Act: Jackson QC; CM Mitchell; Capital Defence; Liam O'Donnell & Co

Alt: Allan QC, Crown Agent

7 November 2008

The background circumstances

[1] The appellant was indicted, along with five other persons, on an indictment containing six charges, all brought under section 4 (3) (b) of the Misuse of Drugs Act 1971. The appellant pled not guilty and went to trial at Glasgow High Court between 27 August and 9 September 2004. In due course, the appellant was convicted on charges (1), (3), (4) and (5). In each case, the libel had been restricted to a period between 12 November and 3 December 2003. Each of these charges libelled a contravention of section 4 (3) (b) of the 1971 Act at specified locations, which were 58 Whitelees Road, Cumbernauld, 81 Victoria Road, Falkirk, Logan, Ayrshire, Old Inn Services, A80, Cumbernauld, Bo'ness Road, Chapelhall, Airdrie and elsewhere in the United Kingdom. Charge (1) related to cocaine, charge (3) to nitrazepam, charge (4) to cannabis resin and charge (5) to ecstasy. During the course of the trial, the Crown withdrew the libel against three of the appellant's co-accused. Another of them pled guilty to a restricted libel in terms of charge (1) and a co-accused, Barry Smyth, was convicted on the same charges as the appellant, but over a period between 12 and 21 November 2003.

[2] In a Note of Appeal under section 109 (1) of the Criminal Procedure (Scotland) Act 1995, the appellant set forth five grounds of appeal against conviction and a ground of appeal against sentence. By an interlocutor of this court, dated 23 February 2007, the court allowed an additional Note of Appeal to be received containing a single further ground of appeal.

[3] At the outset of the hearing before us it was indicated that senior counsel for the appellant did not intend to argue grounds 1 and 4 in the original Note of Appeal. Thus it is unnecessary to consider them further. The other grounds of appeal, which he did argue were, as regards the original Note of Appeal, in the following terms:

"(2) The learned trial judge erred in refusing a defence submission made at the close of the Crown case that the evidence introduced by the Crown of a statement made by a deceased witness, John Stroner and contained within a transcript production 59 should not be considered by the jury, the interpretation of the material contents of that statement being significant and central to the Crown case and not supported by other evidence. In particular, there was no evidence to support the criminative inference to be drawn from said statement that the appellant had instructed Stroner to be concerned in the supply of drugs (see the charge page 22, line 19 to page 29, line 5).

(3) The learned trial judge erred in refusing a defence submission that there was insufficient evidence in law which would entitle the jury to convict the accused in respect of any charge of concern in the supply of controlled drugs. In particular the Crown failed to adduce any evidence that the appellant was knowingly concerned in the supply of controlled drugs. ....

(5) In addressing the jury the learned Advocate depute invited the jury to draw specific inferences from the plea of guilty tendered in the course of the trial by a co-accused. Said invitation had no basis in law. To be cured the prejudice caused by such invitation required to be cured by a specific direction. The conditional direction given by the learned trial judge at page 31, line 17 to page 32, line 5 again taken with the direction at page 33 lines 1 to 9 is insufficient. In the absence of such direction in the circumstances of this case the appellant has suffered a miscarriage of justice."

The sole ground of appeal in the additional Note of Appeal, to which we have referred, is in the following terms:

"(1) It is respectfully submitted that there was a failure by the Crown to fully disclose information pertaining to the deceased witness John Stronach a.k.a. John McLaughlin, in relation to previous convictions and his outstanding cases at the time of the trial. The evidence of this witness was led at trial by way of the procedure set out in section 259 (5) of the Criminal Procedure (Scotland) Act 1995 as amended. The evidence of this witness was central to the Crown case. (see ground 2 of the existing Note of Appeal). The Crown has now, after repeated requests, disclosed both the appellants (sic) full schedule of previous convictions and full details of outstanding charges that the appellant (sic) had at the time of his death. The failure on the part of the Crown to disclose to the defence the existence of all the previous convictions and outstanding charges resulted in the defence being unable to prepare and properly conduct their defence and the result was that the appellant did not receive a fair trial, as guaranteed by Article 6 (1) of the European Convention on Human Rights."

Submissions of the appellant

[4] Having indicated which grounds of appeal were to be argued, senior counsel for the appellant commenced his submissions with a consideration of ground (3) in the original Note of Appeal, concerned with sufficiency of evidence. He intended then to proceed to ground (2), followed by ground (1) in the additional Note of Appeal. That was linked to ground (2) of the original Note of Appeal. Thereafter he would turn to ground (5) in that Note.

