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Cite as: [2003] ScotHC 34

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Jeffrey v. Procurator Fiscal [2003] ScotHC 34 (05 June 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Osborne

Lady Paton

Temporary Judge C.G.B. Nicholson, C.B.E., Q.C.

Appeal No: XJ214/02

OPINION OF THE COURT

delivered by TEMPORARY JUDGE C.G.B. NICHOLSON, C.B.E., Q.C.

STATED CASE

COLIN JEFFREY

Appellant;

against

PROCURATOR FISCAL, Glasgow

Respondent:

_______

Appellant: Shead; Balfour & Manson

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

5 June 2003

The background to the appeal
[1] On 20 April 2001 the appellant appeared at the District Court in Glasgow for trial on a summary complaint containing a single charge. That charge stated that:

"on 9 August 2000 at Denmark Street, Glasgow, you COLIN JEFFREY did intentionally obstruct Ross Buick and Stewart McNidder, both police officers of Strathclyde Police, then in the exercise of their powers under section 23 of the Misuse of Drugs Act 1971, and did swallow an item suspected to be a controlled drug; Contrary to the Misuse of Drugs Act 1971, section 23(4)(a)".

On the date in question the court was presided over by a relief Stipendiary Magistrate. At the conclusion of the trial the appellant was found guilty as libelled, and he was fined £200. The present appeal is against conviction. Putting it shortly for the moment, the ground of appeal is that the Magistrate erred in refusing a defence motion that there should be a trial within a trial relative to the grounds upon which the police officers named in the charge had purported to detain the appellant.

[2] Before examining in more detail the circumstances in which the foregoing motion came before the court it will be helpful to narrate the facts which, at the end of the day, the Magistrate found to be established in the present case. They are as follows. On the date in question Constables Buick and McNidder were on duty on uniformed mobile patrol in a marked police vehicle in the Possilpark area of Glasgow at Denmark Street. The close at 184 Denmark Street was well known to the police as the haunt of drug users and dealers and, as a result of police intelligence and complaints from members of the public and the housing authority, the area was visited on a daily basis for drugs surveillance by police officers. Evidence was given by Constables Buick and McNidder that, at about 16.50 on the date in question, the appellant was seen to enter the common close at 184 Denmark Street. He emerged some two or three minutes later, walking purposefully. Because the appellant had emerged from the close so quickly, Constable Buick suspected that he had been buying drugs. Accordingly, he pulled the police vehicle up close beside the appellant, opened the door, and told him that he was detaining him.

[3] Constable Buick stated that, when he had opened the door of the police vehicle, the appellant had seemed shocked or worried, or at least surprised. As the Constable emerged from the police vehicle he saw the appellant bring his right hand out of his right hand jacket pocket and bring his hand to his mouth, and he saw the appellant place something in his mouth. After a short interval, and with some difficulty, the appellant swallowed the item that he had put in his mouth. The police officers took hold of the appellant and asked him to open his mouth. He did not open his mouth until he had successfully swallowed the item that he had placed there. He then opened his mouth voluntarily. He was asked what he had swallowed, and he stated: "I'm sorry, a tenner bag". He was then arrested and taken to Maryhill Police Station where he was cautioned and charged with a contravention of section 23(4) of the Misuse of Drugs Act 1971.

The statutory background

[4] Section 23 of the 1971 Act confers certain powers on constables and other persons to search suspects and to obtain evidence in relation to offences under the Act. Of importance in the context of the present appeal is section 23(2) which provides: "If a constable has reasonable grounds to suspect that any person is in possession of a controlled drug in contravention of this Act or of any regulations made thereunder" he may do various things including searching the person in question and detaining him for the purpose of searching him. Subsection (4) goes on to provide that "A person commits an offence if he (a) intentionally obstructs a person in the exercise of his powers under this section". Subsection (4)(a) of section 23 is the provision which the appellant is alleged to have breached in the present case. Given the terms of subsection (2) it follows (and this was not a matter of contention in the present appeal) that there will only be a breach of subsection (4)(a) if it is established that the constable who purported to detain the appellant had reasonable grounds to suspect that the appellant was in possession of a controlled drug in contravention of the Act. If there were no such reasonable grounds for suspicion any subsequent detention and search would be unlawful, and evidence about such matters would be inadmissible.

