Mushtaq Ahmed+james Lowrie+william Mcdonald V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Eassie,Lord Hardie,Lady Paton |
| Judgment Date | 28 August 2009 |
| Neutral Citation | [2009] HCJAC 71 |
| Published date | 28 August 2009 |
| Docket Number | XC302/06 |
| Court | High Court of Justiciary |
| Date | 28 August 2009 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Eassie Lady Paton Lord Hardie | [2009] HCJAC 71 Appeal No: XC302/06 XC320/06 XC366/06 OPINION OF THE COURT delivered by LORD HARDIE in NOTE OF APPEAL AGAINST CONVICTION by (FIRST) JAMES LOWRIE (SECOND) WILLIAM McDOUGALL McDONALD (THIRD) MUSHTAQ AHMED Appellants; against HER MAJESTY'S ADVOCATE Respondent: ______ |
First Appellant: Alonzi et Mason; McClure Collins
Second Appellant: Lamb QC; Paterson Bell
Third Appellant: Shead; Capital Defence Lawyers
Respondent: Wolffe QC; Crown Agent
28 August 2009
Background
[1] On 6 February 2006 each of the appellants appeared along with other co‑accused for trial at Glasgow High Court in respect of an indictment including
inter alia the following charge:-
"(1) Between 16 July 2003 and 25 January 2005, both dates inclusive [at various specified locations in Scotland and England], and elsewhere in the United Kingdom, you MUSHTAQ AHMED, JAMES LOWRIE, WILLIAM McDOUGALL McDONALD, ROBERT THOMSON, DARYL ROBERTS, NEIL GAMBLE KIRKLAND, JOSEPH NOON and JOHN ANGUS GORMAN while acting along with Samuel Robert Stewart Balmer, a prisoner of HM Prison Kilmarnock and others meantime to the prosecutor unknown, did transfer or remove criminal property, namely various sums of money amounting in cumulo to £435,171 or thereby
CONTRARY to the Proceeds of Crime Act 2002 section 327(1)(d) or (e)"
[2] On 5 April 2006 the jury convicted each of the appellants under deletion of various locations and named individuals and under substitution of a specific sum of money in respect of each appellant. The first named appellant was convicted of charge 1, restricted to events between 30 September and 9 December 2003, involving a sum of £69,995. The second and third named appellants were each convicted of this charge restricted to events between 16 and 23 July 2003 involving a sum of £100,000.
Grounds of Appeal
[3] Each appellant relied upon an alleged error by the trial judge in admitting scientific evidence concerning the examination of bank notes. Although the note of appeal in each case expressed the ground of appeal in different terms, the point was
identical. In the note of appeal on behalf of the first appellant it was expressed in the following terms:
"The learned trial judge erred in repelling an objection to the admissibility of forensic evidence as to the condition of bank notes that were not produced in court and where no opportunity was given to the defence to examine the bank notes.
The bank notes were seized by the police on 9 December 2003. They were examined by the Crown forensic scientists sometime between 22 and 27 January 2004. The bank notes were then returned to the police who counted them on 9 February 2004 and lodged them with a bank, thereby causing the bank notes to be released into general circulation.
The evidence of the Crown forensic scientists was that the bank notes were contaminated with controlled drugs. Accordingly, the condition of the bank notes was fundamental to the proof of the Crown case. In these circumstances the bank notes should have been produced in court, or alternatively, the defence should have been given an opportunity to examine them."
This was the sole ground of appeal on behalf of the first named appellant and is hereinafter referred to as "the common ground of appeal". The note of appeal on behalf of the second named appellant contained an additional ground of appeal alleging a misdirection of the jury by the trial judge in relation to the question of concert. This ground of appeal also featured as the fourth ground of appeal on behalf of the third named appellant who relied upon two further grounds of appeal namely (a) that the trial judge erred in refusing to uphold the submission of no case to answer made on behalf of this appellant at the close of the Crown case and (b) that the trial judge erred in refusing to uphold submissions made on behalf of this appellant that the charge libelled had not been proved and that the appellant had been charged under the wrong section of the Proceeds of Crime Act 2002 ("the Act").
