Appeal By Julie Wilson Against Procurator Fiscal, Glasgow
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young,Lord Brodie,Sheriff Principal Derek C.W. Pyle |
| Neutral Citation | [2015] HCJAC 26 |
| Date | 11 February 2015 |
| Docket Number | HCA/2015-000139-XJ |
| Year | 2015 |
| Court | High Court of Justiciary |
| Published date | 10 March 2015 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 26
HCA/2015-000139-XJ
Lord Brodie
Lord Drummond Young
Sheriff Principal Pyle
OPINION OF THE COURT
delivered by LORD BRODIE
in
THE APPEAL UNDER SECTION 174 OF
THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
by
JULIE WILSON
Appellant;
against
PROCURATOR FISCAL, GLASGOW
Respondent:
Appellant: Collins, Solicitor Advocate; Capital Defence Lawyers
Respondent: Brown, QC; Crown Agent
11 February 2015
Introduction
[1] The appellant has been charged on summary complaint at the instance of the respondent in the Justice of the Peace Court of the City of Glasgow with, on 15 August 2013 at Bellahouston Park, Glasgow, having in her possession a small quantity of cocaine in contravention of section 5(2) of the Misuse of Drugs Act 1971. On 25 April 2014, in answer to the complaint, the appellant pled not guilty. The court adjourned the case for trial on 21 October 2014 with 23 September fixed as an intermediate diet. At a continued intermediate diet on 15 October 2014 the appellant’s agent sought and was granted leave of the court to intimate late a plea in bar of trial based upon oppression. On 12 November 2014 the appellant’s agent intimated and lodged a compatibility minute stating the appellant’s intention to raise a compatibility issue within the meaning of section 288ZA(2) Criminal Procedure (Scotland) Act 1995. As the stipendiary magistrate observes in her report to this court, the point set out in the compatibility minute is in the same terms as the oppression point. After hearing parties at a diet of debate on 12 and 19 November 2014, the stipendiary magistrate repelled the plea in bar of trial and continued the compatibility minute to the trial diet. The stipendiary magistrate granted leave to appeal her decision repelling the plea in bar of trial, in terms of section 174(1) of the 1995 Act.
[2] The appellant is represented by Mr Simon Collins, Solicitor Advocate. Mr Collins appeared before this court to move the appeal from the decision of the stipendiary magistrate. It was Mr Collins who had argued the plea in bar at trial before the stipendiary magistrate. Mr Collins was also party to a telephone call with a depute of the respondent during which Mr Collins disclosed information which, he submitted to us, was thereafter used by the depute in a way which was improper and so unfairly prejudicial to the appellant that it would be oppressive to allow the matter to proceed to trial.
Factual circumstances relied on by the appellant
[3] The circumstances founded on by Mr Collins in support of the plea in bar of trial before the stipendiary magistrate and in the appeal before us are as follows. The allegation which provides the substance of the charge against the appellant, as it appears from the summary of evidence disclosed by the respondent, is that on 15 August 2013 police officers, including Police Sergeant Blair Pettigrew, were on foot patrol within the area of a music concert in Bellahouston Park, Glasgow. Their attention was drawn to the appellant who was in the company of another woman. The officers suspected that the appellant was in possession of a controlled drug in contravention of the 1971 Act. Accordingly, they searched the person of the appellant in purported exercise of the power conferred on them by section 23(2) of the 1971 Act. They found a wrap of white powder weighing some 2.5 grams. It is alleged that the white powder was cocaine. The circumstances specified in the summary of evidence as giving rise to the police officers’ suspicion were that the appellant’s eyes appeared glazed over and her speech was slightly slurred. The white powder is stated to have been found in the appellant’s handbag.
