(first) Kb And (second) Jg
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton,Lord Brodie,Lord Philip |
| Neutral Citation | [2015] HCJAC 17 |
| Court | High Court of Justiciary |
| Docket Number | HCA/2014-4635 |
| Published date | 17 February 2015 |
| Date | 11 December 2014 |
| Year | 2015 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 17
HCA/2014-4635/XC &
HCA/2014-4634/XC
Lord Brodie
Lady Clark of Calton
Lord Philip
OPINION OF THE COURT
delivered by LORD BRODIE
in
the appeals under section 74(1) of the Criminal Procedure (Scotland) Act 1995
by
(FIRST) KB; and (SECOND) JG
Appellants;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: M MacKenzie; Gavin Bain & Co, Aberdeen (for the first appellant)
C M Mitchell; George Mathers & Co, Aberdeen (for the second appellant)
Respondent: Edwards, AD; Crown Agent
11 December 2014
Introduction
[1] These are appeals at the instance of KB and JG in terms of section 74(1) of the Criminal Procedure (Scotland) Act 1995 from a decision of the sheriff sitting at Dumfries at a first diet held in terms of section 71 of the 1995 Act on 20 October 2014. The appellants have been indicted on a single charge of being concerned in the supply of cannabis resin in contravention of section 4(3)(b) of the Misuse of Drugs Act 1971.
[2] Having heard evidence as to the circumstances of the stopping of the appellants’ motor vehicle at the roadside, the subsequent detention of the appellants and the search of the motor vehicle which had by then been removed to a police station, purportedly in terms of section 14 of the 1995 Act, the sheriff’s decision was to repel the preliminary pleas stated in minutes lodged in terms of sections 71(2) and (79)(2)(b)(iv), objecting to the admission of evidence as to the finding of bars of cannabis resin in the motor vehicle on 24 November 2013.
[3] Put shortly, the grounds of appeal, common to both parties, are that the sheriff erred in finding that (1) there were reasonable grounds for the detention of the appellants under section 23 of the 1971 Act and (2) that when they searched the vehicle the police officers retained the power lawfully to do so given that they had brought the detention of the appellants under section 23 of the 1971 Act to an end and substituted detention in terms of section 14 of the 1995 Act.
Statutory provisions
[4] In so far as is relevant section 23 of the Misuse of Drugs Act 1971 provides as follows:
“...
(2) If a constable has reasonable grounds to suspect that any person is in possession of a controlled drug in contravention of this Act or of any regulations or orders made thereunder, the constable may –
(a) search that person, and detain him for the purpose of searching him;
(b) search any vehicle or vessel in which the constable suspects that the drug may be found, and for that purpose require the person in control of the vehicle or vessel to stop it;
(c) seize and detain, for the purposes of proceedings under this Act, anything found in the course of the search which appears to the constable to be evidence of an offence under this Act.”
[5] In so far as is relevant the Criminal Procedure (Scotland) Act 1995 provides as follows:
“14. - Detention and questioning at police station.
(1)Where a constable has reasonable grounds for suspecting that a person has committed or is committing an offence punishable by imprisonment, the constable may, for the purpose of facilitating the carrying out of investigations—
(a) into the offence; and
(b) as to whether criminal proceedings should be instigated against the person, detain that person and take him as quickly as is reasonably practicable to a police station or other premises and may thereafter for that purpose take him to any other place and, subject to the following provisions of this section, the detention may continue at the police station or, as the case may be, the other premises or place.
(2) Subject to section 14A, detention under subsection (1) above shall be terminated not more than 12 hours after it begins or (if earlier)—
(a) when the person is arrested;
(b) when he is detained in pursuance of any other enactment; or
(c) where there are no longer such grounds as are mentioned in the said subsection (1),
...
(4) Subject to subsection (5) below, where a person has previously been detained in pursuance of any other enactment, and is detained under subsection (1) above on the same grounds or on grounds arising from the same circumstances as those which led to his earlier detention, the period of 12 hours mentioned in subsection (2) above shall be reduced by the length of that earlier detention.
...
(7) Where a person is detained under subsection (1) above, a constable may—
...
(b) exercise the same powers of search as are available following an arrest.
...
18. - Prints, samples etc. in criminal investigations.
