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Cite as: [2004] ScotHC 50

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Vaughan v. Procurator Fiscal [2004] ScotHC 50 (06 August 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord MacLean

Lady Cosgrove

Lord McEwan

Appeal No: XJ2325/03

OPINION OF THE COURT

delivered by LORD MacLEAN

APPEAL

STEPHEN VAUGHAN

Appellant;

against

PROCURATOR FISCAL, Perth

Respondent:

_______

Appellant: Paterson, Solicitor Advocate; Bruce Short, Dundee

Respondent: Mitchell, A.D.; Crown Agent

6 August 2004

[1] After trial on 26 August 2003 the appellant was found guilty of the following charge:

"that on 26 February 2002 at Police Headquarters, Perth he did refuse to leave his cell and to submit to an internal search in terms of a lawful search warrant obtained by Tayside Police to allow him to be conveyed to Ninewells Hospital, Dundee and there to be examined for the presence of drugs controlled by the Misuse of Drugs Act 1971, by an authorised medical practitioner and this he did with intent to defeat the ends of justice and did attempt to defeat the ends of justice."

[2] The sheriff found as a fact that on 26 February 2002 officers of the Drug Squad of Tayside Police CID received information that two males were travelling to Perth by car carrying drugs. The police officers stopped the car in which the appellant was a passenger. The appellant and the driver were detained under section 23 of the Misuse of Drugs Act 1971 and were taken to the Divisional Headquarters of Tayside Police in Perth.

[3] No drugs were found in the car and no drugs were found on the appellant and the driver, despite a strip search. Nevertheless the officers suspected that the appellant and the driver were concealing drugs within their bodies. Both were asked if they would submit voluntarily to an internal search and both refused.

[4] Warrants were sought and granted for internal searches of the appellant and the driver. The warrant, which is on page 31 of the print, authorised officers of law to convey the appellant to Tayside University Hospital NHS Trust at Ninewells Hospital and there for him to be examined for the presence of controlled drugs within his person by Dr. Bruce Buchan and other medical practitioners and a radiologist if it appeared necessary. The warrant also authorised the medical practitioners to make a search of the appellant by means as seemed to them to be reasonable, including manual examination and general search of the rectum and to carry out the following procedures, namely, proctoscopy, gastroscopy and x-ray.

[5] Once the warrant was obtained its terms were explained to the appellant in the room in which he was being held at Perth Police Headquarters. The warrant was shown to the appellant and he read it. He confirmed that he understood its terms. He was then asked if he would agree to medical examination as specified in the warrant. He stated that he would not co-operate. He gave no reasons for his refusal. He was then informed that he was under arrest for attempting to defeat the ends of justice. To that he made no reply.

[6] As a result of the appellant's stated refusal to co-operate he was not taken from Perth Police Headquarters to Ninewells Hospital. He was not therefore seen by the medical practitioners referred to in the warrant and no internal examination of him, as specified in the warrant, was carried out. He was not subject to any force or physical compulsion at the hands of the police officers to require him to submit to the internal examination and other procedures detailed in the warrant.

[7] The first point which Mr. Paterson, who appeared for the appellant, made to us was that this was not an attempt to defeat the ends of justice. It was important to have regard to the terms of the warrant and these made it apparent that the consent of the appellant was not required. Whether he co-operated or not, made no difference. Therefore the refusal on the part of the appellant to co-operate could not be an offence.

[8] The second and subsidiary submission which Mr. Paterson made was that in any event the appellant's position should have been tested at the hospital when he appeared before the doctors. They were given discretion to apply such means of examination as to them seemed reasonable, and it might well have been that in discussion with the doctors the appellant would have consented to being examined, depending on the particular examination sought.

[9] The advocate depute made reference to what is disclosed on page 5 of the print with regard to the evidence of Detective Constable Alison Christie. She gave evidence that she knew, on the basis of her previous experience, that no doctor would examine someone who had been forced to submit to medical examination. She said that this was the reason why no action was taken by her or her colleagues to force the appellant to go to Ninewells Hospital for examination after he had stated that he would not co-operate with the medical procedures specified in the warrant. In support of this the advocate depute placed before us the BMA Guidelines for Doctors asked to perform intimate body searches. With regard to intimate searches in Scotland the Guidelines provide as follows:

"Where an intimate search is considered necessary in Scotland in the interests of justice and in order to obtain evidence, this may lawfully be carried out under the authority of a sheriff's warrant. As with searches authorised under PACE, however, the BMA and APS consider that such searches should be carried out by a doctor only when the individual has given his consent. If consent is not given, the doctor should refuse to participate and have no further involvement in the search."

This document, of course, was not in evidence at the appellant's trial. We are of opinion that, notwithstanding the appellant's refusal to co-operate in Perth Police Headquarters, he should have been conveyed in terms of the warrant to Ninewells Hospital, Dundee where, under medical advice, his determination not to co-operate could be put to the test. For aught seen, the examining doctor or doctors might have been satisfied simply with an x-ray. That might not have been objectionable to the appellant since its order of invasion of the body was so much less than the other suggested means of examination. Not having been put to the test in terms of the warrant in the presence of doctors at Ninewells Hospital, Dundee, we consider that no crime was committed by the appellant in Perth Police Headquarters when he declared that he would not co-operate. In these circumstances we answer the questions submitted for our opinion as follows:

1. No.

2. No.

We will therefore quash the conviction and sentence.