[5] Dealing with ground of appeal (3) senior counsel said that the case was purely a circumstantial one, so far as the appellant was concerned. Despite that, it was contended that there had been insufficient evidence against the appellant. In developing his argument, senior counsel drew our attention to what was said at page 10 of the trial judge's report to this court in relation to this ground. He said that there was no challenge to the trial judge's legal approach. There had been clear evidence of drug trafficking involving the co-accused Barry Smyth, who had been convicted on the same charges as the appellant, but over a reduced period. The point made was that there was never any direct linking of the appellant to drugs. There was no evidence that the appellant was ever in possession of drugs, nor that he was present when drugs were found. No paraphernalia had been found in the appellant's house. There was no statement implicating him, nor was there any forensic evidence to do so. It was accepted that there had been certain links between the appellant and those who plainly had been involved in drug trafficking, but they had been insufficient to justify conviction of the former.

[6] Senior counsel then proceeded to examine the linkage which the trial judge indicated had caused him to decide to repel the appellant's submission of no case to answer on the charges on which he was convicted. The first of these was that on 20 November 2003 the appellant had visited Smyth's flat and spent some time there. On the following day, the flat had been searched and a large quantity of controlled drugs found within it. The second alleged linkage related to what were claims to have been "drug runs". Cocaine had been found in a car driven by Stronach, now deceased. He had been the driver of a Peugeot car on 24 November 2003 and in a Mercedes car driven by another co-accused on 27 November 2003. The alleged linkage was that the Peugeot car had been at the appellant's house earlier in the day on 24 November 2003. There was a statement in terms of section 259 of the 1995 Act by Stronach, in which he stated that "Stevie" had sent him to sell the car in Ayrshire. There had been a serious issue of credibility in relation to that matter. A further factor relied upon by the Crown had been that, a few days later, on 27 November 2003, the appellant had been involved in securing the release of Stronach from custody. The Crown alleged that the appellant was thus shown to have been linked to two persons involved in drug running. Another factor relied upon by the Crown was the circumstances surrounding the Mercedes car. Two other co-accused had been in the car, with one as the driver. Controlled drugs had been found in the car. They had journeyed to Logan near Cumnock. The car had been at the house of the appellant earlier on the day in question. Thus it could be seen that the Crown's case against the appellant was cumulative in nature. It was said that he had links with three of those persons involved in the drug trafficking. It was submitted that that could not be a proper basis for guilt under section 4 (3) (b). The question was whether or not that basis for the Crown's case could be supplemented by other evidence. One of the features of that evidence was that the appellant had been associated with a number of mobile telephones. There was also evidence concerning letters recovered in the house of the appellant on 3 December 2003. It was submitted that those letters did not bear the interpretation placed upon them by the police.

[7] If the Crown was saying that the appellant had been concerned in the supply of controlled drugs, it was necessary for them to show how he had been concerned. In that connection reliance was placed on Kerr v Her Majesty's Advocate 1986 S.C.C.R. 81. There had to be shown to be some rational involvement, not simply presence or association with proved drug traffickers.

[8] Senior counsel then turned to support ground of appeal (2) in the original Note of Appeal. It was submitted that where an application was made under section 259 of the 1995 Act and where the requirements of that provision could be shown to have been satisfied, the judge had no discretion as to whether the relevant evidence could be led. However, a trial judge had a duty to consider the fairness of the trial in relation to such evidence. If he considered that the fairness of the trial would be irretrievably damaged, he might require to desert it. Alternatively, he might require to give appropriate directions in relation to the evidence concerned. In this connection senior counsel relied upon Nulty v Her Majesty's Advocate 2003 S.C.C.R. 378, Daly v Her Majesty's Advocate 2003 S.C.C.R. 393, McKenna v Her Majesty's Advocate 2003 S.C.C.R.399 and Campbell v Her Majesty's Advocate 2003 S.C.C.R. 779. Particular reliance was placed on paragraph [35] of the opinion of the court in Nulty v Her Majesty's Advocate. The submission made on behalf of the appellant was that the trial judge should have directed the jury that they should not consider the evidence admitted under section 259. What he had done was to give certain other directions about it only. The question was whether the evidence concerned was "decisive" or "of critical importance", in terms of the authorities relied upon. Those expressions related to the weight to be given to the evidence in the circumstances, not the fact that it might be essential for the purposes of corroboration. Thus, the more important the evidence was, the less likely it was that it could be used consistently with trial being fair in terms of Article 6 of the European Convention.

