Stephen Barclay v. Her Majesty’s Advocate [2020] HCJAC 8

Note of appeal against conviction and sentence:- At Hamilton Sheriff Court the appellant was convicted after trial on indictment of two charges:- (1) charge 2- being concerned in the supply of cannabis contrary to section 4(3)(b) of the Misuse of Drugs Act 1971; and (2) charge 5 - producing cannabis contrary to section 4(2) of the 1971 Act both offences were committed whilst the appellant was on bail. The appellant’s co-accused was also convicted of these charges. The trial sheriff sentenced the appellant to 6 months imprisonment in relation to charge 2 and 3 years 6 months imprisonment in relation to charge 5, which sentences were to run consecutively. The circumstances were that the appellant was the owner of one of the two loci referred to in the charges, with his co-accused being the tenant of that property. The second loci referred to in the charge was a flat directly across the landing of the first property. When the police conducted a search of the appellant’s property cannabis, drugs paraphernalia and items linking both the appellant and the co-accused to the property were recovered, including the appellant’s passport and driving licence. The bedroom in which the appellant’s passport and driving licence was recovered had items on the bed and on the drawers giving the impression that the bedroom was being used. Around 6 months later further searches were conducted and the appellant’s property was found to have the appellant and his wife in one bedroom and the co-accused and his girlfriend in the other. Cannabis and drugs paraphernalia were recovered including a book entitled “The Marijuana Growers Bible” in the living room and a notepad with references to weights in ounces. The other property was now a fully operational commercial cannabis cultivation operation. A set of keys was recovered from the appellant’s bedroom one of which opened the front door to the flat in which there was the cannabis cultivation. Outside the flat was a van used by the appellant which had bags of compost in it. The co-accused’s mobile phone was interrogated and some “WhatsApp” messages relating to the sale or purchase of cannabis were obtained and led during the trial. The appellant appealed against his conviction on the single ground that the trial sheriff had erred in directing the jury that the common law doctrine of concert applied. It was submitted on behalf of the appellant that the common law doctrine of concert did not apply to the statutory charges present. It was submitted that the Crown’s concession in their Written Argument for the court to that effect in relation to a charge of being concerned in the supply of drugs should apply equally in relation to a cultivation charge. It was submitted that the directions given by the sheriff in relation to concert were incorrect and confusing in the particular circumstances of the case. An example given was the “WhatsApp” messages for which there was no evidence that the appellant had any knowledge of them. It was further submitted on behalf of the appellant that the appellant ought only to be held responsible for his own actions, the critical issue being that he was knowingly and actively participating in a drug supply operation in relation to charge 2 and in a drug production operation in relation to charge 5. On behalf of the Crown it was conceded that the common law doctrine of concert is irrelevant in relation to a charge brought under section 4(3)(b) of the 1971 Act. It was submitted on behalf of the Crown, however, that in relation to the “WhatsApp” messages from the co-accused’s phone that was evidence which was relevant to establishing that there was an ongoing drug supply operation and the evidence of the appellant’s association with the co-accused at those times could allow the inference to be drawn that the appellant was also involved in that operation. It was submitted that the misdirection in relation to that one piece of evidence did not result in a miscarriage of justice. It was further submitted that in relation to a charge brought under section 4(2) of the 1971 Act different considerations applied and directions on concert could be appropriate where two or more individuals were indicted on that charge as there was a requirement to establish production. It was ultimately conceded on behalf of the Crown that in the particular circumstances of the case there had been a misdirection by the trial sheriff in light of the fiscal depute’s approach in the case which did not rely on concert bur, rather, that both accused were involved in the cultivation. It was submitted on behalf of the Crown that the misdirection was not a material one and no miscarriage of justice had occurred. In relation to the appeal against sentence it was submitted on behalf of the appellant that the sheriff had erred in imposing consecutive sentences in light of the sheriff’s view that the sentence for charge 5 was due to the commercial nature of the cultivation and, by passing consecutive sentences, the sheriff had in essence punished the appellant twice for the same conduct. Here the court refused the appeal against conviction. The court referred to a number of cases where the issue of concert and whether it applies in charges brought under section 4(3)(b). The court confirmed that the common law doctrine of concert has no part to play in establishing guilt on a charge brought under section 4(3)(b) of the 1971 Act and, as such, what the sheriff said in his directions to the jury in relation to charge 2 amounted to a misdirection. In addition, in light of the Crown approach to seeking to prove their case against the appellant at trial (i.e. not on an art and part basis) the sheriff’s directions in relation to charge 5 also amounted to a misdirection and the court did not require to fully consider whether concert may apply in charges brought under section 4(2). The court went on to consider that, notwithstanding the misdirections, they did not result in a miscarriage of justice. The court observed that this was a compelling case against the appellant. In addition, the only evidence which the misdirections may have impacted related to the “Whatsapp” messages which the court considered were of evidential significance against the appellant in that they demonstrated the existence of a cannabis supplying operation. In relation to the appeal against sentence the court considered that the sheriff erred in imposing consecutive sentences and ordered that they run concurrently with each other.