The Magistrate's approach to a motion for a trial within a trial

[5] What happened in the present case is that Constable Buick was the first witness led for the Crown. The Magistrate narrates that the Constable began his evidence by stating that he had been on uniformed mobile patrol, along with Constable McNidder, in a marked police vehicle in Denmark Street. He was then asked what he had seen there, and at that stage the solicitor for the appellant made the first of what turned out to be a series of objections the purpose of which was to persuade the Magistrate that there should be a trial within the trial. In making those submissions the solicitor for the appellant was relying on what was said by this Court in Thompson v. Crowe 1999 SCCR 1003. In the result the Magistrate repelled all of the motions for a trial within the trial, and she indicated that she would hear the whole evidence in the trial subject to relevancy and competency.

[6] In paragraph 12 of the Stated Case the Magistrate sets out her reasons for that decision as follows:

"In refusing the motion I explained that my over-riding duty was to ensure that the appellant received a fair trial. I did not consider that the decision in Thomson [sic] v. Crowe was binding upon me as that case was remitted to a larger court so that the law and practice relating to objections to the leading of evidence on extrajudicial admissions could be reviewed. I was of the opinion that the case of Stark v. Brown 1997 SCCR 382 was more directly in point and was not over-ruled by Thomson [sic] v. Crowe. I considered that the procedure suggested by [the solicitor for the appellant] would not have the appearance of fairness. I knew that the evidence given by the police officers was disputed by the appellant. I had this in mind as I listened to their evidence. I may have rejected their evidence without the appellant giving evidence. An accused does not have to give evidence before Crown evidence can be rejected as incredible or unreliable. In a trial within a trial the appellant would have given evidence and explained his version of events. The matter would then have become a sharp issue of credibility and reliability. An adverse finding on credibility and/or reliability at that stage would have rendered the further procedure subject to attack on the basis that justice could not be seen to be done."

Submissions for the parties
[7] In presenting the appeal counsel for the appellant submitted that, in refusing the motions for a trial within the trial, the Magistrate had erred in law. He also submitted that the Magistrate's reasons for taking that course, as set out in the passage just quoted, are unsound. Counsel submitted that, in a case under section 23(4)(a) of the Misuse of Drugs Act 1971, any evidence relating to a search or to obstruction on the part of a suspect will be admissible only where the Constables concerned have been found to have reasonable grounds for suspecting that the person in question was in possession of a controlled drug. That is a question of fact and, if disputed, requires to be determined by means of the trial within a trial procedure. On that basis, it was submitted, it could not be said, as was said by the Magistrate in this case, that the first objection, taken when Constable Buick was asked what he had seen, was premature. What the Constable had seen would form the main part of the evidence bearing on the disputed question whether there were reasonable grounds for suspecting that the appellant was in possession of a controlled drug, and accordingly that was the stage in the evidence when the Magistrate should have acceded to the motion for a trial within the trial. In this connection counsel also drew attention to the statutory provision which requires that, if an objection to evidence is to be relied on in an appeal, it must have been stated timeously (Criminal Procedure (Scotland) Act 1995, s. 192(3)(b)).

[8] In relation to the case of Thompson v. Crowe counsel for the appellant submitted, firstly, that, although that case was primarily concerned with the question whether a statement by the appellant had been fairly obtained by the police, it is nonetheless of general application and falls to be invoked in any case where some preliminary matter such as, in this case, the existence of reasonable grounds for suspicion has to be determined in order to decide whether or not evidence of what took place thereafter is or is not admissible. Secondly, counsel submitted that the whole purpose of the trial within a trial procedure, as approved in Thompson v. Crowe, is to allow an accused person to give evidence in relation to that preliminary matter without exposing himself or herself to cross-examination at large in respect of the whole subject-matter of the charge. Counsel drew attention to the summary of conclusions which are set out by the Lord Justice-General at the end of his opinion in Thompson v. Crowe (p. 1043D), and in particular conclusion no. 4 which states: "If the defence ask for the evidence on admissibility to be heard in the absence of the jury, the judge should ordinarily grant that motion". He submitted that that is what should have happened in the present case.