[9] Senior counsel then turned to consider the evidence involved. It included the statement that Stronach had been asked to go to Kilmarnock by the appellant. It was submitted that that was, on any view, important, indeed decisive evidence. Without that evidence, there had not been a sufficiency against the appellant. Assuming that submission were wrong, fairness demanded its exclusion from consideration by the jury. If the court took the view that there was a sufficiency of evidence, it was that material that created that situation. It was the only direct link between the appellant and the drug trafficking operation involved, as opposed to the persons involved in it. The giving of an instruction by the appellant to Stronach was highly significant, indeed crucial. In the circumstances, the trial had not been fair and the resulting convictions ought to be quashed.

[10] Senior counsel moved on to consider the ground of appeal contained in the additional Note of Appeal, which related to a Crown failure to disclose information pertaining to the deceased Stronach. The Crown conceded that they had not disclosed previous convictions and outstanding charges relating to him, despite being requested to do so. These convictions were of a serious nature. Three out of four of them were for crimes of dishonesty. The first, in 1985 was a conviction under solemn procedure in Paisley Sheriff Court of reset. The second, in 1987 was a conviction for theft by opening lockfast places under summary procedure in Glasgow Sheriff Court. The third was a conviction for assault and robbery in 1997 in the High Court of Justiciary in Edinburgh and the fourth was a conviction for assault and breach of the peace in Cumbernauld District Court in 2002. Several cases were outstanding against Stronach at the time of his death in December 2003. Two of these related to alleged contraventions of the Misuse of Drugs Act 1971. Others involved alleged Road Traffic Act offences and theft by housebreaking. Senior counsel acknowledged that he could not know precisely what use would have been made of this material, had it been available at the trial to the appellant's advisors. However, it could be said that the previous convictions involving offences of dishonesty would undoubtedly have been deployed. It could have been contended upon that basis that Stronach was an out - and - out dishonest person. It was unfair for Stronach's evidence to be made use of without disclosure of this material. In this connection, senior counsel relied upon McClymont v Her Majesty's Advocate 2006 S.C.C.R. 348 and Holland v Her Majesty's Advocate 2005 S.C.C.R 417, particularly what was said at paragraph [72].

[11] Finally, senior counsel supported ground of appeal (5) in the original Note of Appeal. The Advocate depute at the trial had surprisingly attempted to rely on the plea of guilty by one of the appellant's co-accused; Barry Smyth had tendered a plea of guilty to charges (1) and (3), which had not been accepted by the Crown, as appeared from page 133 of the transcript of the proceedings. Another co-accused James Bruce had had his plea of guilty accepted. The matter had been dealt with by the trial judge at page 31 of his charge to the jury. It was accepted that the judge directed the jury that they should not draw any inference or conclusion from pleas by co-accused. However, senior counsel submitted that what had occurred was prejudicial to the appellant and that the direction given by the trial judge had not cured the prejudice thereby caused. For that reason also the appellant's convictions should be quashed.