Proposed additional Grounds of Appeal
[4] Prior to the commencement of the hearing, counsel for the third named appellant sought leave to argue additional grounds of appeal which had been tendered to Justiciary Office the previous week and intimated to the Crown two days prior to the hearing of the appeal. Although counsel for the third named appellant had been instructed in the case for more than two years, he offered no explanation for tendering the additional grounds at this late stage. Rather counsel stated that in proffering the additional grounds he was "trying to assist the court". Senior counsel for the second named appellant tendered proposed additional grounds of appeal which had only been intimated to the Crown that morning and had been drafted in view of the proposed additional grounds on behalf of the third named appellant.
[5] In opposing the motion, the Advocate depute reminded us that the trial had concluded in April 2006 and the notes of appeal had been lodged in July and August 2006. If the additional grounds of appeal were allowed and the hearing proceeded, the trial judge would be precluded from commenting on the additional grounds of appeal. Alternatively, the trial judge could be invited to comment on the proposed additional grounds of appeal, in which case the hearing would necessarily be adjourned.
[6] Rule 15.15(1) of the Act of Adjournal (Criminal Procedure Rules) 1996 provides:
"On cause shown, the High Court may grant leave to an appellant to amend the grounds of appeal contained in the note of appeal."
As we have observed, counsel for the third named appellant failed to show any cause why we should grant leave to amend the grounds of appeal in his case and we did not consider that the reason tendered by senior counsel for the second named appellant was sufficient cause. Accordingly we refused leave to each of these appellants to amend their grounds of appeal. We respectfully agree with the opinion of Lord Carloway in Gordon v HMA [2009] HCJAC 52 concerning the procedure in solemn criminal appeals. That procedure requires practitioners to give full consideration to the possible grounds of appeal at the stage of drafting the note of appeal, thereby ensuring that the sheriff or trial judge is enabled to provide a comprehensive report on the issues to be addressed before the Appeal Court. If the spirit and intention of the procedure is observed, amended grounds of appeal will be unnecessary in all but the most exceptional of cases.
Submissions on behalf of the first named appellant
[7] Counsel submitted that the £69,995 specified in the charge of which the appellant was convicted related to a sum of money recovered from the appellant on 9 December 2003. It was necessary for the Crown to prove that this money was criminal property as defined by section 340 of the Act which is in the following terms:
"Property is criminal property if-
(a) it constitutes a person's benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly), and
(b) the alleged offender knows or suspects that it constitutes or represents such a benefit."
In terms of these provisions the Crown must establish that the money constituted the appellant's benefit from criminal conduct and that the appellant knew that it represented such a benefit. The appeal was directed to the first of these issues, namely, whether the money constituted a benefit from criminal conduct. The Crown had sought to prove this by leading evidence of a former employee of Mass Spec Analytical Ltd ("MSA"). The bank notes recovered from the appellant were not produced in court and no opportunity was afforded to his professional advisors to have them independently examined. The factual position was that on 9 December 2003 the bank notes were recovered from the possession of the appellant and between 22 and 27 January 2004 MSA examined them. On 9 February 2004 MSA returned the bank notes to the police who lodged them with a bank causing them to be released into general circulation. Prior to doing so, the police did not consult the appellant or his legal advisors. As a result of the police action, the bank notes were no longer available as a production at the trial of the appellant or for examination by or on his behalf. The actions of the police officers apparently followed the practice and procedure of Merseyside Police Force at that time.
[8] Counsel submitted that the test was not whether there had been an absence of opportunity to examine the bank notes on behalf of the appellant, but rather whether that absence had resulted in material prejudice to the appellant. (Anderson v Laverock 1976 JC 9). The contamination of the bank notes in the present case was a crucial factor which the Crown had to establish. While it was accepted that the police officers had followed normal procedure in Merseyside, their actions had precluded the appellant and his advisors from having any opportunity to have the notes examined by an independent expert. The results of the examination by MSA were known before the money had been returned to circulation. Although the appellant was released by the police without charge, it must have been apparent that there was a significant risk that proceedings would be taken against the appellant following the results of the forensic examination of the bank notes by MSA. The Crown had deprived the appellant and his advisors of access to crucial evidence and it was not known what an independent examination of the bank notes would have produced. The appellant had been deprived of the opportunity to have them examined; that had resulted in prejudice to the appellant, particularly in the present case where the condition of the money was fundamental to the Crown case. The evidence of contamination of the bank notes was the most...
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