Silverman v Hm Advocate
| Jurisdiction | Scotland |
| Judgment Date | 11 December 1998 |
| Date | 11 December 1998 |
| Docket Number | No 17 |
| Court | High Court of Justiciary |
JC
L J-C (Cullen), Lord Kirkwood and Lord Hamilton
Procedure—Solemn procedure—Judge's charge—Misuse of drugs— Concerned in attempted fraudulent evasion of prohibition in respect of importation of cannabis resin—Judge referring to defence case as “tale”—Whether misdirection—Whether miscarriage of justice
The pannel was convicted, inter alia, of the intended importation of cannabis resin. One pannel gave evidence to the effect that his only involvement with a co-accused was in respect of the sale of a car. The trial judge (Lord Dawson) stated to the jury in his charge that it was entirely for them to assess the truth, or otherwise, of “this tale” in light of all the evidence that might have appeared to involve the the pannel in whatever way in a drugs smuggling activity of the co-accused. His Lordship thereafter stated that “again you will bear in mind the demeanour of [the pannel] in the witness box and decide whether you think you can place your trust in what he says, or whether you have any reasonable doubt about it. You will no doubt bear in mind the evidence and the observations of the Advocate-depute that if he is telling the truth then he is the victim of a virtual catalogue of unfortunate, if not fantastic, coincidences.” On being convicted the pannel appealed to the High Court of Justiciary.
Held (1) that the trial judge had not only referred to the pannel's defence as “this tale” but also had set that explanation against the evidence of various activities on the part of his co-accused, most of which were not in dispute which implied that the pannel's explanation was inherently improbable; (2) that the presentation of the matter in this way to the jury appeared to reflect the view of the trial judge himself; so that (3) a miscarriage of justice had occurred; and appeal allowed.
Brian Silverman was charged on an indictment along with several co-accused at the instance of the Right Honourable the Lord Hardie, QC, Her Majesty's Advocate, the libel of which set forth, inter alia, a charge of knowingly being concerned in the attempted fraudulent evasion of the prohibition in force in respect of the importation of cannabis resin, contrary to sec 170(2)(b) of the Customs and Excise Management Act 1979.
The pannel pled not guilty and the cause came to trial before Lord Dawson and a jury in the High Court of Justiciary at Dunfermline.
After trial, the pannel was convicted.
The pannel thereafter appealed to the High Court of Justiciary.
The cause called before the High Court of Justiciary, comprising the Lord Justice-Clerk (Cullen), Lord Kirkwood and Lord Hamilton for a hearing.
At advising, on 11 December 1998, the opinion of the court was delivered by the Lord Justice-Clerk (Cullen).
Opinion of the Court—The appellants, along with six co-accused were tried in the High Court of Justiciary. The trial commenced on 25 November 1996. At its conclusion on 20 February 1997 the appellants were found guilty of the first charge as amended. This was a charge that they were knowingly concerned in the attempted fraudulent evasion of the prohibition in force in respect of the importation of cannabis resin, contrary to sec 170(2)(b) of the Customs and Excise Management Act 1979. The jury's verdicts in respect of the appellants Roderick McLean, Junior and Brian Silverman were by a majority. Their verdict in respect of the appellant Hunter was unanimous. He was also found guilty, under a deletion, of the second charge, which was a charge of attempting to defeat the ends of justice.
As regards the co-accused, Roderick McLean, Senior pled guilty to the two charges at the conclusion of the evidence. Kenneth Corrigan, who faced only the first charge, was acquitted. The remaining four co-accused, who also appeared only in respect of the first charge, were convicted.
The appellants have appealed against their convictions. The remaining co-accused who were convicted by the jury have also appealed against their convictions, but since those appeals raise separate issues and have required a longer time for preparation, it was argued, with the approval of the court, that the appeals of the present appellants should be heard and determined separately, leaving the remaining appeals to be dealt with in due course.
The Crown case was that the intended importation of cannabis resin, which amounted in value to over £10m, was to be achieved by means of the transfer of those drugs at a pre-arranged point in the North Sea from a ketch, “Isolda”, which had sailed from Cadiz and round the west and north coasts of Scotland, to a vessel, “Ocean Jubilee”, which had sailed from Wick and was crewed by McLean, Senior and Hunter. After that vessel had re-entered United Kingdom territorial waters, she was boarded, with some difficulty, by customs officials and brought to a Scottish port for examination. The movements of the two vessels...
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...(Simpson v HM Advocate 1952 JC 1, LJG (Cooper) at 3; Jones v HM Advocate 1995 SLT 787, LJC (Ross) at 789; Silverman v HM Advocate 1999 JC 117, LJC (Cullen) at 121; Clark v HM Advocate 2000 JC 637, LJG (Rodger) at para [7]). The matter required to be judged objectively (Harkness v HM Advocat......
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...Justice General Cooper in Simpson v. H. M. Advocate 1952 J.C. 1 at p. 3 and applied recently, for example, in Silverman v. H. M. Advocate 1999 J.C. 117 at p. 121, we are accordingly satisfied that, in this respect, the Sheriff misdirected the jury. [8]The appellant was sentenced to two year......
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