Submissions of the Crown

[12] The Advocate depute moved the court to reject all the grounds of appeal argued, since no miscarriage of justice had occurred. He commenced his submissions with a response to ground (3) in the original Note of Appeal ,which raised the issue of sufficiency of evidence. His submission was, in short, that, in this circumstantial case, there had been sufficient material to entitle the jury to reach the verdict which they did, so far as the appellant was concerned. It was trite to say that, where there were different strands of evidence relied upon in a circumstantial case, it was not necessary that each strand should itself be of an incriminating nature. The essential point was that, when taken together they required to create a picture of involvement in the crimes alleged. In this case, the material available created a picture of involvement on the part of the appellant in a drug trafficking enterprise. The evidence had placed him in intimate proximity with those shown to have been directly involved. The jury had been quite entitled to draw the inference that they did as to his involvement. Where the trial judge in his report to this court at page 11 set out the evidence relied upon, the important features were the time of the association between the appellant and other persons and, particularly, the association with Barry Smyth. The trip to Logan was particularly important. It was evident from the evidence that the appellant had been the common factor in the activities of others. It had been contended on the appellant's behalf that the Crown had to show how the appellant had been concerned in the supplying of controlled drugs. If that meant that it was necessary for the Crown to demonstrate precisely the nature of his involvement, that submission was rejected. The legislation was couched in wide terms. It was unnecessary for the Crown to specify, either in the indictment, or in evidence, exactly what function a person was performing in the business of the supply of controlled drugs. A person might be a facilitator in some way. His particular role might not be capable of precise categorisation. The Crown's submission was that there had been sufficient evidence against the appellant, leaving out of consideration the statement by the deceased Stronach. Prominent among that evidence was the evidence relating to mobile telephones. There had been evidence from a drugs squad officer that possession of several mobile telephones was important where a person desired to avoid the traceability of his communications. The appellant had possessed four mobile telephones and six S.I.M. cards, some useable on a pay as you go basis. Calls made on the latter were untraceable and allowed anonymous communication. There also had to be considered the letters found in the appellant's house. The jury were entitled to have regard to the interpretation of those letters given in evidence by police constables Thompson and Stitt. That interpretation was that the written material related to unlawful transactions in controlled drugs. That was the case regardless of the truth of what was said in the letters; it was a legitimate inference that could be drawn from the form of the letters. They were comparable to "tick lists", which were commonly employed to prove involvement in transactions in controlled drugs. In addition to this evidence, there had been evidence, not referred to in the trial judge's report showing that the appellant had been seen driving several difference motor cars on different occasions. It was submitted that the frequent use of different cars could give rise to the inference of involvement in clandestine activity. That was evidence given by a police officer. In the whole circumstances this ground of appeal ought to be rejected.

[13] The Advocate depute turned next to ground of appeal (2) in the original Note of Appeal. He submitted that the trial judge had been quite correct as to how he dealt with the matter of the evidence introduced under section 259 of the 1995 Act. He agreed with the exposition of the law provided by senior counsel for the appellant. The difficulty was to assess the importance of the evidence so introduced. The word "decisive" derived from decisions of the European Court of Human Rights and had to be approached with caution. The importance of the evidence had to be a matter of judgment for the trial judge. If that was so, he must be afforded a reasonable discretion as to how to deal with such material. There was plainly a range of possible responses. The trial judge was under an obligation to admit the statement, but had to keep the fairness of the trial under constant review following upon that. He had plainly acted in that way and had dealt with the matter appropriately by giving the directions that he did. The trial judge's directions were to be found between pages 22 and 27 of the transcript of his charge. The Advocate depute submitted that these directions were accurate and quite adequate to highlight the great care required in evaluating the evidence of Stronach in the statement spoken to by police officers. Indeed the jury were invited to consider specifically whether the statement of Stronach was incredible as regards many of the matters with which it dealt. The jury had been free to make of the statement what they would; they were told to be very careful; the dangers attached to the statement were pointed out. Looking at the whole circumstances, it could not be said that the trial had been rendered unfair by this material not having been excluded from the jury's consideration.

[14] The Advocate depute went on to make submissions on ground (1) in the additional Note of Appeal. It was conceded that disclosure had not been made of Stronach's previous convictions, or outstanding cases. The Advocate depute said that he might have made the suggestion that, unless the appellant's legal advisors had requested the material concerned, it did not require to be disclosed. That was wrong. It was accepted that there was an obligation to disclose the material regardless of that being requested. Accordingly, the Crown's submission was that the materiality of the undisclosed information was not such as to prevent or undermine the defence mounting an attack on the credibility of the maker of the statement admitted under section 259 of the 1995 Act. It was fair to say that the incredibility of Stronach was a matter which was not in dispute in any way, with the exception of that part of the statement which had been relied upon at the trial by the Advocate depute. Even though much of what Stronach had said might be thought to be incredible, it did not follow that he could not tell the truth in relation to that part of the statement. That was so even though he had the convictions, details of which had now been disclosed. It had been acknowledged that he had told the police lies in the course of his interview with them. Thus the question had to be asked what could the defence have said about him that was not already said. As things were, without disclosure timeously, his credibility was a serious issue in the case. The court should distinguish between this case, where the propensity for dishonesty was manifest in the evidence and some other case where a witness occupied no such position; in such a case as that, previous convictions of crimes of dishonesty could be more significant than they would have been in this case. Thus while there may have been a breach of the obligation of disclosure arising out of Article 6 of the Convention, the fairness of the trial had to be looked at in the light of the whole circumstances. Doing that, it was submitted that the trial had been fair.

