Scottish High Court of Justiciary Decisons

Forrester v. Her Majesty's Advocate [2002] ScotHC 4 (15 February 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Cameron of Lochbroom Lady Cosgrove Lord Kingarth	Appeal No: 808/01 OPINION OF THE COURT delivered by LORD KINGARTH in NOTE OF APPEAL AGAINST CONVICTION by GEORGE FORRESTER Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: Shead; Balfour & Manson

Respondent: Armstrong, Q.C., A.D.; Crown Agent

15 February 2002

1. On 17 October 2000 the appellant was convicted after trial in the High Court at Glasgow of the charge that on 26 June 2000 at Bartholomew Street, Glasgow and elsewhere he was concerned in the supplying of cannabis resin to another or others, contrary to the Misuse of Drugs Act 1971, section 4(3)(b).
2. It is accepted that the Crown case depended on evidence as to the finding by police officers of a quantity of controlled drugs in the boot of his motorcar. The sole ground of appeal is that the trial judge erred in repelling an objection to the admissibility of that evidence.
3. After objection was taken, and having heard evidence in a trial within a trial, the trial judge found that on the relevant date two detective officers had been on mobile patrol in an unmarked police vehicle in the general area of Bartholomew Street and Dalmarnock Road, Glasgow. While they were driving in Bartholomew Street they had noticed the appellant standing in Bartholomew Street using his mobile telephone. They were not suspicious of the appellant and continued on their patrol. They returned about 15 minutes later when they were driving in Dalmarnock Road. As they reached the junction of Dalmarnock Road and Bartholomew Street they saw the appellant putting a rucksack into the back of a motorcar. He was acting suspiciously in respect that he was looking round as he put the rucksack into the car and made eye contact with the police officers. The police officers drove past the junction losing sight of the appellant but did a U turn a few seconds later and entered Bartholomew Street. The appellant was no longer there but the motorcar was still parked. The boot was not closed, being ajar by about 5 or 6 inches. The police officers checked the vehicle and found the doors to be unlocked. They opened the doors to check for any sign of interference with the ignition switch or other signs that it had been stolen or broken into. There were no such signs. They lifted the boot lid to look inside the boot and on doing so noticed, within the rucksack, packages which they suspected contained drugs. The packages were clearly visible and the officers' suspicion concerning drugs was due to the nature of the wrapping of the packages. They had no suspicion concerning drugs until they saw the packages. One of the officers cut one package to look inside and their suspicion was confirmed. In his report the trial judge notes that Detective Constable Stewart explained that if, in the course of his duties, he came across a vehicle with its boot open, as in this case, he would be suspicious of the vehicle and would check it out. The trial judge also makes it plain that he concluded that although the officers in this case were suspicious of the appellant, the insecure state of the vehicle independently caused them to investigate it. The trial judge rejected the submission that there had been an unlawful search. Further, under reference to Lawrie v. Muir 1950 JC 19, he indicated that even if there had been an irregularity he would have admitted the evidence.
4. The primary submission on behalf of the appellant was that what had been done amounted to a search of the boot of the car which, in the absence of a warrant, which could and should have been obtained, was unlawful. Although it was accepted that each case would depend on its own facts and circumstances, there were a number of similarities with the case of Graham v. Orr 1995 S.C.C.R. 30. In that case the appellant had been arrested on a drink driving charge. His vehicle was taken to the police station. Although released from his arrest his behaviour gave rise to certain ill-defined suspicions on the part of a police officer. The constable then opened the boot and discovered controlled drugs. In holding that the constable had carried out an unlawful search the Lord Justice General said:

"In our opinion, the constable had no power at common law to search the appellant's motor-car. It is quite clear from the narrative of the constable's evidence that, while he was suspicious about something, his suspicion had not developed to the point of suspecting that the appellant had committed any offence. We can find nothing in the narrative of this evidence which would have justified a search under the common law power and we consider that the advocate-depute was right not to attempt to press that point. The question then is whether what the constable did amounted to a search. The narrative which we have been given is that he had previously locked the car, retaining the keys. What he did was to go back to the car, unlock the door and open it. He then looked inside it and saw the plastic bag stuffed into the parcel shelf. It was not until he had opened the car door that he saw the bag. In our opinion, his actions can only be explained as amounting to a search of the car in order to see what was inside it. No doubt it is a question of degree whether premises have been invaded to the extent necessary to amount to a search of them, but in the present case the search began as soon as Constable Scott opened the car door. It follows that, since on the facts of this case what Constable Scott was doing was to conduct a search of the car without having a power to do so, the evidence of what he found inside the car was inadmissible."

By contrast the circumstances of Baxter v. Scott 1992 S.C.C.R. 342 were very different. In that case the appellant was arrested on a charge of driving with excess alcohol. The police drove his car to the police station where they opened the boot and found certain incriminating tools in it. It was held that the opening of the boot was not something done in the course of a search for evidence and that the police, having properly taken possession of the car and being responsible for its contents, were entitled to make themselves aware of the nature of these contents and that the evidence was accordingly admissible.

5. The advocate depute submitted in the first place that it could not be said that the officers carried out a search of the boot. Rather on the facts found they were engaged on what could be described as an investigation or check. A search implied that something in particular was being looked for. In this case the officers did not know what, if anything, they might find. The circumstances of the case of Graham v. Orr were very different. In particular the search there was carried out because of a suspicion focused on the appellant and the boot of the car was locked prior to being opened. Secondly, in any event, any search in this case was lawful. Having found that the vehicle was unlocked and seeing the boot ajar, the circumstances were such that an immediate, on-the-spot investigation was reasonably required. Checking the boot was an extension of the checks they had already made inside the car, the legitimacy of which was not questioned. For all they knew, there could have been perishable or dangerous items in the boot or even an abandoned baby. The trial judge was right to suggest, as he had, that if a police officer noted premises with a door ajar he would be entitled, in the absence of the householder, to push the door further open to enable him to gain access to check that there was nothing amiss. He would be open to criticism if he did not.
6. We have come to the view that the appellant's submission falls to be rejected. As was accepted each case must depend upon its own facts. Even if it is right to describe what the officers did when they lifted the lid of the boot further and looked into it as a search (as to which we have some doubt) the circumstances were plainly such that - for the reasons advanced by the advocate depute - immediate, on-the-spot, and thus lawful, investigation was reasonably required.
7. Although counsel for the appellant also argued that the trial judge had erred in so far as he indicated that he would, in any event, have admitted the evidence, we do not, in the result, need to deal with that submission.
8. The appeal against conviction is refused.