(1) This section applies where a person has been arrested and is in custody or is detained under section 14(1) of this Act.
(2) A constable may take from the person, or require the person to provide him with, such relevant physical data as the constable may, having regard to the circumstances of the suspected offence in respect of which the person has been arrested or detained, reasonably consider it appropriate to take [from him or require him to provide, and the person so required shall comply with that requirement].
...
(8) Nothing in this section shall prejudice—
(a) any power of search;”
Evidence heard by the sheriff
[6] The sheriff in his report narrates the evidence heard by him as follows:
“[1] P.C. [I] gave evidence as follows; he had 21 years police experience much of which had been spent at the Lockerbie Traffic Department. He had spent the last 16 years in this department.
[2] On 24th November 2013 he was on patrol with PC [F] on the M74 with general duties of stopping and checking motorists. He spotted a silver Honda Civic near junction 19 on the northbound carriageway. The police vehicle was in the inside lane (lane 1) and the Honda overtook them in the outside lane (lane 3). There were no other vehicles nearby and the Honda should therefore have overtaken the police vehicle in lane 2 having come from lane 1. He therefore pulled the Honda over onto the hard shoulder in order to speak to the driver about his lane discipline. KB was the driver and JG was the front passenger. There was nobody else in the car. PC [I] spoke to JG first because he went to the passenger side of the vehicle. He told the appellants why the vehicle had been stopped and took their details. They provided no good reason why they had used only lane 3. He asked JG for identification and JG showed his driving licence, and while he did this his hand was visibly shaking. PC [I] then asked for further details including where they had been where they were going.
[3] The appellants told PC [I] that they had gone to Manchester on the previous day to watch a boxing match – Froch v Groves. PC [I] was a fan of boxing and asked them what they had thought about the fight. He thought that the replies which they gave were vague, did not describe the fight properly and did not include who had won. PC [I] was suspicious that the appellants were hiding something from him and were not telling the truth. He asked the appellants where they had stayed overnight and they said that they had slept in the car. PC [I] noted that the car was tidy and that there was no sign of any toilet or overnight bag, that the appellants were tidy and that their clothes were not creased or messy. PC [I] thought that the demeanor of the appellants was evasive and that things were just not adding up for him.
[4] PC [I] said that he had dealt with a lot of people on the M74 and he was aware of it being a route for carrying drugs up from Manchester to Aberdeen. He therefore detained both appellants under section 23 of the 1971 Act.
[5] He suspected they may be carrying controlled drugs based on their…. shaking, nervousness, lack of clarity about where they had been and because their car looked immaculate to him whereas they said they had slept in it that night.
[6] He and PC [F] gave the appellants a cursory search, principally for safety reasons, and found no weapons on them. The appellants and the motor car were taken to Lockerbie police station.
[7] At Lockerbie police station the appellants were again searched but nothing of interest was found. They were booked in there and detained under section 14 of the 1995 Act. PC [I] said that he had detained both appellants under section 14 so that he could keep them in custody in order that he could search the car. He said that section 14 allowed him to search any vehicle in which suspects had travelled, in keeping with his drug powers. He said that he searched the vehicle because he had a suspicion that they had controlled drugs in the car and that he searched the vehicle under section 23 using section 14 to keep the appellants in custody meantime.
[8] PC [I] said that he found two 9 ounce bars of what was later identified as cannabis resin behind the steering wheel block. At that point he stopped the search and called the CID to attend in order to take photographs and continue the search.
[9] In cross‑examination for KB; he said that the main reasons for his suspicions were the shaking hand of JG, the vagueness of the appellants about Froch v Groves fight, the tidy appearance of the appellants as compared with their assertion that they had slept in the car overnight and the fact that they were travelling from Manchester to Aberdeen on the M74. When the section 23 detention ended he used section 14 to keep the appellants in custody while he searched the car. Section 14 gave him the power to search all of the appellants’ property. Section 23 also covered the car search. The section 23 detention had ended before the section 14 detention commenced.
[10] In cross‑examination for JG (sic); he said that the police had no suspicion of any drugs when the car was stopped. This was a pitch black, cold night in November, but it was not frosty. The passenger window was rolled down at first and it is possible that cold air got into the car through the open window. PC [I] knew that when somebody...
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