Appeal against cannabis growing and supplying conviction refused despite sheriff’s ‘misdirection’ on concert 

The High Court of Justiciary Appeal Court held that the concept of “art and part guilt” had “no part to play” in establishing the statutory offence under section 4(3)(b) of the Misuse of Drugs Act 1971, but ruled that the misdirections did not result in a miscarriage of justice because the evidence against the appellant was “virtually irresistible”.

The appellant had been sentenced to three-and-a-half years’ imprisonment on the production charge and six months on the supply charge, to be serviced consecutively, but the appeal judges ruled that the periods should run concurrently. 

‘Commercial cultivation’

Lord Malcolm, Lord Turnbull and Lord Pentland heard that the appellant Steven Barclay was convicted following a trial at Hamilton Sheriff Court along with his co-accused Damian Morris of two charges.

Charge 2 was a charge of being concerned in the supplying of cannabis between 11 January and 26 October 2018 at 176 and 178 Townhill Road in Hamilton, contrary to section 4(3)(b) of the 1971 Act, while charge 5 was a charge of producing cannabis between 3 August and 26 October 2018 at the same two addresses, contrary to section 4(2)(a) of the 1971 Act.

They court was told that Barclay was the owner of the flat at 178 Townhill Road and that the co-accused was the tenant, while the Morris was also the tenant of the flat at 176, which was on the same landing directly across from 178.

The evidence against the appellant arose out of a police search of 178 under warrant in March 2018, when officers discovered various quantities of the drug and paraphernalia.

During a further search of both flats in October 2018, the flat at 176 was found to have been completely given over to commercial cultivation, with 62 growing plants with a value of between £12,000 and £37,000 recovered.

There was also evidence of WhatsApp messages relating to the sale and purchase of cannabis from a mobile phone recovered from the co-accused.

‘Incorrect and confusing direction’

In his charge to the jury the sheriff considered it necessary, given the evidence that the two accused were co-operating together, to give detailed and lengthy directions on the common law concept of acting in concert, explaining that: “If people do act together in committing a crime then each participant can be responsible not only for what he himself does but for what everyone else does while committing that crime.”

The appellant appealed against his conviction and sentence, arguing that that the common law doctrine of concert did not apply to the statutory charges which featured on the indictment.

Attention was drawn to the concession made in the Crown written case and argument to this effect, insofar as a charge of being concerned in the supplying of controlled drugs was concerned.

It was contended that the same approach should be taken in relation to a charge of production brought under section 4(2)(a) of the Act.

The direction to the effect that each participant in a case of concert can be responsible not only for what he himself does but for what everyone else does while committing the crime was said to be both “incorrect and confusing” in the circumstances of the present case, as it would have permitted the messages retrieved from the co-accused’s mobile phone to be used as evidence against the appellant when it had not been proved that he had any knowledge of the messages.

It was submitted that the appellant was responsible only for his own actions and that the Crown required to prove that he was knowingly and actively participating in a drug supply operation in relation to charge 2 and in a drug production operation in relation to charge 5.

In relation to the sentence imposed it was argued that the sheriff was “wrong” to have ordered that the sentences on each charge should run consecutively, as it was effectively to “punish the appellant twice for the same conduct”.

‘No miscarriage of justice’

The judges agreed that concert had no part to play in proving the statutory charge, but ruled that the misdirection was not “material”.

Delivering the opinion of the court, Lord Turnbull said: “The interplay between the common law doctrine of concert and the terms of section 4(3)(b) of the Act has been the subject of discussion before the court on a number of occasions. 

“Of course, in any case in which a contravention of section 4(3)(b) is alleged the evidence is likely to demonstrate that the accused was involved in some fashion or another with other persons in the drug supplying operation.

“We therefore agree with the submission presented on behalf the appellant and with the concession tendered by the Crown to the effect that the concept of art and part guilt has no part to play in establishing guilt on a charge brought under section 4(3)(b) of the Act. We agree that the sheriff’s directions constituted a misdirection in relation to charge 2.

“Since the Crown did not rely on the doctrine of concert to any extent and invited attention only to the evidence implicating each accused individually, we also agree that the directions on concert given by the sheriff constituted a misdirection in relation to charge 5.”

However, he added: “The directions which the sheriff gave when dealing individually with each of charges 2 and 5 were not the subject of any criticism in the appeal. The evidence against the appellant in relation to the production charge was virtually irresistible. 

“Given the strength of the evidence to implicate the appellant in the production of cannabis at 176 Townhill Road, it would be an obvious inference that he was concerned in the supplying operation which was separately established. The various other adminicles of evidence recovered on both 13 March and 26 October further underpinned this inference. 

“In all of these circumstances we do not consider that the misdirections complained of were material, or that they resulted in a miscarriage of justice.”

The court did uphold the appeal against sentence to the extent of quashing the order that the sentences imposed should run consecutively, and ordered that the periods selected by the sheriff should run concurrently.