Scott McGaw and Eric Peter Reid v. Her Majesty’s Advocate [2019] HCJAC 78

Notes of appeal against conviction and sentence:- On 27 November 2018, at Glasgow High Court, the appellants were convicted of intentionally producing a psychoactive substance, namely, Etizolam  contrary to section 4 of the Psychoactive Substances Act 2016. At the close of the Crown case a co-accused, namely Harry Ingle, had pled guilty to the same charge and to an additional charge supplying, or offering to supply, a psychoactive substance contrary to section 5(1) of the 2016 Act. Another co-accused, Nicholas Conway, also pled guilty to a contravention of section 5. The appellants appealed against their convictions and the second appellant appealed against his sentence of 5 ½ years imprisonment. The first appellant was sentenced to 5 years imprisonment. It was submitted on behalf of the first appellant that the trial judge erred in repelling the no case to answer submission, in particular, that the trial judge erred in holding that the jury were entitled to have regard to the evidence of the first appellant’s activities prior to the coming into force of the 2016 Act, and that it could form part of a circumstantial case against him and provide the necessary corroboration of the various incriminating messages sent after that date. The second ground of appeal on behalf of the first appellant related to alleged misdirections by the trial judge in directing the jury that they were entitled to rely on the evidence of what had occurred before the coming into force of the 2016 Act in proving the charge against him and they should have been directed to ignore the evidence. It was further submitted that Mr Ingle pled guilty at the close of the Crown case, albeit the plea had been agreed around a week earlier, and despite the pleas having been agreed, the Crown still led evidence of Mr Ingle’s involvement before and after the relevant date some of which was prejudicial to the first appellant and reference was made to Beacom v HMA 2002 SCCR 33. On behalf of the second appellant it was contended that the trial judge had misdirected the jury in relation to the relevance of the production of Etizolam prior to the coming into force of the 2016 Act and the judge’s directions on the evidence relating to the pre and post 2016 actings was unfairly characterised by the trial judge. A further ground of appeal on behalf of the second appellant related to the conduct of the Crown in light of the timing of the plea and the discussions that had taken place between he Crown and counsel for Mr Ingle. The Crown had led evidence relating to Ingle which was prejudicial to the second appellant. It was submitted that if the agreed plea had been made known then objection could have been taken to the evidence sought to be adduced by the Crown. On behalf of the Crown it was submitted that in relation to he evidence relating to the period before the coming into force of the 2016 Act no objection was taken to its admissibility prior to or during the trial. It was submitted that the involvement of the appellants prior to the coming into force of the 2016 Act was available as part of the circumstantial case against them, in particular, it would have been open to the jury to infer that the first appellant’s financial involvement and the second appellant’s lease were such that they would not walk away from the production of Etizolam even after it was criminalised. In relation to the evidence relating to Ingle it was submitted that it was competent and relevant against the first appellant and the Crown were not prevented from leading evidence about the activities of a co-accused who had pled guilty. According to the Crown, Ingle’s position had been that Etizolam was a medicinal product and he was not willing to plead guilty until it was proved otherwise. It was submitted that Beacom was distinguishable as it related to the content of a co-accused’s police interview and in the present case it had always been intended to lead evidence of Ingle’s involvement in order to place the communications between Mr Ingle and the first appellant in context. Here the court refused the appeal. The court considered that the Etizolam production operation prior to the coming into force of the Psychoactive Substances Act 2016 was relevant to the proof of a continuing operation on the same scale as before. The court considered that it was open to the jury to infer that the production operation had been conducted before and after the relevant date and noted that no objection had been taken to the leading of that evidence. The court also noted that the trial judge had made it clear to the jury that the critical issue for them to determine was whether the appellants had contravened the 2016 Act after it had come into force. The court also considered that in the circumstances of the case until Ingle pled guilty the Crown were entitled to lead such evidence of his guilt as they considered appropriate. It was clear that Ingle only intended to tender a plea of guilty after the conclusion of the Crown case to avoid being called by the Crown as a witness and it was not a situation where the Crown had deliberately not accepted a plea of guilty to enable them to lead evidence which would not have been properly led in a trial involving the appellants. In relation to the second appellant’s appeal against sentence it was submitted on behalf of him that the sentence of 5 ½ years was excessive. The court refused the appeal against sentence. The court considered that there was a justifiable basis for imposing a greater sentence in relation to the second appellant than that imposed in relation to the first appellant. The court considered that the trial judge was best placed to make that distinction. In particular, the trial judge noted that the second appellant had been involved from the beginning and throughout the operation, that it was his company that had fronted the operation, and was the tenant of the premises and paid the rent and it was he who the others deferred to.