[4] Subsequent to the service of the complaint upon the appellant, on 20 January 2014, there was a telephone conversation between, on the one hand, Mr Collins and, on the other, Mr Barry Dickson, one of the respondent’s deputes. The content of that telephone call is summarised in paragraph 3(b) of the compatibility minute as follows:
“The [appellant] instructed her solicitor to contact the Procurator Fiscal with a view to discussing the case and attempting to persuade the Procurator Fiscal to discontinue proceedings against her. The [appellant’s] solicitor thereafter contacted the Procurator Fiscal’s office in Glasgow by telephone, on 20 January 2014, and spoke with Mr Barry Dickson, Procurator Fiscal Depute, at that office. In his discussion with Mr Dickson the [appellant’s] solicitor advised Mr Dickson that the [appellant’s] position was that the drugs belonged to the [appellant’s] sister, who was with her at the time of the search, and who explained to the searching police officers that the drugs were contained within a makeup bag that the [appellant] was carrying for her. The [appellant’s] solicitor further discussed the terms of the summary of evidence in relation to the reasons given for the purported section 23 detention and search of the [appellant]. The [appellant’s] solicitor expressed a view to Mr Dickson that the search would not be lawful on the basis set out in the summary of evidence ... In particular the [appellant’s] solicitor explained to Mr Dickson his contention that the search was based solely upon the [appellant] appearing to be under the influence of something, whilst in licensed premises. There was nothing to suggest that she was under the influence of drugs specifically, and as such there was no basis for a reasonable suspicion that she was under the influence of drugs. Following upon the discussion, Mr Dickson indicated that he was not prepared to discontinue proceedings and the [appellant’s] solicitor confirmed a plea of not guilty would be tendered.”
[5] On 11 September 2014 the respondent disclosed to Mr Collins, as the appellant’s solicitor, a copy witness statement prepared by Sergeant Pettigrew and setting out his evidence. The witness statement included the following paragraphs:
“I was on duty on 15 August 2013 and my duties included a proactive plain clothed patrol within Bellahouston Park where the group “Kings of Leon” were performing. I was accompanied by police witness McFadden and Porter.
About 1640 hours I, observed the now accused enter a toilet cubicle with another female, these portable toilets are very small and I immediately formed the opinion that the accused was entering to use controlled drugs.
After a few minutes I observed the accused exit the cubicle, she was unsteady on her feet and I walked towards her I noticed her eyes to be glazed, this confirmed my suspicions that she had been using controlled drugs.
...
I have since been made aware that the accused has claimed she informed me at the time that she was holding the wrap of powder for someone else, I can confirm that this is not the case at no time did the accused make these claims.”
The consequential unfairness complained of by the appellant
[6] The substance of the appellant’s complaint that it would be unfair and therefore oppressive if the respondent were permitted to proceed to trial is set out in the following passages in paragraph 3 (d) and (g) of the compatibility minute:
“(d) …It is the [appellant’s] belief that the Procurator Fiscal Depute, as well as advising the reporting officer about the [appellant’s] defence to the charge, also advised the reporting officer of the deficiency of the detention…
(g) …as a result of the actions of the Procurator Fiscal’s Office in Glasgow, and Mr Dickson specifically, the [appellant] has been deprived of her right to a fair trial as guaranteed by article 6 (1) of the European Convention on Human Rights. The police witnesses, who are the only witnesses against the [appellant], have been advised and forewarned of the defence to be relied on by the [appellant]. The witnesses have been advised of her position at a time before they have even provided statements setting out the basis of the prosecution. Given the change in justification for the search from the summary of evidence to the statements it is the [appellant’s] position that the witnesses against her have altered their position to meet the challenges she would have raised in her defence. She has accordingly been prejudiced and has been deprived of her right to a fair trial.”
These averments were slightly elaborated upon by Mr Collins in submission. He pointed to Sergeant Pettigrew’s statement as indicating that the officer had been made aware of what had been communicated by Mr Collins to Mr Dickson during the telephone conversation on 20 January 2014. This, Mr Collins said, was unfair. Mr Dickson had forewarned Sergeant Pettigrew of what would be put to him in cross-examination. In particular he had forewarned Sergeant Pettigrew of Mr Collins’s contention that if, as appeared to be the case on consideration of the summary of evidence, the police officer had formed his suspicion of the appellant being in possession of controlled drugs on the basis of her eyes appearing glazed over and to her speech being slightly slurred, these were not reasonable grounds, given that Sergeant Pettigrew had...
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