Scottish High Court of Justiciary Decisons

VICKY ROY THOMSON SKIRVING v. PROCURATOR FISCAL, CUPAR [1999] ScotHC 54 (9th March, 1999)

This is an appeal by stated case by Vicky Skirving against a conviction in the Sheriff Court at Cupar on 20 May 1997 of an offence in terms of Section 5(2) of the Misuse of Drugs Act. The case was originally stated on a number of points, not all of which are insisted in. What happened, putting matters briefly, was that as a result of certain information the police stopped the vehicle in which the appellant was present. They then proceeded under Section 14 of the Criminal Procedure (Scotland) Act 1995 to detain her and further took possession of and searched a handbag that she had in her possession and under her control. In the handbag they found certain quantities of amphetamine.

It was accepted by counsel that at this stage that the constables involved had already had reasonable grounds for suspecting that the appellant had committed or was committing an offence punishable by imprisonment. They therefore had in those circumstances the power to detain which is conferred by Section 14(1) of the 1995 Act. Given that they had that power, the detention of the appellant was justified under that section; and in terms of sub-section (7) it is provided that where a person is detained under sub-section 1 a constable may inter alia exercise the same powers of search as are available following an arrest.

The appeal proceeds upon the basis that there was no sufficient power to search. It was however conceded by counsel that in general upon arrest and therefore also upon detention, there is a discretionary power in the police to carry out a search of the person. It was not suggested that this case involved any specific abuse of power or misuse of power. It was accepted that a search of the person would include a search of clothing, including search of pockets. The question was however raised as to whether that extends beyond clothes actually worn, and pockets of such clothes, to such an article as a handbag which is perhaps to be distinguished from clothes which are being worn.

Attention was drawn, and argument before the sheriff seems to have turned upon, the terms of Section 23 of the Misuse of Drugs Act. That section of course provides powers of search and for detention when search is the object of the exercise. However, it appears to us that Section 23 of that Act was neither invoked nor required. The powers conferred by Section 14 were such as to cover search of the handbag. It does not appear to us that search in general terms is limited so as to exclude a handbag while including pockets and the like. In our opinion there is no merit in this appeal and it is refused. The sheriff was entitled to convict.