Scottish High Court of Justiciary Decisons

Mallin v. Procurator Fiscal [2002] ScotHC 101 (15 August 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Hamilton Lord McCluskey	Appeal No: 861/02 OPINION OF THE COURT delivered by LORD McCLUSKEY in STATED CASE in the cause STEWART MALLIN Appellant; against PROCURATOR FISCAL, Kirkcaldy Respondent: _______

 

 

Appellant: D. Sheldon; Martin Johnston & Socha

Respondent: F. Gallagher, A.D.; Crown Agent

15 August 2002

1. The appellant appeared before the Sheriff of Tayside, Central and Fife at Kirkcaldy on a complaint containing three charges. This appeal is taken by way of stated case against his conviction, after trial, in respect of the third charge, which was in the following terms:

"The charge against you is that...on 24 December 2000 at Levenmouth Police Station, Sea Road, Methil you STEWART MALLIN did culpably and recklessly conceal a used syringe on your person and fail to disclose said fact to police officers when being searched whereby Ross Fisher, an officer of the Fife Constabulary was injured..."

By the time the appeal was heard, the appellant had served the sentence imposed in respect of this charge and the appeal against sentence did not proceed. The appeal against conviction did proceed upon the grounds narrated in the application for the Stated Case (page 46 of the Print).

2. The findings in fact disclose that in the early hours of 24 December 2000 the appellant was taken to the named police station and was taken to the custody reception area to be "booked in" and searched. He appeared to be in an agitated condition and talked somewhat disjointedly, referring inter alia to "Nancy". One of the police officers who had taken him to the station started to question him. Finding 4 reads:

"He was asked if he had any 'sharps' in his possession and replied '"Dinnae ken'. Then he said, 'I honestly don't know.' He then added, 'I'm sure you'll search me...'. Then another officer stated, 'Do you?' and he replied, 'There's always a chance'. Then he returned to talking about Nancy."

One of the officers went to collect an 'ampel probe', which is described as an instrument like tweezers, used for conducting searches. That implement was given to Constable Fisher, who had already pulled on rubber gloves. Constable Fisher began the search and, in order to search the appellant's jacket pockets with the probe, used his other hand to lift the appellant's jacket at the sleeve. He was intending to insert the probe into a pocket of the jacket. As he was lifting the jacket, he felt his hand picked through the appellant's sleeve; he took his hand back but was not sure what had happened and carried on searching him. The officers questioned the appellant further. The remaining important findings were as follows:

"9. Ultimately, when the officers had managed to obtain information from

him, the appellant's handcuffs were removed and he was told to remove his jacket.

10. The appellant threw his jacket onto the counter quickly and with the

same movement removed an unprotected syringe from his shirt pocket, putting it on to the counter beside the jacket. As he did so, he stated 'I'll just get the syringe out'.

11. Constable Fisher then assumed this syringe had pricked his hand. He

therefore washed his hand and drew blood until it stopped. He was then taken to the Victoria Hospital and given HIV medication.

12. The appellant culpably and recklessly concealed a used syringe on his

person and failed to disclose the fact to police officers when being searched whereby Ross Fisher, a Police Officer of Fife Constabulary, was injury."

