Overlapping offences and evidence of crimes (arguably) not charged

HM Advocate v Grant [2007] HCJAC 71, decided last year but issued last week, is an interesting decision on the interrelationship between the offences of supplying and being concerned in the supply of a controlled drug. Basically, the problem seems to have been this: Ms Grant was charged with being concerned in the supply of a controlled drug (diamorphine). It appeared, however, that the Crown intended to lead evidence from three witnesses alleging actual supply of the drug.

Because supplying a controlled drug and being concerned in the supply of a controlled drug are different offences (under s4(3)(a) and s4(3)(b) of the Misuse of Drugs Act 1971 respectively), Ms Grant’s agent submitted that the evidence which the Crown proposed to lead would be inadmissible. The sheriff upheld these submissions and the Crown appealed to the High Court.

This was complicated by the fact that the point had been continued from a first diet to the trial diet before being rejected by the sheriff, and there is no provision in the Criminal Procedure (Scotland) Act 1995 for an appeal from a decision at a trial diet. The court suggested that this problem could have been avoided by appointing a further diet to decide the point, but on the basis that this would be on the same day as the trial diet. I think I have seen something similar done in the High Court by a continued preliminary hearing being scheduled for the same day as a trial diet, but this is obviously an unattractive approach unless the pre-trial issue is one which will make no difference to the trial going ahead, regardless of outcome.

The court in Grant recognises this and suggests that the potential inconvenience to jurors and witnesses makes this technique undesirable. Ultimately, the problem is almost magically resolved by the court taking the view (see para 9) that in all the circumstances a (competent) Bill of Advocation in substantively identical terms could be substituted for the (incompetent) Note of Appeal, thereby sidestepping the problem on the basis that such a Bill can extend “to the review of a decision of any court of solemn jurisdiction” (Criminal Procedure (Scotland) Act 1995, s131(1)).

On the substantive issue, the court notes that in HM Advocate v Cormack 1995 JC 133, Lord Marnoch upheld a similar submission to that made on Ms Grant’s behalf, saying that it was “most unlikely that Parliament intended section 4(3)(b) of the 1971 Act to cover the actual supply of illegal drugs”. In HM Advocate v Kiernan 2001 SCCR 129, however, Sir Gerald Gordon (sitting as a temporary judge) had said that he was “not, with respect, convinced that actual supply cannot be charged as concern in supply”.

If Sir Gerald’s speculation were correct, then it would follow that the charge against Ms Grant encompassed the acts of which the Crown witnesses concerned were going to give evidence, and the defence objection would fall away. That, in substance, is what the court holds, saying (at paras 19-20):

As was held in Kerr v HM Advocate [1986 JC 41], it is not necessary for proof of a charge brought under section 4(3)(b) that evidence should be led of an actual supply of the controlled drug. But it does not follow from thus, as a matter either of definition or of logic, that evidence of actual supply by the accused is not relevant to proof that he was concerned in supplying the controlled drug. To say that something is not essential for proof of the commission of a crime is not the same as to say that it is irrelevant to such proof and therefore that the evidence in question is inadmissible. We cannot therefore support Lord Marnoch's reasoning in HM Advocate v Cormack, and must respectfully disapprove of that decision. His Lordship may have had in mind the canon of statutory construction expressio unius exclusio alterius. But that canon is "not to be applied rigidly or without careful thought for the context: it can be particularly dangerous if applied prescriptively": Craies on Legislation, 8^th. ed., p.604.

It follows from the foregoing discussion that in our opinion the sheriff fell into error in holding that the evidence in question was inadmissible because it would serve to establish that "the accused was in fact guilty of another crime". What the Crown are offering to prove, and give notice to that effect in the charge, is that as an aspect of being concerned in the supplying of the controlled drug, the respondent made actual supplies to the three witnesses. This would constitute proof, not of another crime, but of aspects of a course of conduct amounting to a contravention of section 4(3)(b).