High Court quashes drug supply conviction after Crown accepts jury misdirection argument

Lady Dorrian

About this case:

• Citation:
  2022 HCJAC 13
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lady Dorrian

It was argued by the appellant, Patrick Hattie, that the trial judge had given insufficient directions to the jury regarding his interview with the police. The appellant had been convicted of 3 contraventions of the Misuse of Drugs Act 1971.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Pentland and Lord Matthews. Donald Findlay QC appeared for the appellant and A Prentice QC for the Crown.

Failed to direct

During the trial, evidence was led that the appellant had rented a yard in Shotts from which he ran a body repair and paint shop. In November 2018, he contacted a transportation firm to arrange the delivery of a compressor to a fake business. Later, a container that had been picked up from the appellant’s yard was seized by the police and found to be packed with drugs. The Crown position was that the compressor and the container were the same item.

The appellant denied knowing about the drugs at trial and stated during a police interview that he knew nothing about any container on his property nor about the van used to pick it up aside from having lent the man who hired it £200 to help him get back on his feet. The jury were invited to consider that the appellant had been an unwitting and innocent dupe in the supply operation.

In his charge to the jury, which was accompanied by separate written directions, the trial judge gave the usual directions about what the Crown required to prove for a charge of being involved in the supply of illicit drugs. It was submitted for the appellant that, given what he had said in his police interview, the circumstances brought into play a statutory defence under section 28 of the 1971 Act, and the jury ought to have been directed on this.

The statutory defence argument was rejected by the High Court, however another issue arose in respect of the trial judge’s use of written directions and method of delivering initial directions to the jury at the start of the case. It was accepted by the Crown that the trial judge had completely failed to direct the jury on the use which could be made of the police interview with the appellant.

Fleeting allusion

Delivering the opinion of the court, Lady Dorrian said of the appellant’s police interview: “The pre-trial direction did not make reference to the appellant’s police interview, and seems in any event more to be directed towards statements made by an accused person in ordinary conversation. The appellant’s police interview was played to the jury. He did not give evidence, and the whole substance of his defence was contained in the police interview. The jury were given no guidance on the matter at all.”

She continued: “In our view the advocate depute was correct to say that, in the circumstances of this case, this was a material misdirection which could not be cured. A verdict returned on the basis of such a serious omission can only be considered to amount to a miscarriage of justice.”

Noting that the trial judge had not read the written directions to the jury at the start of the trial, Lady Dorrian said: “It is not helpful, as happened in this case, for the trial judge to deliver the pre-instructions in a lengthy, verbose, discursive fashion. It is even less helpful to deliver those directions orally and yet issue the jury with the specimen written directions which have not been read to them and to which only fleeting allusion is made.”

She went on to say: “In this case, given that there had been a clear and serious misdirection on the police interview, the issue of whether a material misdirection resulted from the provision of different written and oral directions at the same time did not arise, but it is difficult to see that the effect of these would have been other than highly confusing for the jury.”

Lady Dorian concluded: “The charge must be designed for the individual trial and to help the jury address the specific issues arising in it. In this case the charge as a whole failed to do that. It does not engage with the true issues in the case. It is formulaic and lacks the approach, which has repeatedly been emphasised, that requires a bespoke charge which engages with the specifics of the particular trial and the particular issues that arise for decision.”