McDONNELL v. THE UNITED KINGDOM
Inadmissible
Nicolas Bratza
The applicant is a British national, born in 1972. He is currently serving a prison sentence in the United Kingdom. The applicant is represented before the Court by John Carroll & Company, a firm of solicitors based in Glasgow, Scotland. On 29 December 1997 police officers acting on information searched the applicant’s home pursuant to a warrant issued under the Misuse of Drugs Act 1971 (“the 1971 Act”). The applicant was cautioned by the police at the start of the search and did not exercise his right to silence. The search of the applicant’s home uncovered quantities of cannabis resin and amphetamines as well as cash and a “tick list”. Towards the end of the search a visitor (“R.”) called at the house. The police admitted him and he was found to be in possession of a set of scales. When questioned about the scales, R. replied in the applicant’s presence: “They’re Pele’s”. Pele was the applicant’s nickname. The applicant did not react to R.’s statement. A brownish residue on R.’s scales was later found to contain the active principles of cannabis. The applicant was charged under the 1971 Act with being concerned in the supply of controlled drugs. At the trial both the applicant and R., who was called as a defence witness, denied that the incriminating words were uttered by R. In the applicant’s submission R. had said that the scales were broken. The applicant maintained that the drugs belonged to a third party (“J.”) who called at his house before the police arrived and had left his jacket with him. R. testified that the scales had been left in his car by another third party and that they had nothing to do with the applicant. He told the jury that it was a coincidence that he had turned up at the applicant’s house with the scales and that the only purpose of his visit was to collect the jacket left there by J. The prosecution accepted that the applicant and R. did not know each other. At the close of the trial the judge directed the jury that it was for the prosecution to prove the applicant’s guilt beyond reasonable doubt and summed up the evidence which they had heard during the trial. As to R.’s statement and the applicant’s failure to deny its implications, the trial judge stated: “... You can also have regard to evidence about what was said by another person about the accused in his hearing and that is because he has an opportunity there and then to contradict what is being said about him if he wishes to dispute it, and that is obviously of relevance when you are looking at the evidence of what [R.] may have said about the scales and the police asked him a question about the scales... You might think from that that the scales had been associated with the weighing of cannabis and you might want to relate that to what was found in the house and also the Crown would ask you to take account of what, according to the police, [R.] said about the scales. ... You remember that evidence was that he said ‘They’re Pele’s’ – Pele being the nickname of the accused. That, of course, is denied and it is for you to decide whether you accept the police evidence or whether you disbelieve it or at least you think it is open to doubt, having regard to the evidence given by the [applicant] and [R.] ... Now, you will have to consider that issue, was that said and if so what can you take from it. Is this in some way indicative of some activities to do with weighing quantities of cannabis and does that have some bearing on the question of being concerned in the supplying of the cannabis so you can see it is a matter which might be regarded as being relevant to the central issue here.” By a majority the jury found the applicant guilty of the charges and on 5 March 1997 he was sentenced to four and a half years’ imprisonment. The applicant appealed to the High Court of Justiciary, which heard his appeal on 10 October 1997. Before the High Court the applicant contended that the trial judge should have directed the jury that while the silence of an accused in the face of an accusation of guilt could be taken into account in considering the case against him, in the applicant’s case no such accusation had been made by R. Accordingly the jury should have been directed to disregard the evidence as to his silence in the face of R.’s statement that the scales belonged to “Pele”. In dismissing the appeal, the High Court concluded: “... It seems to us that in considering the question of the case against the accused, there is no good reason to restrict the scope of the principle ... to a case where the accusation is one of the guilt of the accused. Accordingly it is available to cover situations in which a statement is made which if true would be criminative of the accused. There may be cases in which the statement which is made is of a comparatively trivial nature, in which case it will of course be a matter for comment in the trial as to whether any significance can be attached to silence in the face of such a statement. In the circumstances we consider that the appeal is not well founded and it will be refused.”