3. It will be observed that the findings in fact make no reference to any legal warrant for taking the appellant to the police station or for searching him. In particular, no reference is made to section 23 of the Misuse of Drugs Act 1971 or to sections 13 or 14 of the Criminal Procedure (Scotland) Act 1995. However, in the Sheriff's Note it is recorded, "A female police officer, P.C. Holmes, was trying to complete the section 14 forms." There is no indication as to the precise time when this was happening. It must be assumed, however, that the intention of the police officers was to exercise their powers under section 14 in respect of the appellant.
4. Counsel for the appellant submitted that there was no evidence recorded in the findings in fact of conduct sufficient to justify the charge. He drew particular attention to the full terms of finding in fact 4, which we have already quoted. His submission was that this was a totally different kind of case from what he called the "false denial" cases, of which Kimmins v. Normand 1993 S.C.C.R. 476 (a decision on the relevancy of a complaint) was the clearest example. He did not dispute the principle inherent in that decision, that if a person who knew that he was in possession of needles, and also knew that he was about to be searched by a policeman, denied that he was in possession of any needle, he could be guilty of criminal and reckless conduct in respect of so denying. However, he submitted, there had to be conduct comparable to the act of denying averred in Kimmins v. Normand. There had to be something properly described as "conduct" that was capable of misleading. In this context, counsel noted that there were good reasons to doubt the relevancy of the charge that the present appellant had faced; but no point had been taken about this at the appropriate time. He submitted that the locus was "at Levenmouth Police Station" and that there was no evidence to disclose, or to justify a finding, that the appellant actively did anything at that place that resulted in the concealing of the used syringe about his person. It appeared that the syringe had remained in the appellant's shirt pocket from the time before he was taken to the police station. Properly understood, the charge was in effect that, knowingly having a concealed used syringe on his person, he did fail to disclose that fact to the police officers in the police station when he was about to be searched, whereby one of the officers who thereafter carried out the search was injured. When the charge was properly understood in this way it gave rise at once to the question whether or not the appellant had any duty to disclose that he had a used syringe on his person. Under reference to the terms of finding in fact 4, counsel submitted that the appellant, albeit he must be taken to have known that he had a used syringe in his possession, did not actually say to the police officers that he had no such item in his possession. The words he used (cf. Finding 4) left open the possibility that he had possession of a "sharp". It was also evident that the police who were proposing to search him decided to proceed upon the basis that they needed a probe and rubber gloves, and were therefore not in any way misled by his ambivalent reply, regardless of his lack of honesty and frankness.
5. Counsel further submitted that there was nothing in the case to show that the "conduct" of the appellant on the occasion libelled amounted to "criminal recklessness in the sense of a total indifference to and disregard for the safety of the public". This is a quotation from the Opinion of the Court in W. v. H.M. Advocate 1982 S.C.C.R. 157, a case involving a 14 year old boy charged with culpably and recklessly dropping or throwing a bottle from the fifteenth floor of a block of flats whereby another person was injured. It sets the standard for measuring whether conduct is to be held to be culpable and reckless. Gizzi v. Tudhope, 1982 S.C.C.R. 442 (also quoted in the application for the stated case) was a case in which two men were convicted after trial on a charge that they recklessly discharged firearms in the vicinity of men who were carrying out building works, whereby one of those men was injured and a vehicle driven by the other was damaged. In that case, the court, applied the same type of test as was applied in W. v. H.M. Advocate, under reference to Allan v. Patterson 1980 JC 57 (a road traffic case). In each of these cases in which the conduct had been held to be reckless, the accused had engaged in positive conduct which created danger to others.
6. Counsel also submitted that there was no satisfactory basis for holding, as the Sheriff appeared to have held in finding in fact 12, that the pricking of the constable's hand was caused by the syringe which was later taken from the appellant's shirt pocket. In relation to this point, we can say at once that it has no merit. At the time, the constable concluded that it was this syringe which had pricked his hand. There is nothing at all to suggest that there was any other syringe or other sharp object that might have inflicted this injury; and we consider that the Sheriff was entitled to arrive at the conclusion narrated in that part of finding in fact 12.
7. The Advocate depute invited the court to refuse the appeal. It was indisputable that the appellant knew, before any steps were taken to search him or to adjust his clothing for the purposes of searching him, that he had a sharp object in his shirt pocket, being an object that might cause injury to the person of anyone searching him. Furthermore, as that object was a used syringe, and the appellant was a drug user, it was culpable and reckless for him not to disclose to the police the presence of that syringe. It was maintained that the appellant had a duty to disclose the presence of that object and that that duty was independent of any rights and duties existing under the Misuse of Drugs Act 1971 or the Criminal Procedure (Scotland) Act 1995. A person in the position in which the appellant found himself had a duty to volunteer the information which he had as to the presence of the used needle in his pocket.
8. The only cases to which we were formally referred in relation to the possible existence of the duty for which the Crown contended were Kimmins v. Normand supra and Normand v. Morrison 1993 S.C.C.R. 207, a case decided on the relevancy of a complaint. The complaint in the latter case originally contained the assertion that,

"...at London Road Police Office, Glasgow, knowing that you and your property were about to be searched and having been questioned as to whether there were any sharp objects on your persons or in your property, did culpably and recklessly fail to disclose to [Constables] James McAllister and Alan McLean, then in the execution of their duties, that you had an unprotected needle in your handbag."

It was argued that the charge was irrelevant (though the plea was directed at the competency of the charge). The minutes reveal that on the motion of the prosecutor the court allowed amendment of the charge by deletion of the words "fail to disclose" and substitution therefor of the word "deny", and by the addition of the words at the end "and you did permit the said Alan McLean to place his hand in your said handbag, whereby he was exposed to risk of infection". The Sheriff repelled the plea and an appeal against the decision was abandoned. The feature, therefore, of the cases to which we have been referred is that the accused person, knowing that he was in possession of a concealed sharp object, contact with which could cause risk, actively denied that he had possession of such an article. Thus both were "denial" cases. Gemmell v HM Advocate 1990 G.W.D. 7-366 (where the issue was concerned with penalty) and Donaldson v Normand 1997 S.C.C.R. 351 (where the issue was mens rea) appear to have proceeded upon the same basis.

