Sheriff’s misdirection on police opinion evidence in drugs case did not lead to miscarriage of justice

The Appeal Court of the High Court of Justiciary agreed that the sheriff’s failure to provide guidance to the jury about how they should evaluate the opinion evidence of the STOP officer was an “error”, but ruled that there was no “miscarriage if justice” because there was an “abundance” of incriminating evidence against the appellant.

Lord Menzies, Lord Brodie and Lady Clark of Calton heard that the appellant Darrell Mitchell, 44, went to trial in August 2016 together with his former co-accused and nephew, David Buchanan, at Kilmarnock Sheriff Court on an indictment containing four charges of being concerned in the supply of, respectively, cocaine, cannabis, cannabis resin and methylethcathinone.

On the second day of the trial, David Buchanan pled guilty to charges three of the four charges, but the appellant maintained his plea of not guilty to all charges and lodged a special defence of incrimination against his co-accused.

Statement of Opinion

The Crown led David Buchanan and other witnesses, including Police Sergeant Kenneth Simpson who gave evidence under reference to a report entitled “Statement of Opinion” (the STOP report) in relation to drugs and certain other articles which had been seized by other police officers in the course of their investigations.

The jury, by a majority verdict, found the appellant guilty of charge 1 and by a majority found charges 2, 3 and 4 to be not proven; charge 1 being to the effect that he and his former co-accused had been concerned in the supply of cocaine.

On behalf of the appellant, it was submitted that the sheriff had failed to direct the jury about the use of opinion evidence. She had identified what was meant by direct evidence and circumstantial evidence but she had said nothing about opinion evidence. In particular, she had failed to direct the jury as to how they should evaluate the opinion evidence of the STOP officer, and how his evidence might be used in the determination of the issues in the case.

Misdirection

The Advocate Depute conceded that there had been a misdirection by way of an omission to say anything about the function of expert evidence. However, there had been no miscarriage of justice. By the time the case went to the jury the issue was not whether there had been an operation for the supply of controlled drugs, rather it was whether the appellant was concerned in that operation, and there had been “ample evidence” implicating the appellant as being concerned in the supply of cocaine.

The sheriff accepted that, other than instructing the jury to treat all witnesses in the same way, “whether they are lay people, police officers, scientists”, she gave no specific directions as to expert evidence.

The appeal judges observed that the jury was left with “no guidance” as to what they were entitled to make of the apparently authoritative opinions of Sergeant Simpson on the various matters in respect of which he was invited to express a view, which was an error on the part of the sheriff.

No miscarriage of justice

Delivering the opinion of the court, Lord Brodie said: “What was required was a relatively brief explanation of the nature and purpose of Sergeant Simpson’s evidence and the distinction between his function as a witness and the jury’s function as decision-makers.

“The following points should have been made about the sergeant and his evidence: his function was to provide general information based on his special knowledge and experience of matters with which the jury would not be familiar with a view to assisting the jury in assessing the primary evidence led in the case; he was to be treated in the same way as any other witness in the sense that it was for the jury to assess his evidence in order to determine whether they believed his evidence and whether they found it reliable; because of the sergeant’s special knowledge and experience (if accepted by the jury) he might be asked to give an opinion as to what might be inferred from the primary evidence; the jury were however free to accept or reject such an opinion, or indeed anything else said by the witness; and, while the jury were entitled to have regard to what the witness had to say, the decision as to whether it had been proved beyond reasonable doubt that the accused had been concerned in the supply of any of the controlled drugs referred to in the charges was for the jury and for the jury alone.”

However, the judges held that there had not been a miscarriage of justice.

Lord Brodie explained: “Having rehearsed the police officer’s evidence, the sheriff told the jury that it was their decision as to whether a charge had been proved. In the circumstances of this case, where there was no competing expert testimony, no dispute as to the accuracy of the factual matters spoken to by Sergeant Simpson and the issue had come to be not whether there was an operation for the supply of controlled drugs (including cocaine) but whether the appellant was concerned in that operation and in respect of what drugs, the sheriff’s failure to give a direction on the STOP officer’s evidence was not material.

“There was an abundance of evidence before the court for the jury to draw the necessary inference that the appellant was involved in supply, and their verdict was discriminating in that the appellant was only convicted of the charge of concern in the supply of cocaine; he was acquitted of the charges relating to the other controlled drugs. A number of highly incriminating items were found in the van owned and driven by the appellant and the garage which he rented and for which he held the key.”