[9] Counsel for the appellant also drew attention to a passage in the Stated Case (at paragraph [5]) where the Magistrate makes mention, in the context of a summary trial, of the need, if there were to be a trial within the trial, to hear all of the Crown evidence a second time in the event that the outcome of such a procedure were to be a finding that the Constables did have reasonable grounds to suspect the appellant of being in possession of a controlled drug. Counsel reminded us that it has now been held by this Court that in summary proceedings it is not necessary to lead the relevant evidence twice, though it may be appropriate that the presiding judge should allow all parties an opportunity to put additional questions to the witnesses concerned (Crooks v. Russell 2002 SCCR 216). That case was, of course, decided subsequent to the trial in the present case.

[10] On the whole matter counsel for the appellant submitted that the Magistrate had misunderstood the import of Thompson v. Crowe, and had misdirected herself in law, with the consequence that there had been a miscarriage of justice.

[11] As a subsidiary argument counsel for the appellant also submitted that the Magistrate had been wrong to reject a defence submission of no case to answer at the conclusion of the Crown evidence. In reaching the decision to reject that submission the Magistrate relied in part on the decision in Stark v. Brown 1997 SCCR 382, but counsel submitted that that was a stronger case from the Crown point of view.

[12] In response the advocate-depute accepted that the law and practice as set out in Thompson v. Crowe is not restricted to the admissibility of statements, but he went on to submit that the conclusion summarised in the Lord Justice-General's opinion, that a judge should 'ordinarily' grant a motion for a trial within a trial, does not mean that such a course of action is always to be seen as obligatory. In the present case, it was submitted, it was not obvious that the appellant would be required to give evidence in relation to whether or not the Constables had reasonable grounds for suspicion, and that had to be contrasted with the situation in cases involving allegedly 'unfairly obtained' statements. The advocate-depute went on to submit that what was in issue in the present case was a question as to what was in the minds of the Constables rather than a question as to what happened. The advocate-depute accepted that, when the appellant eventually came to give evidence after the refusal of the no case to answer submission he put forward a different version of the events but, it was submitted, that does not affect what the police officers were entitled to suspect. By reference to a passage in the concluding part of the Commentary to the report of Thompson v. Crowe the advocate-depute submitted that in some instances it will be entirely appropriate to consider questions of admissibility in the context of a no case to answer submission, and he submitted that the present case is an example of that. In the circumstances he submitted that, while he did not seek to defend everything said by the Magistrate in the Stated Case, she had nonetheless been entitled to follow the course which she did with the consequence that the present appeal should be refused.

[13] The advocate-depute also submitted that the Magistrate had been entitled to reject the no case to answer submission. By reference to the Magistrate's findings-in-fact (in particular finding [1.4]) he submitted that there had been sufficient material in the Crown evidence to demonstrate that the appellant had a case to answer.

The significance of the decision in Thompson v. Crowe
[14] For present purposes it is unnecessary to rehearse at length the substance of the detailed opinions which were delivered in the above case by the Lord Justice-General and by the Lord Justice-Clerk. However, it is necessary to draw attention to four features of the decision in that case which are important and of relevance for the present appeal. First, notwithstanding that most of what is said in the opinions is said in the context of jury trials, it is clear that the decision is to apply not only to trials by jury but also to summary trials (see, for example the comments by the Lord Justice-General at page 1041E and the comments by the Lord Justice-Clerk at page 1048 E-F). In that connection it is also to be noted that, of course, Thompson v. Crowe was itself an appeal against a decision taken by a sheriff in summary proceedings.