[15] The Advocate depute dealt finally with ground of appeal (5) in the original Note of Appeal. He emphasised that the submission made by the trial Advocate depute referred to in this ground of appeal was quite wrong and should never have been made. That state of affairs had been recognised by the trial judge. In the course of his general directions, he said that matters of evidence were for the jury. More particularly, in the transcript of his charge at pages 31 and 32, the trial judge directed the jury that they should ignore the Advocate depute's contention. This direction could not have been clearer, although it was brief. It was to be supposed that the jury would follow the directions given to them in this regard. It could not be said that there had been a miscarriage of justice on account of some residual effect of the objectionable passage in the Advocate depute's speech to the jury. In all the circumstances the appeal should be refused.

The decision

[16] We deal first with the issue raised in ground of appeal (3) in the original Note of Appeal, that of sufficiency of evidence. It is plain from the evidence in the case and it was a matter of concession that the case against the appellant was a circumstantial one. At page 11 of his report to this court the trial judge outlines the Crown case against the appellant. He points out that there was evidence of association on the part of the appellant with persons, places and motor vehicles which were linked to drugs in large quantities. There was evidence of association between the appellant and the co-accused Barry Smyth. Smyth had called at the house of the appellant on his return from Logan on 12 November 2003. On 20 November 2003 the appellant had visited Smyth's flat and spent some time there. On the following day the flat was searched and a large quantity of controlled drugs was found within it. The trips to Logan on 24 and 27 November were demonstrated to be drug runs. On each occasion a large consignment of cocaine was found in the car involved. Similar amounts of cocaine were recovered in the Peugeot car driven by Stronach on 24 November 2003 and in the Mercedes car used by the co-accused Bolton and Bruce on 27 November. The car driven by Stronach had been parked in the driveway of the appellant's house earlier in the day on 24 November. On 27 November, the Mercedes which had been used to transport cocaine from Logan had been at the house of the appellant earlier in the day. Furthermore, the appellant had been associated with a significant number of mobile telephones and SIM cards. Those circumstances were described as significant in police evidence. In addition, there was the evidence relating to the form of the letters recovered in the house of the appellant on 3 December 2003, as interpreted by Detective Constables Thompson and Stitt. These were productions 19, 20, 21 and 22. Looking at the foregoing material, we have reached the conclusion that there was sufficient evidence available against the appellant to justify his conviction on each of the charges (1), (3), (4) and (5). We consider that a corroborated case existed against the appellant, without the necessity of taking into account the evidence of the statement given by Stronach, admitted under section 259 of the 1995 Act. In reaching our conclusion we regard the letters recovered from the appellant's house, to which we have referred, as of particular significance. The form of those letters, as explained in police evidence, was redolent of involvement in drug transactions. Accordingly we reject this ground of appeal.

[17] Turning next to ground (2), it is appropriate to note that there was no dispute regarding the law between senior counsel for the appellant and the Advocate depute. In Nulty v Her Majesty's Advocate the Lord Justice Clerk considered the procedural implications of section 259 of the 1995 Act in paragraphs [35] - [37] of his opinion. In paragraph [35], he recognised that, there being no discretion under the section in a trial judge to exclude hearsay evidence that qualified under its terms, there was a continuing duty on the trial judge to consider carefully the fairness of such evidence as the trial progressed. In paragraphs [36] and [37], he considered the various options available to a trial judge ranging from desertion of the diet to the giving of directions to the jury, either to disregard the hearsay evidence, or to treat it with caution, having regard to the dangers inherent in such evidence. What the trial judge in the present case decided to do was to give directions to the jury in relation to the hearsay evidence of Stronach, which are to be found at pages 22 - 27 of the transcript of his charge. What he did therefore was to leave the evidence admitted under section 259 for the consideration of the jury, subject to the careful directions which he gave. The issue in this case appears to us to be whether that decision has led to a miscarriage of justice in the particular circumstances of the case, taking the form of an unfair trial.

