Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Bracadale Sheriff Principal Lockhart	[2012] HCJAC 104 Appeal No: XJ142/12 and XJ374/12 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL BY STATED CASE AND BILL OF SUSPENSION by ROBERT LEE YOUNG Appellant; against PROCURATOR FISCAL, SELKIRK Respondent: _______

Act: N Allan, solicitor advocate; George More & Co

Alt: AF Stewart, QC, AD; Crown Agent

3 August 2012

Procedure

[1] There are two appeals under consideration. The first is a stated case, following an application dated 19 December 2011, challenging the conviction of the appellant on 13 December 2011 at Selkirk Sheriff Court on two offences occurring at Borders General Hospital on 26 July 2011, notably: (1) obstructing the police in the exercise of their powers under section 23 of the Misuse of Drugs Act 1971, by refusing to comply with a warrant authorising internal examination for drugs, contrary to section 23(4)(a) of the Act; and (2) behaving in a threatening and abusive manner by stating to police officers that he would: (a) kill them; and (b) assault medical staff who attempted to execute the terms of the warrant; contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.

[2] The second process is a Bill of Suspension, lodged on 28 December 2011. This seeks to suspend the warrant, which is mentioned in the charges and is dated 26 July 2011. That does not pose any procedural problem. However, the Bill also challenges the convictions. In that respect, it is incompetent in the absence of leave to proceed (Criminal Procedure (Scotland) Act 1995 section 191(2); see also section 184(2)). At the outset of the hearing, the appellant abandoned the Bill in so far as it challenged the convictions and the appeal proceeded on the basis that the Bill sought to suspend only the warrant.

Facts

[3] The facts are relatively straightforward. The police had intelligence that the appellant was involved in transporting drugs from Selkirk to Galashiels and that he was known to carry drugs internally. At about 10.00am on the date libelled, the police observed the appellant in the front passenger seat of a car. He was with two other persons. The car pulled up at the house of a known drug user, who was also accustomed to allowing her house to be used for drug use. The sheriff held that the combination of these matters provided the police with a reasonable suspicion that the appellant was in possession of drugs.

[4] The police detained the appellant in the car for the purposes of a search under section 23 of the 1971 Act. The appellant was taken to Galashiels police station. A warrant to search his house had already been obtained and some herbal matter and a firearm had been recovered. Meantime, the appellant had been strip searched at the police station, but nothing had been found. He was not, however, released; although he was allowed access to a lawyer and availed himself of that opportunity by speaking to a solicitor by telephone.

[5] On the basis of their existing intelligence, the police sought and obtained a warrant from the sheriff to carry out an internal search. The appellant was taken to the hospital at about 2.00pm. On arrival at the hospital he behaved as narrated in the charges. He refused to get out of the police car and threatened to assault the police and medical staff who came near him. He was taken back to the police station. He was arrested shortly before 3.00pm. The appellant was thereafter kept under observation for several days, at the end of which the police were satisfied that he had not been carrying any drugs internally.

Submissions

[6] It was argued during the course of the trial and at the hearing of the appeal that the detention of the appellant, after he had been searched at the police station, had been unlawful. The appellant had been a person "effectively without status". Reference was made to the time limitations under equivalent provisions in the Criminal Law (Consolidation) (Scotland) Act 1995 (section 50) and the Civic Government (Scotland) Act 1992 (section 60). On that basis, the evidence of his actions during this period of unlawful detention ought to have been excluded. In addition, it was said that the decision of the police to seek the warrant from the sheriff was "disproportionate" and that it should not have been granted. The information which the police had was not sufficient to justify the warrant. Furthermore the appellant had not been "put to the test" in relation to his threats and his actions could not be taken to amount to obstruction (Vaughan v Griffiths 2004 SCCR 537).

