APPEAL COURT, HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE HONOURABLE LORD PROSSER
APPEAL BY STATED CASE
PROCURATOR FISCAL, GREENOCK
Appellant: Duguid; Drummond Miller
Respondent: Menzies Q.C. A.D.; Crown Agent
8 June 1999
In this appeal by stated case the appellant is David Houston. On 4 August of 1998 he was convicted at the Sheriff Court in Greenock of an offence under Section 5(3) of the Misuse of Drugs Act for being in possession of amphetamine with intent to supply.
The general background was that police had been engaged in an undercover operation in connection with certain premises and had been there on 3 May 1997 and 10 May 1997. The events with which the Court is concerned occurred on Saturday 17 May 1997. It was clear from the earlier visits a particular person, named Barry Munro, was suspected of having sold controlled drugs and there is a finding to the effect that a Constable Hutchison and colleagues, who were involved with the appellant, had also been informed that the amount of drug dealing within the premises had been such that the "test purchase" officers had concluded that a number of other male persons had been involved at the same time as Munro in selling controlled drugs.
On 17 May Constable Hutchison and others were involved and the principal object of that operation was to detain Munro and some four or five other named persons under Section 14 of the Criminal Procedure (Scotland) Act 1995. It is found that the appellant was not one of the four or five named persons we have mentioned. At about ten o'clock in the evening Munro was pointed out to Constable Hutchison. Munro was standing just outside the entrance to the Celtic Supporters Club which is situated in Laird Street at the junction with Dalrymple Street. That junction is on the opposite side of Dalrymple Street from the club which was described as the suspect premises. It is found that it was only a very short distance away from the club. It is found that the majority of those who patronised the club did not enter the premises there until after 10.00pm. Four people were seen by Constable Hutchison to be standing in a group with Munro. The appellant was one of the four. Hutchison did not know him and then there is a finding that Hutchison was then instructed by a superior officer to detain Munro and the four persons standing with him, including the appellant.
It is found that Hutchison himself did not apply his own mind to the question of whether he had reasonable grounds for suspecting that the appellant had committed, or was committing, an offence punishable by imprisonment. But the Sheriff has found, at finding 13, that nonetheless Hutchison did in fact have reasonable grounds for suspecting the appellant had committed, or was committing, such an offence.
There is a broad issue as to what the tests are for a proper interpretation of this section. The Sheriff has proceeded upon the basis that the test is an "objective" one: one may have reasonable grounds for suspecting that a person has committed an offence without having applied one's mind as to whether one is in fact suspicious or whether there are reasonable grounds for suspicion. In this case it is plain that Hutchison did not proceed to that second stage.
We are entirely satisfied that the test is indeed an objective one. Two people may well have the same information, one of them may proceed to consider the question of whether there are reasonable grounds for suspicion and the other may not proceed to that stage. If someone is then detained by the latter of these persons, we are satisfied that the detention will still be justified if there were reasonable grounds for suspicion. Where more than one officer is involved, such a situation is unsurprising.
The question however becomes, in this case, whether, objectively, Constable Hutchison did have sufficient knowledge and information to constitute reasonable grounds for suspecting that the appellant had committed, or was committing, an offence.
The matter is slightly complicated because another officer gave evidence of further matters which would perhaps provide a better basis for suspicion. That was however knowledge not available to Hutchison or not spoken to as having been available to Hutchison; and while the Sheriff is uncertain as to whether he himself took it into account, he proceeds upon the basis that it must be left out of account. The question for us is whether Hutchison had knowledge and information which could constitute reasonable grounds. What the Sheriff sets out is that Hutchison was aware of the reported extent of the drug dealing in the premises on the previous two weekends. He was aware also that Barry Munro had allegedly been selling drugs on those two dates and he was aware that it was thought that other men had also been involved in drug dealing. On the evening of 17 May itself at about 10.00pm, which the Sheriff points out was before the majority of the patrons of the club were expected to enter the premises, Hutchison saw the appellant and three other men standing with Munro in a group across the street and only a very short distance away. It is against that background that the Sheriff says that he considers that Hutchison had reasonable grounds for suspecting that the appellant had been concerned in the supplying of a controlled drug.
We were referred to cases such as Weir v Jessop 1991 S.C.C.R. 242 and Stark v Brown 1997 S.C.C.R. 382. It is clearly a matter of degree and circumstances whether there are sufficient facts to constitute reasonable grounds. However, in this case it appears to us that the kind of features that were present in those cases are absent. It is true that the place where Munro and the others were was not far from the club but there was nothing to link the appellant with the club. The involvement of others was suspected - but by this stage some others had been identified. There was nothing in the appellant's behaviour apparently which was suspicious other than being with Munro. There was, in those circumstances, in our view, insufficient material to justify holding that there were reasonable grounds for the suspicion in question. It is clear that this was a public street. It was not a particular part of the public street which was itself a suspect area, like the close in the case of Stark v Brown, and it is clear that there might well be people, members of the general public, who might, for one reason or another have stopped and spoken with Munro in these circumstances.
We are satisfied that while the matter is always one of degree, the degree required for suspicion is not present in this case. In these circumstances we answer the first question in the case in the negative, that question being whether the Sheriff was entitled, in the light of the earlier findings, to make finding 13. That being so, we answer the second question in the affirmative and questions 3 and 4 in the negative. The Sheriff was not, in the event, entitled to find the appellant guilty and the appeal succeeds.