[18] In Campbell v Her Majesty's Advocate, detailed consideration was given to the circumstances in which the placing of hearsay evidence, which could not be cross-examined before the jury, might lead to an unfair trial and hence a miscarriage of justice. We consider that it is pertinent, in the context of this case, to quote what was said in paragraph [15] of the opinion of the court in that case, delivered by Lord Hamilton, as he then was. There he said:

"The general rule under the Convention is that an accused person should have the opportunity of examining or having examined witnesses against him. That rule is not, however, an absolute right. It has been recognised that a fair trial may take place, notwithstanding that not every witness against the accused has been made available for questioning. As Miss Scott drew to our attention, the language used by the European court in applying Article 6 (3) (d) has varied. No single formulation has been adopted. The indications, however, from the most recent cases are that a violation of the right to a fair trial will or may arise if the conviction has been based solely or to a decisive degree on statements made by persons whom the accused has not, at any stage, had the opportunity to examine or have examined. In Luca v Italy (2001) 36 EHRR 46 a conviction for a drugs offence was based solely on statements made by a person to the public prosecutor before the trial; neither the accused nor his lawyer was given an opportunity at any stage of the proceedings to question that person. In considering whether there had been a violation of Article 6 (1) and (3) (d) the court at paragraph 40 observed that, in accordance with earlier authority, there were occasions on which it was necessary in certain circumstances to refer to depositions made during the investigative stage but 'where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6'. A violation was found to have occurred in that case.......

[16] Most of the situations in which it has been held by the court that there had been a violation of Article 6 (1) and (3) (d) could not arise in Scotland. Against the requirement for corroboration of all crucial facts, a conviction could not be based solely on the evidence of a single witness, whether in primary or secondary form. Violations of the Convention right have been established where the principal witness against the accused has not been made available for questioning or, in circumstances where there have been a number of principal witnesses, where none of them has been made so available. No case was cited to us in which a violation was held to have occurred in circumstances where the accused had had the opportunity to question or have questioned the complainer or other direct or central witness and other supporting evidence was in statement form. "To a decisive extent", as used in the European authorities, appears to be concerned with the significance of the evidence as a matter of weight. It is not concerned with any rule that a conviction cannot be based on a single source of evidence. The fact that the hearsay is required to meet the rule about corroboration does not of itself render that hearsay 'decisive' in the European sense.

[17] In these circumstances we are not persuaded that in every case in which hearsay evidence is a necessary ingredient of the Crown's corroborated proof there will be a violation of Article 6 (1) and (3) (d)......".

[19] Against the background of the guidance contained in the passage quoted, it is necessary to consider whether the convictions recorded against the appellant were based solely or to a decisive degree on hearsay evidence from a person whom the appellant had no opportunity to examine or have examined. This plainly involves the assessment of the significance of the hearsay evidence from Stronach as a matter of weight. In considering ground of appeal (3), we have already concluded that sufficient evidence was available to support the charges on which the appellant was convicted without the hearsay evidence from Stronach. Thus, that evidence was in no way essential to the Crown case even for the purpose of providing corroboration of other evidence from witnesses who were examined. Thus, in our opinion, it may be said that the preponderant evidence in support of the Crown's case came from witnesses other than Stronach. Looking at that situation and at the nature of the circumstantial case available against the appellant, we have reached a conclusion that the Crown's use of that hearsay evidence associated with the directions given to the jury concerning it by the trial judge, has not resulted in an unfair trial. In these circumstances the use of that evidence in the context has not resulted in a miscarriage of justice. We reject this ground of appeal.

[20] We now consider ground of appeal (1) in the additional Note of Appeal, which is concerned with the failure of the Crown to disclose the previous and outstanding cases in relation to John Stronach. It is to be observed from this ground of appeal that the contention that the appellant's trial was unfair is based upon the failure of the Crown to disclose fully information pertaining to Stronach's previous convictions and his outstanding cases at the time of the trial. We consider that, in this context, a distinction has to be made between previous convictions and outstanding cases. While, in appropriate circumstances, the existence of previous convictions may be of importance in connection with the preparation of a defence and to the challenge that may be mounted to the credibility of a witness, we do not consider that the same may be said of outstanding cases. Where an individual is charged with crime, he or she is presumed to be innocent until proved guilty. If a case is outstanding, necessarily no verdict has been reached in it. In these circumstances we have insuperable difficulty in understanding how information relating to those matters could be properly deployed in the conduct of a defence.