[15] Second, although Thompson v. Crowe was itself concerned with the admissibility of a statement which, it was alleged, had been unfairly obtained, it is implicit in the opinions in that case (and is now generally accepted) that the principles underlying the decision apply equally in any case where the admissibility of any evidence is dependent in the first place on certain matters of importance, such as fairness, reasonable grounds for suspicion, and so on, being established as a precondition for the lawfulness and admissibility of subsequent evidence.

[16] Third, although the adoption of a procedure of holding a trial within a trial may have disadvantages, including the lengthening of court proceedings, that is a consequence which must be accepted in the interests of justice. As was said by the Lord Justice-General in Thompson v. Crowe (at p. 1040B):

"For the reasons which I have sought to explain, there are situations where the general duty to ensure a fair trial will impose on the judge a particular duty to hold a trial within a trial since, otherwise, the accused will be unable properly to challenge the admissibility of evidence against him. In such circumstances the holding of a trial within a trial is unavoidable and any attendant practical disadvantages of the procedure, though unfortunate, are the price which society must pay in order to achieve the important objective of ensuring that persons charged with crimes receive a fair trial".

As has been noted above, the recent decision in Crooks v. Russell has removed some of the disadvantages contemplated by the Lord Justice-General, at least in the context of summary trials.

[17] Fourth, and most importantly, where the admissibility of certain evidence is challenged the procedure of holding a trial within a trial offers to an accused person an opportunity to give evidence within a limited context, and without exposing himself or herself to cross-examination at large on all aspects of the charge or charges which that person faces. As was explained by the Lord Justice-General in Thompson v. Crowe (at p. 1039A et seq) the need for such a procedure arises because of the importance which the law attaches to two principles. "The first is the principle that the court should admit only evidence which is admissible according to the rules of the legal system in question. The other is the principle that no man is to be impelled to incriminate himself - meaning inter alia that a person who committed the crime with which he is charged cannot be compelled to contribute to his own conviction by admitting it". A little later on the same page the Lord Justice-General says: "A trial within a trial provides an appropriate procedural solution - permitting the accused to give any evidence necessary to support his objection to the admissibility of a statement but in a manner which means that he does not thereby give evidence against himself in the substantive trial". As the Lord Justice-General put it earlier in his opinion (at p. 1035C), a trial within a trial is used to "cordon off the evidence led in it".

The applicability of Thompson v. Crowe to the present appeal
[18] The four features to which we have just drawn attention make it clear that in the present case the Magistrate was in error when she concluded that the decision in Thompson v. Crowe was not binding on her and that the case is of relevance only in relation to objections to the leading of evidence on extrajudicial admissions. It is not appropriate that we should try to set out all of the situations in which a trial within a trial will be required; but we are in no doubt that such a procedure will be required when, as in the present case, a preliminary matter of fact has to be established in a certain way before subsequent evidence will be admissible. In the present case that preliminary matter of fact was whether or not the Constables had reasonable grounds to suspect that the appellant was in possession of a controlled drug. The evidence bearing on that matter was the evidence of what was seen by, and what was known to, the Constables up to the point when Constable Buick purported to detain the appellant. In the words used by the Lord Justice-General in Thompson v. Crowe that evidence ought, in our opinion, to have been cordoned off.

[19] As has been noted above, the advocate-depute suggested that it was not obvious in the present case that the appellant would be required to give evidence, but that is to miss the essential point of the trial within a trial procedure which is that it provides an opportunity for an accused person to give evidence on the discrete point at issue without risk of cross-examination on wider and more general matters. In some instances, no doubt, an accused person may decide not to give evidence even in the limited context of a trial within a trial, but it would be quite wrong to speculate on whether or not evidence is likely to be given and to base a decision on whether or not there should be a trial within a trial on such speculation. Moreover, it must be kept in mind that the outcome of a trial within a trial will be a decision taken by the presiding judge on questions of fact. That will often involve the formation of views as to the credibility and reliability of the witnesses, including the accused if he gives evidence. Accordingly, the outcome of a trial within a trial will be quite different from what is in issue when a judge is considering a motion of no case to answer. In the latter situation the evidence for the Crown has to be assessed as to its sufficiency on the assumption that it is credible and reliable; but in a trial within a trial the judge has to determine what has been proved taking into account the views which have been reached on the credibility and reliability of the witnesses.

