Man found guilty of attempting to smuggle drugs into prison wins appeal against conviction

Judges in the Criminal Appeal Court ruled that the scientific evidence was “insufficient” to justify the conviction of the appellant.

Lord Eassie (pictured), Lord Malcolm and Lord Wheatley heard that the appellant David Dunbar was convicted in February 2014, along with co-accused Wayne Ernest Johnston, of a charge of being concerned in the supplying of the controlled drug diamorphine, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971.

The co-accused was also convicted of a charge of being concerned in the supplying, at the same loci and within the same period of time, of the controlled drug cocaine, but the jury acquitted the appellant of that charge.

The prosecution was brought after a suspicious package which was sent to HM Prison Saughton was examined by police officers and found to contain a plastic carrier bag within which were five books. Within the spine of each of those books was a sealed brown paper envelope, four of which contained powder which on subsequent analysis was found to include diamorphine, while the fifth contained a quantity of cocaine.

CCTV footage recovered from a post office Leith showed the co-accused entering the post office with another man – whose not guilty plea was accepted prior to the start of trial – who purchased the postal box, placed the carrier bag with the books in it, and thereafter closed, addressed and posted the package.

However, the only evidence tendered by the prosecutor in relation to the appellant was that of a forensic scientist who had examined a mouth swab taken from him and portions of the paper envelopes, including the seal area, which had been found in the spines of the books.

No other admissible evidence was offered which referred to the appellant or might link the appellant to the supply of the powders containing diamorphine or cocaine to the addressee of the postal box.

At the close of the Crown case the solicitor acting for the appellant advanced a “no case to answer” submission on the ground that the evidence as had been presented by the prosecutor was insufficient to implicate the appellant in the supply.

In rejecting that submission and allowing the case to go to the jury, the sheriff accepted the prosecutor’s contention that not only did the envelope bear the “accused’s DNA” but also that it was to be inferred that “the accused’s DNA” appeared on the envelope because he had “licked and sealed the envelope” and therefore he must have had knowledge of its contents.

The essential issue in the appeal was whether the evidence offered by the Crown was sufficient to enable conviction of the appellant.

The court was told that the evidence from the forensic scientist was that the probability of finding such a matching DNA profile if a male other than the appellant, and unrelated to the appellant, were the source of the crime scene DNA was approximately “one in four million”, but the scientist was unable to say whether the cellular material detected on the portion of the envelope was contained in saliva or any other bodily fluid.

She also accepted that the presence of the material could readily result from direct contact in other ways than the depositing of saliva or bodily fluid, and that the material could equally arrive on the envelope by secondary transfer.

Lord Eassie described that as an “important flaw” in the prosecution case.

“At the outset, therefore, the extent of the match, and the statistical probabilities spoken to by the scientist, do not in themselves provide a sufficient link to the appellant. They simply indicate a possibility that he, among an indeterminate plurality others, may be a possible source of the crime scene cellular material,” he said.

The judge – with whom Lord Malcolm and Lord Wheatley agreed – added that there was “much force” in this criticism of the sheriff’s decision to accede to the prosecutor’s contention that the “accused’s DNA” appeared on the envelope because the accused had “licked the seal”.

Delivering his opinion, Lord Eassie said: “The boundary between speculation and the drawing of an inference may sometimes be difficult to define with precision. But in this case, in which there was no evidence that the cellular material came from saliva, or was even likely to have come from saliva, I consider that inviting the jury to reach the important conclusion – crucial to the prosecution case – that the material was deposited by the licking of the seal of the envelope does indeed fall on the side of speculation.

“There was no other evidence to which the jury might have resort by way of supplement to the scientist’s evidence in order to found any inference going beyond her report of the scientific findings. But they were invited in effect to make a finding going well beyond the scientific evidence, but on no additional or other evidential material, that the cellular material from which the partial profile was extracted was indeed deposited in saliva.

“As I have already stressed, there was no other evidence whatever before the jury capable of incriminating the appellant. Had there been such other evidence, the scientific evidence regarding the matching of the DNA profile might have had some possible supportive probative value. But, in my view, on its own, the particular DNA evidence led in this case was plainly insufficient to permit the conviction of the appellant. In these circumstances, I consider that the appeal succeeds and that the conviction should be quashed.”