APPEAL COURT, HIGH COURT OF JUSTICIARY
Appeal No: XJ2325/03
OPINION OF THE COURT
delivered by LORD MacLEAN
PROCURATOR FISCAL, Perth
Appellant: Paterson, Solicitor Advocate; Bruce Short, Dundee
Respondent:Mitchell, A.D.; Crown Agent
6 August 2004 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."
"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:
We will therefore quash the conviction and sentence.