9. The difficulty with the Crown's position in the present case is the absence of a basis for the alleged duty to volunteer positive information about the presence of the needle in the appellant's shirt pocket. The appellant in Kimmins had been lawfully detained in terms of section 23(2) of the Misuse of Drugs Act 1971. That section gives a constable powers to search the person suspected of being in possession of a controlled drug and to detain him for the purpose of searching him. It also creates - see subsection (4) - an offence of intentionally obstructing a person in the exercise of his powers under this section and an offence of concealing from a person acting in exercise of his powers under subsection (1) books, documents, stocks or drugs mentioned in subsection (1). The section does not create an positive duty upon the person being searched to volunteer information about paraphernalia used in connection with the abuse of drugs. However, when a person is detained under section 23, the right of the constable to search him is plain; and a person who positively attempts to mislead the constable who is about to exercise his statutory power, by lying about his possessing a concealed sharp and dangerous object, is clearly guilty of conduct which is culpable and reckless. Section 23(3) has no bearing on the present case. Section 14 of the 1995 Act gives power to a constable to detain a person and to take him as quickly as is reasonably practicable to a police station or other premises. However, that section also creates a duty upon the constable, when he detains a person under section 14(1), to inform the person of his suspicion, of the general nature of the offence which he suspects has been or is being committed and of the reasons for his detention; and subsection (7) confers upon the constable the right to "exercise the same powers of search as are available following an arrest". It is thus clear that the officers, assuming that they were exercising their powers under section 14, had a right to search the appellant on the occasion libelled in the present complaint. However, subsection (9) provides:

"A person detained under subsection (1) above shall be under no obligation to answer any question other than to give his name and address, and a constable shall so inform him both on so detaining him and on arrival at the police station or other premises."

There is nothing to indicate that the appellant in this case was given any such information. It may be that the stage had not yet been reached when the constables thought it appropriate to give the appellant such information. We are left in ignorance about that. However, given the terms of the subsection, it is difficult to spell out of the circumstances narrated in the present case a positive duty upon the appellant to "volunteer" information, particularly information pertaining to his possible involvement in criminal activity (under the Misuse of Drugs Act 1971).

10. The Advocate depute advanced only the one argument. The culpable and reckless conduct lay in the failure of the appellant, knowing what he knew, to "volunteer" information to the police to the effect that he had in his shirt pocket a used syringe, unsheathed and capable of pricking the hand of any of the officers who, as he certainly knew, were about to search his clothing. He did not submit that the appellant's responses could be construed as a positive assurance that he had no such item about his person. The Advocate depute was unable to cite any authority for the proposition that, in circumstances such as those established at the trial, a duty to volunteer information arose. Nor was he able to explain how such a duty was consistent with the right of a person detained under section 14 to remain silent on such a matter. In the absence of any such authority we are unable to hold that the appellant was under a duty to volunteer the information desiderated. We are not to be taken as holding that no such duty could ever arise. Nor are we holding that "conduct" in such a context has necessarily to take the form of a positive acting; it is not difficult to conceive of possible situations in which a failure to give a warning, when one is necessary in order to avoid an unexpected danger, might be regarded as culpable and reckless conduct. Our decision is limited to the circumstances of this case.
11. In our view, the difficulties for the Crown in this case are inherent in the terms of the charge which the appellant faced. Properly read that charge is one of failing to disclose the possession of a concealed, used, unprotected syringe about his person. We have not been persuaded that the Crown has shown any basis for holding that a positive duty of disclosure arose in the circumstances of this particular case. It would be difficult to hold that a person who exercised his right under section 14(9) of the 1995 Act in such circumstances had failed in a positive duty to disclose his possession of a used syringe. It is plain that the charge in the present case is in entirely different terms from the charges considered by the court in the cases of Kimmins v. Normand and Morrison v. Normand.
12. We decide this case on its own facts. We express no view as to whether or not it would be possible in comparable circumstances to aver and establish in evidence a background giving rise to a positive duty of disclosure. We simply hold that, in the present case, and having regard to the particular facts established, and to the terms of the charge itself, no proper basis for such a duty has been established. We should be reluctant to make any decision that might result in exposing police officers to unnecessary danger when carrying out their duties. However, we doubt if any police officer would rely on a statement by a drug addict who was about to be searched to the effect that he did not have any unprotected needles in his clothing. Certainly the officers in the present case did not search the appellant's clothing on the basis that he had assured them he had no such needles. He gave them no such assurance and they took the steps that they deemed appropriate to searching a person who might have such a needle or needles about his person.
13. In these circumstances we do not find it necessary to deal with the other matters argued before us. We shall answer the second question in the negative. It is unnecessary to answer questions 1 and 3.