Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 95

HCA/2015/3424/XC

Lord Justice Clerk

Lady Dorrian

Lord Bracadale

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

BILL OF ADVOCATION

for

CONNOR McATEER

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: CM Mitchell; John Pryde & Co (for Aamer Anwar & Co, Glasgow)

Respondent: McSporran AD; the Crown Agent

18 December 2015

[1]        The appellant is charged, along with PM, with, amongst other things, concern in the supplying of ecstasy between 1 June and 13 July 2013 at T in the Park, Balado, Kinross.  He lodged a minute in terms of section 71 of the Criminal Procedure (Scotland) Act 1995, maintaining that the search of him, under section 23 of the Misuse of Drugs Act 1971, was unlawful.  The matter was the subject of evidence. 

[2]        The sheriff found that on 13 July 2013, a G4S security adviser saw the appellant standing with two other males, including PM, talking beside some tents.  PM seemed “a little incoherent”.  It appeared that he had taken some substance.  His pupils were dilated.  He consented to a search.  He was carrying £680 cash and was in possession of a deodorant cap containing 23 purple pills, which he admitted were for onward sale.  The G4S employee suspected that all three males were involved in drug dealing and called the police.

[3]        A police sergeant attended and was told that the three males had been stopped because they were acting suspiciously.  The sergeant was told by the G4S staff that PM had £680 cash in his possession, along with the pills.  He was told that all three males were acting together.  He therefore detained them all in terms of section 23 of the 1971 Act.  Although the matter was the subject of some debate before the sheriff, at the appeal hearing it was accepted that the sergeant had reasonable grounds for suspicion and hence for making that detention.  He instructed a search of the appellant by a constable colleague, whilst he searched the other two.  The constable had been told that the G4S staff had said that all three males were in possession of drugs.  The appellant was searched by the constable.  He was found to be in possession of, amongst other things, £425 cash, 7 bags of white powder, a kinder egg with 62 tablets and a further 2 blue tablets and a capsule. 

[4]        The submission before the sheriff had been that the police had not had reasonable grounds to suspect that the appellant was in possession of drugs and hence no power to detain or search him.  Reference was made to several authorities on that point.  However, the issue before this court is a narrower one; whether, even if the sergeant had reasonable suspicion, it was necessary for the constable delegated with the task of carrying out the search to form his own suspicion.

[5]        Leave to appeal was granted by the sheriff against his rejection of the appellant’s objection to the search, but the appellant did not appeal timeously, in terms of section 74 of the Criminal Procedure (Scotland) Act 1995.  The appellant then presented this Bill of Advocation.  It was maintained, under reference to Donnelly v AK and AR 2013 JC 32, that such a course was competent. 

[6]        This Bill of Advocation is incompetent.  It is true that the provisions for leave to appeal in section 74 do not override the common law in relation to advocation.  However, in the case of accused persons, who are entitled to appeal in the event of a conviction, there require to be “extraordinary” or “very special” circumstances, where grave injustice would result, which cannot be remedied on such an appeal, before an advocation during the course of a prosecution is competent (Muir v Hart (1912) 6 Adam 601, LJG (Dunedin) at 626-7; and Macleod v Levitt 1969 JC 16, Lord Cameron at 19; see also Durant v Lockhart 1985 SCCR 72, Lord Jauncey at 74).  The rule is one which is based upon expediency.  No such circumstances exist in this case.  In the event of the appellant being convicted, having failed to meet the deadline for appealing the preliminary issue, he remains entitled to appeal in the normal way.

[7]        In this case, however, the court was asked nevertheless to address the merits.  The court is prepared to do that.  The position is that it is accepted that the sergeant had reasonable grounds for suspicion and hence power to detain the appellant for the purposes of a search in terms of section 23 of the 1971 Act.  Once that lawful detention had been made, it is not a relevant ground of objection that a different officer, delegated to carry out that search for sound practical reasons, did not himself or herself have an equivalent suspicion (Young v McLintock 2012 SCCR 644, Lord Carloway at para 10).

[8]        In these circumstances, had the Bill been deemed competent, the court would have refused to pass it.