Appeal Under Section 74 Of The Criminal Procedure (scotland) Act 1995 By Lee Dunsire Against Her Majesty's Advcoate
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lady Clark Of Calton,Lord Turnbull |
| Neutral Citation | [2017] HCJAC 30 |
| Year | 2017 |
| Docket Number | HCA/2016 |
| Published date | 19 May 2017 |
| Court | High Court of Justiciary |
| Date | 09 November 2017 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2017] HCJAC 30
HCA/2016/000479/XC
Lord Menzies
Lady Clark of Calton
Lord Turnbull
OPINION OF THE COURT
delivered by LORD MENZIES
in
APPEAL UNDER SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
by
LEE DUNSIRE
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: Johnston (sol adv); McKennas
Respondent: Farquharson AD; Crown Agent
9 November 2016
[1] In this appeal under section 74 of the Criminal Procedure (Scotland) Act 1995, the appellant appeals against a decision of the preliminary hearing judge to refuse a preliminary issue Minute dated 2 June 2016 and date stamped 27 July 2016, which objected to the admissibility of evidence of the appellant’s police interview in the course of his detention on 23 June 2015.
[2] We take the following background from the Opinion of the preliminary hearing judge which is date stamped 29 August 2016 and which is in substantially the same terms as his Report to this court date stamped 12 October 2016.
“[1] The minuter is charged with being concerned in the supply of controlled drugs, contrary to section 4(3) of the Misuse of Drugs Act 1971. There are several co-accused. The trial is due to begin in February 2017.
[2] The charges arose in this manner. The police obtained authority under the Regulation of Investigatory Powers Act 2000 to carry out a surveillance operation into organised crime. They targeted various individuals, including the minuter and his brother, Robert Dunsire.
[3] As a result of information gathered during the course of that operation, the police obtained search warrants under section 23 of the Misuse of Drugs 1971 Act. They executed them at each brother’s house.
[4] From the minuter’s property they recovered: (a) small quantities of two types of controlled drugs, (b) a set of digital scales, (c) a piece of paper with notations, (d) £140 in cash, and (e) four mobile telephones. From Robert Dunsire’s property they recovered 6 kilos of amphetamines.
[5] Each man was then taken to a police station, formally detained and interviewed. The police questioned the minuter about his involvement in drugs transactions. He made no admissions. At the end of his interview, the police released him without arrest or charge.
[6] The police sent the four mobile telephones for examination and analysis by specialists at the E-Crime unit. They downloaded the data from the mobile phones and put it on a disc. Some information appeared to relate to drugs transactions.
[7] The minuter attended Kirkcaldy police station by arrangement on 23 June 2015. He was again detained, this time on the basis of the information contained on the E-Crime unit disc. He now challenges the lawfulness of that detention, in order to have the telephone data ruled inadmissible.
[8] The parties agreed all the formal steps of the procedure by way of a joint minute. At an evidential hearing on 22 August 2016, I heard evidence from DC Hobbs and DC MacDonald. They respectively detained the minuter on the first and second occasions. Following submissions, I refused to grant the order sought in the Minute.
[9] The testimony was in short compass. I shall mention only two points. First, DC Hobbs said that the four mobile telephones reinforced his suspicion that the minuter was involved in drugs transactions, because dealers commonly buy, use and discard such handsets. Secondly, prior to 23 June 2015 DC MacDonald knew about the surveillance operation, the searches, and the earlier detention.
[10] On behalf of the minuter, Ms Johnston submitted that the second detention was prohibited by section 14(3) of the Criminal Procedure (Scotland) Act 1995. It provides:
“Where a person has been released at the end of a period of detention, he shall not … thereafter be detained … on the same grounds or on any grounds arising out of the same circumstances.”
[11] Ms Johnston argued that the section meant that re-detention was only available where there was fresh evidence, such as a new witness. That was not the case here. The police suspected the minuter of involvement in drugs when they obtained the section 23 warrant. Their suspicion deepened on 23 March when they recovered the four mobiles, and hardened further when they received the E-Crime unit disc. The advocate depute contended that section 14(3) did not apply. Both sides referred to HM Advocate v Mowat 2001 SLT 738.”
[3] The preliminary hearing judge gave his reasoning in relatively short compass at paragraph 12 to 14 of his Opinion as follows:
“[12] I start with the central fact. The data downloaded from the phones was new material. It was not available to the officers in March. Accordingly, DC MacDonald did not detain the minuter on the same grounds.
[13] The question is whether the detention was on grounds arising out of the same circumstances. Ms Johnston’s approach is too narrow. While the reasons for suspecting the minuter increased at each stage, they were not on a continuum. The receipt of the information on the disc constituted a material change of circumstances. The altered factual matrix entitled the police to detain the minuter on 23 June.
[14] I make this observation. If any test results reported to the police after a detention were not capable of justifying a further detention, that could yield an unfortunate result for suspects. The police would have to arrest and charge, rather than detain and question.”
[4] The submissions by Ms Johnston on behalf of the appellant to this court, reflected the submission made to the preliminary hearing judge although she departed from the terms of the preliminary issue minute in which it was submitted:
“that the mobile phones were not lawfully seized under the warrant granted. It is submitted that the mobile phones were not lawfully interrogated during the period of the accused’s detention and that therefore no other power authorised the detention and interrogation of the mobile phones. Accordingly it is submitted that all of the evidence pertaining to the two relevant mobile phone numbers is inadmissible”.
Before this court, Ms Johnston accepted that evidence as to the analysis of the contents of the mobile phones was admissible. However, she maintained her position that the contents of the appellant’s interview on 23 June 2015 were inadmissible as the interview occurred during a purported detention under section 14 of the Criminal Procedure (Scotland) Act 1995 which was illegal because of the terms of section 14(3).
[5] Section 14(1) and (3) of the 1995 Act are in the following terms:
“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.
...
(3) Where a person has been released at the termination of a period of detention under subsection (1) above he shall not thereafter be detained, under that subsection, on the same grounds or on any grounds arising out of the same circumstances”
[6] Ms Johnston submitted that the second detention of the appellant in June 2015 was illegal because it was on the same grounds as his earlier detention in March 2015. Having originally detained the appellant in terms of section 23 of the Misuse of Drugs Act 1971, the police officers recovered certain items from his flat and then detained him under section 14 of the Criminal Procedure (Scotland) Act 1995. They seized his mobile phones because...
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