[21] However, the position is plainly different in relation to previous convictions. In Holland v Her Majesty's Advocate 2005 S.C.C.R. 417 in paragraph [72] Lord Rodger of Earlsferry made certain observations which are of relevance in the present context as regards the disclosure of previous convictions. He said:

"Although it is open to the defence to apply to the court for an order for production, the scheme envisaged by the Book of Regulations places procurators fiscal and Crown counsel in the invidious position of having to judge the relevance of previous convictions to a defence, the lines of which the accused's representatives are generally under no obligation to reveal. In reality, however, the scheme is more deeply flawed since it is obvious that a reasonably competent defence agent or counsel, considering how to approach the examination or cross-examination of a witness, would wish to know whether the witness had any previous convictions and, if so, their nature. Indeed it is precisely the kind of thing he would want to know. What use, if any, the agent or counsel chooses to make of the information is a matter for him and he may well not be able to decide until he actually has it. But, at the very least, the information will help in assessing the strengths and weaknesses of the witness. Therefore, information about the previous convictions of the witness to be led at the trial 'would be likely to be of material assistance to the proper preparation or presentation of the accused's defence'. Under Article 6 (1) the accused's agents and counsel are accordingly entitled to have that information disclosed so that they can prepare his defence. Since in this way both sides will have access to this information at trial, the accused's right to equality of arms will be respected. The observations to the contrary effect in Her Majesty's Advocate v Ashrif [1988] S.C.C.R. 197 should not be followed."

[22] On the basis of these observations, without more, it might be thought that the failure of the Crown to disclose the previous convictions of Stronach in this case would have resulted in an unfair trial. However, before reaching such a conclusion, it is necessary to consider in more detail the particular circumstances of this case. It is obvious from the observations just quoted that the importance of the disclosure of previous convictions of a witness lies in the part that such convictions may have to play in a consideration of how to approach the examination or cross-examination of the witness concerned, on the part of defence counsel or agent. However, in this case, by virtue of the fact that Stronach was not and could not be a witness in the case, on account of his demise before the trial, there could be no question of his being examined or cross-examined personally. What was involved was the presentation of his statement to the police in terms of section 259 of the 1995 Act. Thus any convictions that might have been disclosed could not have been used for the purpose contemplated by Lord Rodger of Earlsferry in the passage quoted.

[23] It is conceivable perhaps that, faced with that situation, the appellant's advisors might have sought to prove the existence of the convictions in question in the course of the trial, with a view to establishing that, on the basis of them, Stronach had not been an honest person, rather a person with convictions for crimes of dishonesty. Plainly they were unable to avail themselves of that option had it commended itself to them. In considering whether their being deprived of that option resulted in an unfair trial, it is important to recognise the status of the evidence from Stronach at the trial. This can be discerned from the supplementary report furnished by the trial judge on the ground of appeal now under consideration. In it he explains that the evidence of Mr Stronach constituted one element in the Crown's circumstantial case. In dealing with ground of appeal (2), the trial judge indicated that he had come to the conclusion that, in the context of the circumstantial case against the appellant, it could not be said that the evidence of the taped interview of John Stronach was of such significance as to be decisive. It was one element in a body of circumstantial evidence pointing towards the guilt of the appellant.

[24] It is helpful to note the trial judge's detailed comments upon the material derived from Stronach. In his supplementary report he says this:

"The evidence of Mr Stronach was contained in Crown production 59 which was the transcript of a taped interview. Mr Stronach was interviewed by the police on 25 November 2003. The interview started at 2.32 am and finished at 3.28 am. The whole of the tape was played in the course of the evidence of Detective Constable McFadden on 2 September 2004.

As I noted at page 3 of my principal report, Crown witness number 4, Duncan Smith, gave evidence that on 24 November 2003 at 12.45 he saw a blue Peugeot 406 motor car, registered number M810 UEW in the driveway of 58 Whitelees Road, the home of the appellant. This sighting was not part of the surveillance exercise and was not recorded in the logs. Later that day the same Peugeot was the subject of surveillance. It was being driven by John Stronach. At 21.32 Mr Stronach drove the car to a service station at Kilmarnock where he met a Ford Orion motor car driven by another man. The two cars were driven in convoy to the village of Logan near Cumnock. There, in the car park of the Logangate Arms, the driver of the Orion spoke to Mr Stronach who did not leave his car. Thereafter Mr Stronach drove up to Glasgow and onto the M8 where he was stopped by police constables Norrie and McDonald at 22.40. Within a Farmfoods bag within the glove compartment there was a quantity of cocaine worth at least £30,000.

