Note Of Appeal Against Conviction And Sentence By Lieuwe Hoekstra And Jan Van Rijs And Ronny Van Rijs And Hendrik Van Rijs V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord McCluskey,Lord Kirkwood,Lord Hamilton |
| Court | High Court of Justiciary |
| Date | 28 January 2000 |
| Docket Number | C213/97 |
| Published date | 28 January 2000 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
| Lord McCluskey Lord Kirkwood Lord Hamilton
| Appeal Nos: C213/97 C212/97 C226/97 C254/97 OPINION OF THE COURT in NOTE OF APPEAL AGAINST CONVICTION and SENTENCE by LIEUWE HOEKSTRA, JAN VAN RIJS, RONNY VAN RIJS and HENDRIK VAN RIJS Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellants: Mr. Van Bavel, Gebbie; Anderson Strathern: Mr. Pen, McLaughlin; Anderson Strathern: Mr. Jahae, Gilday; Macafee: Dr. Sjöcrona, Nelson; Macafee
Respondent: F.J. McMenamin, Q.C., A.D.; Crown Agent
28 January 2000
The Background to the Appeals
On 29 July 1996 two vessels were boarded in the North Sea by officers of H.M. Customs & Excise. One, the "Ocean Jubilee", was boarded in territorial waters off the north coast of Scotland. The other, the "Isolda", was boarded on the high seas. The occupants of the Isolda were the present appellants, four Dutch nationals. They were arrested on suspicion of having committed crimes or offences against the law of the United Kingdom by shipping a cargo consisting of three tonnes of the drug cannabis resin, in bales, to a rendezvous in the North Sea at which the bales were to be, and were, transferred to the Ocean Jubilee, which was to transport them on to the United Kingdom. On 25 November 1996 the present appellants were brought to trial in the High Court of Justiciary on a charge of being knowingly concerned in the attempted fraudulent evasion of the prohibition in force with respect to the importation into the United Kingdom of cannabis resin under section 3(1) of the Misuse of Drugs Act 1971, contrary to the Customs & Excise Management Act, 1979, section 170(2)(b). There was an alternative charge against these appellants; it was departed from during the trial. There were five others (the British accused) facing charges on the same indictment, the Crown case being that their role included making and carrying out arrangements for conveying the drugs from the rendezvous at sea to the United Kingdom in order to complete and effect the fraudulent evasion of the said prohibition. Of the five, two, Gary John Hunter and Roderick McLean Senior, sailed the Ocean Jubilee to the rendezvous point in the North Sea where, according to the Crown case, the two vessels met and, over a period of about 23 minutes, the drugs were transferred from the Isolda. The Crown case against the other three, Roderick McLean Junior, Kenneth Corrigan and Brian Silverman, was that they assisted in the operation by making necessary preparations on the mainland of the United Kingdom in connection with the intended landing of the cargo there and its handling thereafter. Gary John Hunter, Roderick McLean Senior and Kenneth Corrigan faced an additional charge relating to the setting fire to the Ocean Jubilee when officers of Her Majesty's Customs & Excise attempted to board that vessel, and to related matters. The trial of all nine accused began at the High Court, sitting at Dunfermline, on 25 November 1996. In the course of the trial the Crown sought and was granted leave to amend the indictment, but the first alternative to the first charge remained, libelling a contravention of section 170(2)(b) of the Customs & Excise Management Act 1979. Roderick McLean Senior eventually pled guilty to this charge and another charge but only after all the evidence had been led; he did not give evidence. Kenneth Corrigan was acquitted by the jury. All the others were convicted by the jury on 20 February 1997. The trial diet was adjourned for sentence until 13 March 1997. At that adjourned diet Lieuwe Hoekstra, the first-named appellant, and Jan Van Rijs, the second-named appellant, were each sentenced to 14 years' imprisonment, backdated to 29 July 1996. Ronny Van Rijs, the third-named appellant, and Hendrik Van Rijs, the fourth-named appellant, were each sentenced to 10 years' imprisonment, also backdated to 29 July 1996. The other convicted accused also received long prison sentences.
The procedure in the Appeals
The four present appellants sought and obtained leave to appeal. For convenience, they may be referred to in this Opinion by name. Hendrik Van Rijs appealed against sentence only when he first sought and obtained leave to appeal. The British co-accused who had been convicted by the jury also appealed against conviction. Their appeals were dealt with separately and were disposed of in December 1998: cf. Hunter & Ors. v. H.M. Advocate 1999 S.C.C.R. 72. The appeals of Hunter and McLean Junior were refused. Silverman's appeal was allowed and his conviction quashed. The Crown were given authority to bring a new prosecution. They did so and Silverman was again convicted at the High Court sitting in Dunfermline on 24 March 1999.
