Pair found guilty of producing psychoactive substances fail in appeal against convictions

Scott McGaw was sentenced to five years’ imprisonment and Eric Reid was jailed for five-and-a-half years after being convicted of producing Etizolam tablets with a street value of over £1.5 million, contrary to section 4 of the Psychoactive Substances Act 2016.

The appellants argued that the trial judge erred in repelling a defence submission of “no case to answer” and that he “misdirected” the jury by stating that the evidence of their involvement in the production of the tablets prior to the 2016 Act coming into force could be used to assist in proving what was alleged to have occurred after that date.

However, the High Court of Justiciary Appeal Court refused the appeal after ruling that the trial judge had “correctly directed the jury”.

‘Psychoactive substance’

The Lord Justice General, Lord Carloway, sitting with Lord Brodie and Lord Turnbull, heard that following a trial at the High Court in Glasgow in November 2018 the appellants were convicted of a charge that, while acting along with others between 26 May 2016 and 1 March 2017 at an address in Paisley, they intentionally produced Etizolam tablets which they knew or suspected was psychoactive and which they intended to consume, or which they knew would likely be consumed by others for its psychoactive effects.

After the conclusion of the Crown case, a co-accused, Harry Ingle, pled guilty to the same charge and to supplying a psychoactive substance contrary to section 5(1) of the 2016 Act, while a fourth accused, Nicholas Conway, also pled guilty to a contravention of section 5.

Etizolam, a benzodiazepine similar to but considerably stronger than diazepam, was specifically prohibited by the 2016 Act, which came into force on 26 May 2016.

It was not disputed that, prior to that date, the appellants and their co-accused and others had been involved in the production of large quantities of Etizolam tablets at the address in the libel.

Mr Reid was a director of a company called “Vitamin Supplement Co Ltd”, which was a vehicle for the production of Etizolam rather than vitamin supplements.

He had rented the premises in September 2013, from which date supplies of the substance were obtained from China and processed at the premises by the addition of sundry adulterants and binding agents bought from suppliers in the UK, before being pressed into small blue tablets by a substantial pill press capable of producing 200,000 tablets per hour, and then packaged for sale.

Mr Ingle, who had some knowledge of chemistry, described himself as the “principal scientist” in the operation, having charge of the day-to-day running of the premises. 

Mr McGaw was involved in the financial aspects, including the purchase of the necessary chemicals, adulterants and binding agents.

When police searched the property in March 2017 it was “chaotic, unclean and had a thick layer of blue dust”, and they found Mr Ingle outside also covered in that dust, while Mr Conway, who was inside, was wearing a forensic suit and mask and weighing a large tub of the tablets.  

The pill press was pumping out tablets of Etizolam and there were large amounts of adulterant and binding agents in the premises, coupled with a vast quantity of tablets with a street value of some £1.6 million. 

‘Misdirection’

In his charge to the jury the trial judge stated that the production of the tablets was “not illegal, at least by virtue of that Act of Parliament, prior to 26 May 2016” and that “the criminal offence only became law on that date”, but added that the Crown relied, and was “entitled to rely on evidence of what they say was occurring prior to that date in order to place the evidence of what they say occurred after that date into context and to assist in proving this charge against the accused”.

The trial judge said that the evidence of what had happened after 26 May 2016 came from several sources, namely the content of joint minutes; the physical evidence of what was found on the premises during the police search; the opinion evidence of what that physical evidence represented; and the content of WhatsApp messages between the appellants and Mr Ingle.

However, the appellants appealed against their conviction, with Mr McGaw arguing that the trial judge “erred” in repelling the no case to answer submission. 

It was submitted that the judge erred in holding that the evidence of Mr McGaw’s activities, prior to the coming into force of the 2016 Act, could form part of a “circumstantial case” against him and provide the “necessary corroboration” of messages sent after that date. 

It was also argued that the trial judge “erred” in directing the jury that they were entitled to rely on the evidence of what had occurred before the coming into force of the 2016 Act in proving the charge against Mr McGaw.

Mr Reid also submitted that the trial judge had “misdirected the jury” in relation to the relevance of the production of Etizolam prior to the coming into force of the 2016 Act. 

The Crown had led no evidence that the prior actings had been unlawful, yet the judge allowed the “spectre of prior illegality” into his charge, it was argued.

‘Sufficient evidence’

Refusing the appeal, the judges observed that there was “sufficient evidence” against the appellants.

Delivering the opinion of the court, the Lord Justice General said: “The scale of the admitted operation prior to the coming into force of the Psychoactive Substances Act 2016 was relevant to the proof of a continuing operation on the same scale as was apparent when the premises were searched on 1 March 2017. 

“Having regard to the other circumstantial evidence, the jury would have been entitled to infer that the same operation, involving the same personnel, had been conducted before and after the relevant date. No objection was taken to the evidence which related to the pre-Act involvement and which was libelled as some form of culpable and reckless conduct in the docket attached to the indictment.

“The trial judge correctly directed the jury that the production of Etizolam was not illegal, at least by any Act of Parliament, prior to the relevant date and had become a criminal offence only on that date. He clearly focused the jury’s mind on the critical issue of whether the appellants had contravened the 2016 Act between the dates libelled.”

Lord Carloway added: “There was sufficient evidence against each appellant. Proof of the exchange of WhatsApp messages formed part of the case against each appellant. These messages were not in the same category as evidence of the hearsay of one accused after the commission of a crime and outwith the presence of another accused. 

“The messages were part of the commission of the offence; ie res gestae. They were capable of incriminating all of the accused, whether or not the particular accused sent or received the message. They were pieces of evidence which were capable of demonstrating what was going on and who was involved.

“The content of the messages was agreed by joint minute. The messages did not constitute a ‘single source of evidence’ which required to be corroborated. They had to be taken as having been proved. It was then a matter of what the jury was prepared to infer from their content.”

The judges also refused the appellants’ appeals against the sentences imposed.