Scottish High Court of Justiciary Decisons

ROSS McINTOSH v. PROCURATOR FISCAL, DUNFERMLINE [1999] ScotHC 40 (23rd February, 1999)

This is an appeal by stated case taken by Ross McIntosh in respect of a conviction of being in possession of eleven Ecstasy tablets at club premises with intent to supply them to others. The Sheriff, after trial and conviction, on 28 October 1997 sentenced the appellant to twelve months detention.

The appeal covers both conviction and sentence. So far as conviction is concerned, the question relates to the way in which possession of the tablets was obtained. The appellant had been in the toilets at a club. Taking matters shortly, he was seen by a doorman, McAuley, at the club to have tablets and thereafter the tablets were handed over by the appellant to that doorman. The question on conviction turns upon the circumstances in which the tablets were handed over.

The position of the appellant is that the circumstances amounted to an unlawful search. What is said by the Sheriff in this respect in his findings of fact is that McAuley demanded that the appellant open the door of the cubicle in the toilets and he did so. McAuley then asked the appellant what he had in his pockets and the appellant replied, "Nothing" and made a gesture with both arms outstretched as if to indicate as much. The witness McAuley repeated the request adding that he had seen something and asked him again to turn out his pockets. The appellant did so. The witness McAuley took possession of the bag containing eleven tablets.

The Sheriff narrates the evidence of witnesses in this respect. There is plainly something of a conflict as to quite what it was that induced the appellant to hand over the tablets in question but we are entirely satisfied that there was no physical search, nor was it suggested that there was. At this stage of the argument counsel proceeded upon the basis that there had indeed been a search and that it was unlawful. In order to present that proposition reliance had to be placed upon the overall circumstances and the proposition that this was rather more than a request, that it was a demand and that there was presumably some element of fear or the like which had induced the hand-over, so that it could be described in some sense as not voluntary and as due to force.

There are many circumstances in which an act will not be voluntary because some form of pressure has been applied other than physical force but in relation to "search" one is concerned with that specific word, as well as with whether the acts were voluntary. We were referred to the unreported case of Urquhart v The Procurator Fiscal, Aberdeen in which an appeal was heard in this Court on 25 March 1998. In that case the Court said that the simple fact of the matter was that however reluctant the appellant may have been and whatever the surrounding circumstances may have been, the appellant actually handed over the container in question and that in these circumstances the Court could not say that the appellant was searched.

The position appears to us to be the same in this case. There was no search and therefore no question of lawfulness of search arises.

That was the way in which the matter had been argued before the Sheriff and was the primary submission to us. However, on behalf of the appellant, Mr Shead went on to present a different form of argument to the effect that even if there had been no "search" and even if the drugs had been handed over in response to a request, issues of fairness arose according to which the obtaining of the drugs would be unlawful because there had been no warning of the possibly incriminating consequences of handing the drugs over. In this respect we were referred to authority, in particular Brown v Glenn in 1997 S.C.C.R. at page 636. However, it appears to us that that case relates to questions of a different kind from those involved in this case. There are plainly special rules where a person is suspected by the police and investigation by the police is being carried on and there are no doubt other circumstances which might have a bearing upon the legitimacy of requests without warning in such cases.

The appellant in this case, although suspected by the witness McAuley, was not at that stage suspected by the police and we do not think that any close analogy can be drawn between the requirements for the police and any demand by a lay person that something be handed over.

In any event, this is not how the matter was presented to the Sheriff. It is not how the matter is presented in the stated case and we are not prepared to uphold the appeal on that ground.

The questions in the stated case relating to conviction will therefore be answered question 1 in the negative, question 2 in the negative and question 3 in the affirmative.

The question of sentence was then raised. The Sheriff imposed the maximum sentence available on summary prosecution and expressly says that he considered the alternative of community service. We are entirely satisfied that although this was a first offender with a good record the Sheriff was well entitled to consider that community service would not be appropriate in the circumstances and that a custodial sentence was required. He expressly says that his purpose was the increased deterrent effect, as he saw it, of a custodial sentence.

Assuming that a custodial sentence was to be imposed the question becomes whether the Sheriff erred in opting for the maximum of twelve months detention. We would observe that that is the maximum on summary prosecution rather than an overall maximum for this particular offence. Within that limit we are not persuaded that the Sheriff erred in going to the maximum on summary prosecution. Plainly one must explain why one is doing so. What happened here was that the Sheriff said that he resolved to make an example of the appellant explaining some of the background to the possession of Class A drugs in this kind of way. In the present case the appellant was found with Class A drugs in a club and we are satisfied that the Sheriff did not go beyond the limits of his discretion in deciding that this was a case where twelve months was the appropriate sentence. In these circumstances the appeal is refused in that respect.