directed the jury that for them to find the appellant guilty of each charge of being concerned in the supply they had to be directed to the effect that if a person had knowledge that he was engaged in the supply of one drug which subsequently came to be associated in a further supply along with other, different drugs, he would not be concerned in the supplying of those other drugs unless he had knowledge, or reason to believe, that the drugs which he had supplied were to be included along with those other drugs in the larger supply.