The full details of the initial stages of the present appeal process are not narrated here, because the appellants, not being satisfied with the advice and services of those then representing them, ceased to be represented by them. They eventually engaged the services of other lawyers and, with the assistance of certain of the lawyers now acting for them, lodged proposed replacement Grounds of Appeal in or about May 1999. On 7 July 1999 the Court allowed those Grounds of Appeal to be substituted for the earlier Grounds and, on the understanding that the hearing of the appeals would be likely to take several weeks, appointed the appeals to be presented in stages, the first stage to be restricted to the particular Grounds specified in the court's interlocutor of 7 July 1999. In the period immediately prior to the date of the hearing of the first stage of the appeals various other procedural steps were taken on behalf of the appellants: the appellants lodged in the appeal process several Devolution Issue Minutes and Petitions to the nobile officium of the Court. In consequence, the eight days set aside for the presentation of the appeals so far as based on the Grounds specified in the interlocutor of 7 July 1999 were largely devoted to hearing submissions from the appellants' lawyers and from the Crown relating to the Devolution Issue Minutes and the Petitions.
At the hearing of the appeals, which commenced on 23 November 1999, each of the four appellants was represented by a Dutch advocate, and each Dutch advocate was assisted by a member of the Faculty of Advocates. All were instructed by Scottish solicitors. As the appeal hearing progressed certain of the matters raised in the Minutes and Petitions were resolved or not insisted upon. The Devolution Issue Minute of Lieuwe Hoekstra dated 12 November 1999, relating to the trial judge's alleged failure to give reasons for his decisions in relation to legal submissions made to him on 4 and 9 December 1996, was not insisted upon. The same appellant's Petition to the nobile officium of the High Court of Justiciary, dated 12 November 1999 and relating to the same matter, was also not insisted upon. None of the other appellants advanced this submission. It is accordingly unnecessary to narrate the facts and submissions relating to those matters. Additional Grounds of Appeal for Ronny Van Rijs and Hendrik Van Rijs were tendered in November 1999; as these raised no new matter we shall allow these new grounds (15 and 16) to be added to those already allowed.
The matters that remained live for the decision of the Court will be considered in this Opinion. They comprise the matters raised by the six remaining Devolution Issue Minutes. We shall also consider the Grounds of Appeal that were argued at this hearing. Although each appellant was separately represented, those appearing for the appellants had reached an understanding in terms of which each Dutch advocate would present one branch of the submissions and, to avoid repetition, the others would adopt those submissions insofar as relevant to their clients' Grounds of Appeal and Minutes. Junior counsel also presented submissions on a similar basis.
It is appropriate to begin by summarising the evidence admitted at the trial upon which the Crown sought and obtained the convictions of the four appellants and the four others. This summary is partly based upon that set forth in the Opinion of the Court in Hunter v. H.M. Advocate.
The evidence - a brief summary
The Crown case was that the operation to import the cannabis resin in to the United Kingdom was to be furthered by means of the transfer of those drugs at a pre-arranged rendezvous point in the North Sea from the Isolda, which had sailed from Cadiz, Spain, to the west of Ireland and north of Scotland, to the Ocean Jubilee, which had sailed from Wick crewed by McLean Senior and Hunter. No evidence was adduced to show when and how the drugs were loaded onto the Isolda. After the Ocean Jubilee had re-entered United Kingdom territorial waters carrying the drugs, she was boarded, with some difficulty, by customs officials and brought to a Scottish port for examination. The Isolda was boarded on the high seas on the same day. The movements of the two vessels had been the subject of surveillance operations by Officers and agents of H.M. Customs & Excise.
There was evidence that on 11 May 1996 McLean Senior went to Seville. He took with him a card which bore a code word 'Eric' and a reference to 'channel 8'. (The Crown maintained that the latter referred to a ship-to-ship radio communication channel and the former was the name used by him when later the two vessels were communicating). On 16 May 1996 Hunter also travelled to Seville. In early June, McLean Senior and McLean Junior, his son, travelled to an address in London from where two telephone calls were apparently made to Spain. One of these calls was to a person known as 'Alf', who the Crown suggested was the organiser of the venture. In London the McLeans were given a lift in a BMW motor car, which was later seen to be parked beside a Renault Espace vehicle, which was registered in the name of Silverman. On 12 June 1996 McLean Senior purchased...
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