Thomas Porter V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Kirkwood,Lord Penrose,Lord Wheatley |
| Court | High Court of Justiciary |
| Date | 23 November 2004 |
| Docket Number | XC446/03 |
| Published date | 23 November 2004 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Kirkwood Lord Penrose Lord Wheatley
| Appeal No: XC446/03 OPINION OF THE COURT delivered by LORD KIRKWOOD in APPEAL against CONVICTION and SENTENCE by THOMAS PORTER Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: M. Scott, Q.C., Latif; McClure Collins
Respondent: G. Mitchell, A.D.; Crown Agent
23 November 2004
[1]On 12 May 1997 at the High Court in Kilmarnock Thomas Porter (hereinafter referred to as "the appellant"), who appeared along with four co-accused, was convicted of a contravention of section 170(2)(b) of the Customs and Excise Management Act 1979. The charge was in the following terms:
"(2)between 1 September 1996 and 29 November 1996, both dates inclusive, at Peterhead, Kilwinning, London, Torquay, Pembroke, Troon Harbour, and elsewhere in the United Kingdom, in Cadiz, Spain, on the sea off the coat of Morocco, and on board the motor vessel Cirrus on the seas between Morocco and Troon, you IAN SMITH HOOD, ROBERT THOMAS McELWEE, FORBES DUNCAN COWAN, THOMAS PORTER and JOHN SMITH, were in relation to goods, namely Cannabis Resin, a controlled drug of Class B specified in Part II of Schedule 2 to the Misuse of Drugs Act 1971, knowingly concerned in the fraudulent evasion of the prohibition in force with respect to the importation of said controlled drug under Section 3(1)(a) of the Misuse of Drugs Act 1971: CONTRARY to the Customs and Excise Management Act 1979, Section 170(2)(b);".
The appellant was sentenced to 14 years imprisonment back-dated to 29 September 1996.
[2]An outline of the evidence relevant to the charge is set out in the trial judge's report. During the summer of 1995, William MacKenzie, a fisherman with a skipper's certificate, was introduced to the accused Cowan and the appellant. At that meeting the appellant asked if MacKenzie was willing to take a boat to sea, pick up a quantity of cannabis from another ship and land it in this country. The appellant mentioned possible landing sites, including Troon. He suggested that MacKenzie would be paid some £800,000 and that the amount of cannabis involved would be about 12 tonnes. MacKenzie suggested that the cargo could be landed in fish boxes disguised as "black fish", that is fish illegally brought ashore in excess of the permitted quota.
[3]MacKenzie thereafter thought better of this proposal and decided to inform the police who put him in touch with the Customs and Excise. His contact had the code-name Frank. Thereafter, MacKenzie received a few telephone calls from Cowan about the subject but no definite arrangements were made. In about October 1996, the appellant contacted MacKenzie and asked him to come to London. MacKenzie travelled to London where he was met by the appellant who took him to a pub where he was introduced to Smith. Smith gave him a mobile phone and a football programme which he was to use for encoding messages. An arrangement was made for MacKenzie to sail to Morocco and pick up a cargo of cannabis offshore. MacKenzie pretended that he owned a fishing boat, although at that time he did not. Nevertheless he agreed to the arrangement. The cannabis was to be brought to Troon where it would be loaded onto two vans, one to go to Glasgow and one to go to London. Smith gave MacKenzie an atlas and showed him where, in the sea off Morocco, the pick-up was to be made. He said that the exact latitude and longitude would be given over the mobile phone. He further said that the Moroccan police had been taken care of and would not be a problem. The amount involved was to be 3 tonnes and MacKenzie was to receive £300,000. The appellant gave MacKenzie £200 and told him to fly back to Glasgow. At the airport there he was met by Cowan who took him to Peterhead. Cowan gave him a bag containing £5,000.
[4]MacKenzie contacted Frank and told him what had happened. Frank asked MacKenzie to come to Glasgow. Frank instructed MacKenzie to go along with the plan. MacKenzie had been told to phone the appellant and Smith when he had arrived in the south of England with his boat. Frank put arrangements in hand for the Customs and Excise to supply a fishing boat and crew. Frank and MacKenzie travelled to Torquay to await the arrival of the boat. From there MacKenzie phoned the appellant. From then on all telephone calls were recorded by officers of Customs and Excise. MacKenzie was given two phone numbers using the football programme code. One was to phone Smith when he was on the way out and the other to phone the appellant when he was on the return journey. He told the appellant that he was experiencing bad weather and had not yet reached the south of England. Thereafter a number of phone calls took place between MacKenzie and the appellant in which MacKenzie made a variety of excuses for not having arrived. In particular, it was said that the boat had suffered damage and required repairs to be carried out before the voyage to Morocco. This was a delaying tactic to allow the Customs and Excise time to equip a boat and plan the operation.