[8] The advocate depute accepted that it was recognised that an invasive search required the obtaining of a warrant (see Stoddard: Criminal Warrants para 3.07 and p 146). This provided an additional protection for the suspect. There had been sufficient information upon which to proceed and the sheriff had been entitled to grant the warrant and, ultimately, to repel the objections taken at the trial diet. The conduct of the appellant at the hospital had amounted both to obstruction and a statutory breach of the peace.

Decision

[9] Section 23 of the Misuse of Drugs Act 1971 provides:

"(2) If a constable has reasonable grounds to suspect that any person is in possession of a controlled drug..., the constable may -

(a)               search that person, and detain him for the purpose of searching him; ...".

The information which the police had in their possession was sufficient to constitute reasonable grounds to suspect that the appellant was in possession of controlled drugs. They were accordingly entitled to detain the appellant under this section. Question 1 in the stated case accordingly falls to be answered in the negative. The information, coupled with the failure of the search at the police station, would have entitled the sheriff to grant a warrant for an intimate search had the appellant's continued detention been lawful. Equally, had that detention been lawful, his conduct was such as would cause a reasonable person fear and alarm. His actions were not reasonable. They would have amounted to a contravention of section 38 of the 2010 Act. In this respect, questions 6 and 7 fall to be answered in the affirmative.

[10] However, the critical question concerns the legality of the appellant being kept in custody after he had been searched in the police station. The "stop and search" power in section 23 had its source in section 6 of the Dangerous Drugs Act 1967. It was, and is, assumed that the power to search should not be interpreted literally. It includes, for example, the ability not just to search a person but to examine things which a person has with him (e.g. any bag etc). It was thought by some that the section did not give the police any power to do more than detain at the place where the detention was made. The police could not, for example, take the person to another place, such as a police station, at least unless such a step was necessary for the privacy or safety of the person (see e.g. the annotations by Richard Card to the 1971 Act in 1971 Current Law Statutes para 38/23).

[11] It was made clear by the courts in both England (Farrow v Tunnicliffe [1976] Crim LR 126) and Scotland (Wither v Reid 1979 SLT 192, Lord Robertson at 197) that, if it was convenient to do so, a detained suspect could be taken to a police station for the purpose of the search. The cases envisaged the situation in which a constable had detained a suspect of the opposite sex and considered that it would be appropriate to arrange for an officer of the same sex as the suspect to carry out the search. The easiest, although not the only, way of doing that may be to take the suspect to a nearby police station. This approach involves an acceptance that, despite the precise terms of the section, the search of the suspect may be carried out by a different constable from the one who carried out the detention.

[12] Given that the provision, when introduced, was seen as a power to the police to "stop and search", it would be surprising if it were to be interpreted as providing the police with the authority to instruct others to carry out an intimate search, involving invasive procedures. The police in this case clearly did not think so; hence their application to the sheriff for a warrant. If that is so, it follows that the power of detention under section 23 lapses, by the latest, once the search by the police, whether carried out in the police station or elsewhere, has been completed. This is consistent with the broad intention of the section, which provides the police with powers of "stop and search", i.e. a summary and brief procedure (cf Customs and Excise Management Act 1979 s164).

[13] What is envisaged is the type of search which a police officer is capable of carrying out; not one which requires medical intervention. If a suspect is to be kept in lawful police custody for any period of time after the police search has been completed, the police require to exercise some other power, such as arrest (under section 24 or at common law) or detention under section 14 of the Criminal Procedure (Scotland) Act 1995. No such steps were taken in this case.

[14] The conclusion must be, therefore, that the appellant's detention after the completion of the search in the police station was unlawful. That has two consequences. First, because the warrant was granted on the basis that the sheriff accepted that the appellant was being lawfully detained, the warrant falls to be suspended. The court will accordingly pass the Bill to that extent. Secondly, evidence of what had occurred during the unlawful detention ought to have been excluded. The court will therefore answer question 2 in the stated case in the affirmative. It follows that questions 3 and 5 must also be answered in the affirmative and question 4 in the negative. The court will quash the conviction.