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Appeal Against Conviction on the Grounds of Misdirecting the Jury

Darrell Mitchell v HM Advocate

A man found guilty of supplying cocaine who claimed that the Sheriff misdirected the jury over how they were to treat opinion evidence has had an appeal against his conviction refused.

The Appeal Court agreed that the Sheriff’s failure to provide guidance to the jury about how they should evaluate the opinion evidence of the Police officer was an “error”, but ruled that there was no “miscarriage of justice” in this regard. Mr Mitchell, went to trial in August 2016 at Kilmarnock Sheriff Court on an indictment containing four charges of being concerned in the supply of, cocaine, cannabis, cannabis resin and methylethcathinone and maintained a plea of not guilty to all charges.

The Crown led his co-accused Mr Buchanan and other witnesses, including a Police Sergeant who gave evidence to a report entitled “Statement of Opinion” in relation to the drugs which had been seized by other police officers. It was submitted that the sheriff had failed to direct the jury about the use of opinion evidence and what this meant. The Sheriff did not direct the jury in how they should use this evidence, which the appellant argued to be crucial. The Sheriff gave no specific directions as to expert evidence in contrast to evidence of lay people.

The appeal judges noted that the jury had “no guidance” as to what they were entitled to make of the apparently authoritative opinions of the Sergeant and this was an error. Concluding the appeal, 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.

However, the judges held that there had not been a miscarriage of justice” as the sheriff’s failure to give a direction on the STOP officer’s evidence was not material and there was an abundance of other evidence before the Court. Therefore the appeal was refused.

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