[5]By 16 October 1996 that had been done and the boat had arrived at Torquay. The skipper was a Customs officer with the code-name George. MacKenzie and George phoned Smith and the appellant who by that time had also arrived in Torquay. A meeting was arranged at which MacKenzie explained that the boat actually belonged to George. The appellant and Smith were far from happy at this situation. A number of further meetings then took place and eventually Smith and the appellant accepted that George's boat would be used and the parties agreed to meet later in Cadiz. The boat sailed from Milford Haven loaded with 100 fish boxes. It was crewed by Customs and Excise officers with MacKenzie on board. It sailed to Cadiz. In Cadiz George and MacKenzie met with Smith who introduced them to Hood. He told them that Hood would be going with them. He gave them a geographical position off the coast of Morocco and a call sign and code word to be used when they were met at sea.
[6]At the prescribed location the customs boat was eventually met and a cargo of hessian sacks containing "soap bars" of cannabis resin was transferred. During the journey back to the United Kingdom the "soap bars" were unloaded from the hessian bales and placed into the fish boxes. Newspapers were placed on top of them. Hood was fully involved in this operation and was clearly aware of what the cargo was. The boat sailed to Troon and made contact with the appellant. He arranged for the cargo to be off-loaded at night at the fish harbour. He hired a van and drove with Cowan and McElwee to the harbour. The fish boxes containing the cannabis resin had been unloaded onto the dock when they arrived. They proceeded to load them into the van when they were intercepted by officers of Customs and Excise.
[7]The "soap bars" of cannabis resin amounted in total to 3 tonnes. Evidence was given by an experienced drugs squad officer as to how such a quantity would be distributed throughout the country through a network of dealers until it had been broken down into very small quantities to sell to those who used the drug. Care would have to be taken in this process as 3 tonnes was a very large quantity. It could have cost over £1,000,000 to purchase such a quantity of drugs in Morocco. Split into end-user quantities, the street value could be between £15,000,000 and £20,000,000.
[8]The appellant appealed against conviction and sentence and subsequently lodged an amalgamated Note of Appeal containing seven grounds of appeal. The present hearing was concerned with the first three grounds.
[9]The appellant died on 10 December 2002 and in terms of section 303A(1) of the Criminal Procedure (Scotland) Act 1995 his surviving spouse was authorised to continue the appeal which had been instituted by the appellant.
Ground of appeal 1
[10]The first ground of appeal was in the following terms:
"(1)Wrongful Admission of Evidence
The learned Trial Judge erred in repelling the objection taken to the admission of tape-recorded telephone conversations between the Appellant and the Crown witnesses MacKenzie and 'George'. The basis of the objection taken at Trial was that (a) the recordings were unfairly obtained; and (b) the said recordings were inadmissible under the Interception of Communications Act 1985. They had been made in breach of S1 of the said 1985 Act. As such, they fell to be excluded (see Transcript Vol.2 at p 45). Esto the recordings were not in breach of the said 1985 Act, they were obtained in a manner designed to circumvent the statutory provisions and, in particular, provisions which required that a Warrant be obtained for interception of public telephone calls, and as such the evidence of the recordings ought not to have been omitted (sic). Transcripts of the said recordings fell to be excluded along with the tapes.
The Learned Trial Judge, in repelling the objection, failed to have proper regard to the issue of fairness in this particular context and to the purpose of the said 1985 Act (Transcript Vol.2 at p105)."
[11]The objection was made by counsel then representing the appellant, and debated on 7 and 8 April 1997, in the course of the evidence in chief of the witness MacKenzie. At the stage at which the issue was raised evidence had not yet been led before the court that there had been recordings of telephone conversations, nor of the means adopted to make any recordings. But the documentary productions lodged by the Crown included transcripts from which it was clear that recordings had been made. The advocate depute informed the trial judge that the mechanics had been "by means of a device whereby one simply sticks a microphone on to the end of a telephone handset". The officer who made the recordings, and who was in the telephone box with MacKenzie, was the undercover Customs and Excise officer "Billy".
[12]Billy gave evidence on 22 April 1997. He explained that...
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