Repeating jury manual guidance ‘no guarantee against a misdirection appeal’

A judge issued the reminder as the Criminal Appeal Court upheld an appeal by Peter McGartland on five charges of contraventions of section 4(3)(b) of the Misuse of Drugs Act 1971.

The appellant was sentenced to 30 months imprisonment after being found guilty by a jury of six charges of being concerned in supplying drugs, which were found in a parcel addressed to a serving prisoner in Kilmarnock Prison.

Lord Eassie (pictured), Lord Malcolm and Lord Wheatley heard that the parcel had contained a framed blank canvas covered in cellophane within which 29 packages of drugs were hidden, and that the accused’s DNA had been found on the knot of one of the packages.

The appeal was based on the proposition that the sheriff should have upheld the “no case to answer” submission made at the close of the Crown case, and that the sheriff “misdirected” the jury.

The Crown contended that it could be inferred that the accused was concerned in the supply of the “entire consignment” of drugs sent to the prison.

The “no case to answer” submission that there was “insufficient evidence” in relation to the 28 other packages of drugs was repelled by the sheriff, who then charged the jury in very general terms.

The judges agreed that the sheriff was entitled to reject the “no case to answer” submission, but held that the jury were “misdirected”.

When the jury came to deliberate, they sought clarification on the sheriff’s direction that the accused required to have “known that he was involved in a drugs supplying operation”, asking whether they needed to satisfy themselves beyond reasonable doubt that he was involved in the supply of each individual package of drugs, or whether the belief that he was involved in the supply of one of the drugs was sufficient to cover the charges for all on the basis of being involved in the drug supply chain.

In response, the sheriff said the charges were the same breach of the same act and that the evidence was the very same for each of the charges, adding that she could not go beyond saying that the jury had to go through each charge one by one and satisfy themselves beyond reasonable doubt that the Crown have proved that individual charge on the basis of the evidence they had accepted.

However, Lord Eassie described the sheriff’s response as “inadequate”.

“It did not really answer the jury’s questions. What the questions required were supplementary directions specifically tailored to the issue raised by those questions,” he said.

In concluding that the jury were indeed misdirected and that the misdirection was “material”, Lord Eassie observed that it was of “some significance” that the jury acquitted the appellant of charge 1 on the indictment, which alleged a contravention of section 41(1)(a) of the Prisons (Scotland) Act 1989 by introducing a drug into the jail.

Delivering his opinion, Lord Eassie said: “I consider that the jury should have been clearly 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.”

Lord Malcolm agreed with the reasoning of Lord Eassie in concluding that the appeal should be upheld to the extent that the convictions on five of the six charges should be quashed.

The judge also noted that in her report concerning the misdirection ground of appeal, the sheriff stated that she “followed closely the guidance provided to the judiciary in such matters,” referring to the jury manual produced by the Judicial Institute.

He said that while “improvisation” on the criminal standard of proof and the burden on the Crown “may well provoke an appeal”, simply repeating the terms of the jury manual was “no guarantee against a misdirection appeal”.

The manual “does not remove the trial judge’s duty to tailor the charge to the specific circumstances of the case, all with a view to giving proper and clear directions to the jury,” he explained.

Lord Malcolm’s opinion added: “The manual is no more than a first port of call, providing a useful, but non‑authoritative, checklist of points to bear in mind. Juries are entitled to a bespoke charge adapted to the evidence and to the particular issues arising in the trial.”