In the course of the taped interview Mr Stronach said that he had driven to Kilmarnock. He said that he had been sent by a man called 'Stevie' from Abronhill to sell the car. He gave a description of "Stevie". The Crown submitted that the appellant, whose first name was Steven, lived in Abronhill and fitted the description given by Mr Stronach. The Crown relied on this evidence as an element in the case against the appellant, inviting the jury to reject the evidence that the purpose of the journey was to sell the car.

In cross-examination of Detective Constable McFadden, Mr Watson, QC, on behalf of the appellant, examined production 59 in detail demonstrating that in the course of his interview Mr Stronach had told many lies. In his speech to the jury the Advocate depute accepted that Mr Stronach was clearly a liar. He said that he had lied about his movements and about his involvement in drugs. The Advocate depute suggested to the jury that it was easier to accept those parts of the taped interview which were supported by other acceptable evidence in the case. He pointed in particular to the evidence of Detective Sergeant Duncan Smith that the same car had been parked outside the appellant's house earlier in the day. He suggested that Detective Sergeant Smith, who had nothing to do with the surveillance operation or Detective Constable McFadden and had simply been at the house to check the address, was a credible witness.

The Advocate depute also referred to the evidence that the appellant had gone on 27 November to the house of Mr Stronach's girlfriend and collected Mr Stronach's passport. He had then taken it to Airdrie Sheriff Court to assist in the release of Mr Stronach on bail in relation to the drugs charges relating to the recovery of drugs in the Peugeot on 24 November. This, suggested the Advocate depute, would be a spectacular coincidence if it was not indicative of knowledge on the part of the appellant of Mr Stronach's involvement with drugs.

Taking into account the analysis of the interview of Mr Stronach carried out by Mr Watson and the concessions made as to his credibility by the Advocate depute, the jury would have been most likely to conclude that Mr Stronach did indeed tell many lies in the course of the interview. They would, however, have been entitled to be selective in their view of the evidence of Mr Stronach. I gave them directions along those lines on pages 5-6.

I understand that Mr Stronach had a number of previous convictions (the trial judge then narrates the details of these convictions). None of these matters was before the jury. Outstanding at the time of his death was the petition matter at Airdrie Sheriff Court which featured in the evidence.

In the circumstances outlined above it is difficult to see how the canvassing of the previous convictions of Mr Stronach before the jury would have bolstered the already largely successful attack on his credibility. It also difficult to see why knowledge of the previous convictions would have discouraged the jury from being selective in the approach to the contents of the interview of Mr Stronach."

[25] Against the background of the trial judge's account of the status of the material derived from Mr Stronach at the trial, we have not been persuaded that the failure of the Crown to disclose the previous convictions of Stronach to the appellant's advisors resulted in an unfair trial and hence a miscarriage of justice. For these reasons, we reject this ground of appeal.

[26] We turn finally to ground of appeal (5) in the original Note of Appeal. It is quite plain that it was wholly inappropriate for the trial Advocate depute to invite the jury to draw inferences from any plea of guilty tendered in the course of the trial by a co-accused of the appellant. We have difficulty in understanding how it could have been supposed that that was a proper course to take. That state of affairs was, however, recognised by the trial judge. He gave the jury specific directions in relation to it at pages 31 and 32 of the transcript of his charge. There he said this:

"Now, I am going to deal now with a matter which I think was mentioned by Mr Watson and that is this, that certain pleas of guilty and not guilty by other accused were accepted by the Crown in the course of the trial. Now, you should not draw any inference or conclusion from that in relation to the remaining accused so if the Crown suggested that the fact that Mr Bruce had pled guilty including a reference to 58 Whitelees Road and suggested that that was something that would be taken into account in relation to the first accused, Steven Allison, that was wrong, you should ignore that suggestion. Equally you should not draw any inference from the fact that the Crown accepted a not guilty plea from Mr Bolton. You should concentrate on the evidence. Of course, the evidence that was led in relation to these other accused is available if you think it has a bearing on the activities and associations of the remaining accused."

The trial judge also went on to give general directions to the jury to the effect that they had to decide the case on the basis of the evidence which they had heard. Recognising that any jury is presumed to follow the directions in law given to it by the presiding judge at a trial, unless the contrary can be shown, we conclude that there is no merit in this ground of appeal, which we reject.

[27] In all these circumstances, we refuse the appeal against conviction. The appellant's appeal against sentence will require to be heard at a date to be fixed.