Drugs offences accused fails in appeal against admissibility of police ‘expert’ evidence

The Criminal Appeal Court upheld the sheriff’s decision to repel the objection after ruling that the officer had “sufficient expertise and knowledge” to allow him to give evidence on the drugs in question, and that he was an “independent and impartial witness”.

Lord Menzies, Lord Bracadale and Lady Cosgrove heard that the appellant Andrew Jones was charged on an indictment with a total of 11 charges involving controlled drugs, involving allegations of contraventions of section 4(3)(b) of the Misuse of Drugs Act 1971 and section 170(2) of the Customs and Excise Management Act 1979.

The case was set down for a trial before a sheriff and jury at Stirling Sheriff Court in February 2016, but appellant lodged an objection by way of minute in terms of section 71(2) of the Criminal Procedure (Scotland) Act 1995 to the admissibility of evidence of a witness whom the Crown had given notice that it intended to lead at the trial, namely Detective Constable Kevin Plank.

The sheriff had before him the UK Supreme Court judgment in Kennedy v Cordia Services, which sets out the considerations governing the admissibility of skilled evidence, and was issued on the day prior to the hearing before him on the minute.

Having heard evidence from DC Plank as to his qualifications and experience between 11 and 15 February 2016, the following day the sheriff repelled the minute, but the appellant lodged an appeal against that decision.

The first ground was that DC Plank’s evidence was not admissible as he did not have the “relevant qualifications, competence, expertise and experience necessary” to provide an opinion in relation to the issues arising in the case, and secondly, that he ought not to be regarded as an “expert” witness as was not an “independent witness” who could provide an “impartial opinion” based upon facts presented to him.

It was argued that although he had a “generalised knowledge” of controlled drugs, on the basis of his own evidence he did not have “sufficient experience” of the drugs in question, which were all within a family of drugs known as “cathinones”.

It was also submitted that some of the content of DC Plank’s report was, on his own admission, “lifted almost word for word” from the Ask Frank website and this “should not be cloaked with the respectability of an expert opinion”.

Counsel further argued that the fact that DC Plank was a member of the drug squad who was involved at an early stage of the investigation in this case gave rise to an “appearance of lack of independence and impartiality”.

And that he was only asked to provide his report by the procurator fiscal on 13 January 2016 and told that if he did not provide it by the following day the case would fall, created an “impression” that he was placed “under pressure to provide a report which would support the Crown case”.

The sheriff repelled the minute after pointing out that the jury would not form a view upon the basis of the report but by evaluating the witness’s “whole evidence”, adding that the report itself “exposes him to the prospect of considerable challenge under cross‑examination”.

Agreeing with the sheriff’s views, the appeal judges reiterated the observations of the Supreme Court in Kennedy v Cordia Services: “It is common in Scottish criminal trials for the misuse of drugs for the Crown to adduce the evidence of the policeman who has the experience and knowledge to describe the quantities of drugs that people tend to keep for personal use rather than for supply to others.”

Delivering the opinion of the court, Lord Menzies said: “What is objected to in the present case is not just the report, but the whole of the intended evidence of DC Plank. We consider that on the basis of the evidence heard by the sheriff, the attack on DC Plank’s expertise and experience is unfounded.”

The sheriff noted that the officer had undergone regular training on practices and developments in the world of illicit drug supply, and kept up-to-date with social media and online forums for drug users to look out for potential trends, as well as consulting on an almost daily basis the Scottish Police Intelligence Database for new intelligence relating to drugs, who is dealing and where, and prices paid.

“We are satisfied that the evidence of DC Plank is based on sufficient expertise and knowledge to allow him to give opinion evidence about, amongst other things, cathinones. We reject the attack on admissibility based on his experience and knowledge,” the judges said.

Lord Menzies added: “We did do not consider that an informed observer, seized of all the relevant circumstances, would infer that DC Plank was not independent or impartial because of either of these factors. The fact that a police officer has prior operational involvement in a case does not per se render his evidence of opinion subsequently inadmissible.

“The fact that the procurator fiscal only sought the report label 16 from DC Plank on 13 January and told him the case would fall if it was not provided the following day, does not reflect well on the Crown and explains many of the shortcomings which the sheriff noted in the report. However we do not consider it would cause the reasonable informed observer to conclude that the witness by producing the report in this timescale was lacking in impartiality or independence.

“In conclusion we agree with the reasoning and conclusion of the sheriff. We can find no error of law in his approach to this matter and this appeal is accordingly refused.”