[20] For the foregoing reasons alone we do not accept the submission advanced by the advocate-depute to the effect that in the present case questions of admissibility could quite properly be considered and dealt with in the context of a no case to answer submission. That procedure simply does not involve the determination of questions of fact. Furthermore, if matters are left to the stage of a no case to answer submission the judge will by then have heard further evidence of a kind which may, with the best will in the world, colour his approach to the question whether that evidence was admissible in the first place. Most importantly, by leaving matters to the stage of a no case to answer submission the accused will have been denied an opportunity to give evidence limited to the preliminary issue of fact which required determination, and will then be obliged, as happened in the present case, to give evidence at large in relation to the whole charge without the protection which he would have had under the trial within a trial procedure.

[21] We have noted earlier that the advocate-depute also submitted that what was in issue in this case was a question as to what was in the minds of the Constables rather than a question as to what happened. In our opinion that submission is unsound. The statutory prerequisite to the exercise of the powers conferred by section 23 of the 1971 Act is not simply that a Constable "suspects that a person is in possession of a controlled drug". It is that the Constable in question "has reasonable grounds" for such a suspicion. Whether such reasonable grounds existed at the relevant time is a question of fact, to be determined by consideration of the evidence as to the facts and circumstances which obtained at that time, and it is not simply a matter to be determined by reference to what was, subjectively, in the mind of the Constables concerned. That is a further, compelling, reason why there should be a trial within a trial in a case such as the present one when there is a dispute as to whether there were indeed reasonable grounds for suspicion.

[22] There is one further matter which calls for mention. As we have noted earlier, in the Stated Case the Magistrate gives as one of her reasons for rejecting the defence motions for a trial within the trial that an adverse finding on credibility and/or reliability at that stage would have rendered the further procedure subject to attack on the basis that justice could not be seen to be done. By that we take her to mean that, if there were to be a trial within a trial in the course of which the appellant were to give evidence, if she were at that stage to form an adverse view as to his credibility and/or reliability, and if she were to reject the defence motion regarding the admissibility of certain evidence, she might then be open to the charge that she did not have an open mind on issues of credibility and reliability if the appellant were to give evidence again in the course of the trial. We recognise that such a risk may be present in the context of summary procedure, but we consider that it is simply part of a judge's task and duty in such a situation to approach any subsequent evidence by an accused person in a wholly impartial and unprejudiced manner. Moreover, the Magistrate's concerns in this regard ignore the possibility that, at the end of a trial within a trial, a defence submission that further evidence is inadmissible may well be upheld with the consequence that the problem identified by the Magistrate will simply not arise. In any event, we consider that, for reasons already given, any theoretical risk of the kind suggested is more than outweighed by the need to allow an accused person the opportunity to give limited evidence in a trial within a trial without thereby exposing himself or herself to cross-examination at large.

Conclusion
[23] For all of the foregoing reasons we are satisfied that in this case the Magistrate erred in law by refusing to allow a trial within the trial in order to determine the question whether or not the Constables had reasonable grounds to suspect that the appellant was in possession of a controlled drug, and we are of opinion that her error amounted to a miscarriage of justice. In that situation it is unnecessary for us to consider the subsidiary argument advanced on behalf of the appellant to the effect that the Magistrate erred in refusing a motion that there was no case to answer.

[24] In the circumstances we shall answer the second question in the Stated Case in the affirmative, we shall allow the appeal, and we shall quash the conviction recorded in this case. In view of the nature of that decision the remaining questions in the Stated Case are superseded, and it is unnecessary to answer them.