APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Carloway Lord Nimmo Smith	[2012] HCJAC 4 Appeal No: XC57/11 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL by HER MAJESTY'S ADVOCATE Appellant; against DL Respondent: _______

Appellant: Bain, Q.C., A.D.; Crown Agent

Respondent: Kennedy; Rubens, Lochgilphead

11 January 2012

Introduction

[1] The respondent has been charged on indictment in the sheriff court at Dunoon with two contraventions of the Misuse of Drugs Act 1971: of being in possession of cannabis on 20 March 2010 at Front Street, Inveraray, Argyll contrary to section 5(2) and, on the same day and in the same place, of being in possession of cannabis with intent to supply it to another or others in contravention of section 5(3).

[2] At the first diet, which was held on 17 January 2011, objection was taken to the admissibility in evidence of certain questions put by a police officer and answers given by the respondent while at Front Street on the day in question. The issue concerns the interrelationship in the particular circumstances of the provisions of section 23 of the Misuse of Drugs Act and a suspected person's Convention right of access to a lawyer before being questioned by the police.

[3] Section 23, in so far as material for present purposes, was as at 20 March 2010 in the following terms:

"(1) ...

(2) 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, the constable may -

(a) search that person, and detain him for the purposes of searching him;

(b) search any vehicle or vessel in which the constable suspects that the drug may be found, and for that purpose require the person in control of the vehicle or vessel to stop it;

(c) seize and detain, for the purposes of proceedings under this Act, anything found in the course of the search which appears to the constable to be evidence of an offence under this Act.

...

(4) A person commits an offence if he -

(a) intentionally obstructs a person in the exercise of his powers under this section;

...".

Minor amendments have since been made to section 23, but these are not material for present purposes.

The factual circumstances
[4] At the first diet the sheriff heard evidence from two police officers. No evidence was tendered on behalf of the respondent. The circumstances as established before the sheriff were as follows.

[5] Two police officers in uniform were on the evening in question engaged in stopping motorists as part of a high profile crime breaker scheme. No specific vehicle or persons were being targeted by the scheme. The officers were stationed in Front Street, in the town of Inveraray. They were assisted by a traffic officer. As part of this exercise a police van parked there operated in effect as a police mobile office. A vehicle containing three persons was stopped. The driver was a brother of the respondent, the passengers being the respondent and a 10 year old boy, the son of the respondent's brother. Empty alcohol containers were seen in the vehicle and there was a suspicion that the driver had been drinking. He was breathalysed but with negative results.

[6] The officers also observed cigarette papers and loose tobacco lying about. They formed a suspicion that these items might be connected with drugs. Each of the adults was detained under section 23 of the Misuse of Drugs Act and cautioned at common law. The sheriff does not expressly record that the officers told each of the detainees that he was being detained under section 23; but it may be assumed that, in accordance with standard practice, they did (see infra). A search of the person of the driver was first made, with negative results. The weather was inclement and the child was becoming distressed. He and his father were then placed in the police van. A search of the person of the respondent was then made, again with negative results. A search of the vehicle was then commenced, the respondent being in attendance. On a search of its boot one of the officers found various items, including a jacket. She asked the respondent to whom it belonged. He said that it was his. The officer then proceeded to examine the jacket. In a pocket she found two bars of a brown resinous material. She made her colleague aware of that finding. The respondent was then reminded that he was under caution. He was then asked a number of questions to which he responded. The questions and answers were as follows:

"Q What is this?

A Cannabis.

Q Who owns it?

A Me.

Q Just you? Is this anything to do with Thomas [the respondent's brother]?

A No.

Q Why do you have this much cannabis?

A I don't know. I smoke quite a lot of it you know."

This question and answer procedure occurred at the roadside. Immediately after it the respondent was handcuffed and detained under section 14 of the Criminal Procedure (Scotland) Act 1995.

[7] At no stage during the events which we have described was the respondent advised by the police officers that he could be afforded access to legal advice.

Argument before and disposal by the sheriff
[8] At the stage when the sheriff had to address the admissibility of the quoted questions and answers there were available to him the judgments of the European Court of Human Rights in Salduz v Turkey (2009) 49 EHRR 19 and of the Supreme Court of the United Kingdom in Cadder v HM Advocate (2010) SLT 1125 (now also reported in 2011 SCCR 13). There was not then available the subsequent decision of the Supreme Court in Ambrose and Others v Harris 2011 SLT 1005. The disposal of the third appellant in these appeals (referred to in the judgment as "G") is of particular relevance to the disposal of this appeal. The first argument advanced by the Crown before the sheriff was that neither Salduz nor Cadder applied because at the time of the questioning the respondent was neither at a police station nor detained under section 14 of the 1995 Act. The sheriff rejected that argument. His decision in that respect is, in light of Ambrose and Others, clearly sound: presence in a police station or detention under section 14 are not necessary conditions for the application of Salduz and Cadder. It was also argued before the sheriff by the Crown that at the time of the questioning the respondent was free to leave. The sheriff described that suggestion of liberty as "completely illusory". He added:

"I do not consider that the Panel in those circumstances would ever have believed that he was entitled simply to leave the scene. If he had attempted to do so I have no doubt that he would have been detained even more quickly."

He also reached the conclusion that the questioning was in the circumstances "unfair". He noted in that regard:

"The Panel's car was stopped in Inveraray. There is no manned police office there. However the officers had a mobile police office at the scene. There is a police office in Lochgilphead. There was no suggestion that the officers could not have taken the Panel to Lochgilphead and advised the solicitor of his presence there. They could then have questioned him about the finding of the drugs. They chose not to do so."

The sheriff decided that the incriminating answers quoted above were not admissible for the purposes of the respondent's trial. Against that decision the Crown has appealed.

The Crown's submission on appeal

[9] The Advocate depute submitted that when the relevant questions were put and the answers elicited the respondent was no longer detained and that accordingly the situation addressed by the Supreme Court relative to the third appellant, G, in Ambrose and Others was distinguishable. The personal search of the respondent was over and he could then have walked away. What was happening at the material time was, under section 23(2)(b), a search of the vehicle in which the respondent had been a passenger. The respondent had not yet been detained under section 14 of the 1995 Act. It was consistent with good policing that the police should in a situation such as this - where it was initially uncertain to whom an item found in the vehicle belonged - to ask questions and to note answers. This would obviate the need to take all three occupants of the car to a police station. The mere fact that the respondent was at the time a suspect did not trigger the right to have legal assistance before responding to questions. The respondent's situation was more analogous to that of Ambrose, the first appellant. There was nothing unfair about the Crown's relying on the answers given by the respondent. He had been duly cautioned. By travelling in the vehicle the respondent had subjected himself to a regulatory scheme. Reference was made to Brown v Stott 2001 SC (PC) 43, per Lord Bingham of Cornhill at page 61. The appeal should be allowed.

Discussion

[10] In Renton & Brown - Criminal Procedure at para 7-25 it is stated:

"Where a person is detained and searched under specific statutory powers the police must make it clear that they are acting under these powers."

As noted above, it can be assumed for present purposes that each of the adults was advised that he was being detained under section 23 of the 1971 Act. Each was then cautioned at common law. A search of the person of each of them was carried out. It is not disputed that the constables were entitled to search the respondent and to detain him for the purposes of searching him - that is, that they had reasonable grounds to suspect that the respondent was in possession of a controlled drug in contravention of the statute or of regulations made thereunder.

[11] The events described by the sheriff then occurred. In the course of the search of the vehicle a jacket was found which the respondent acknowledged to be his. (As to this, see below.) In a pocket of that jacket one of the constables found two bars of a brown resinous material. The respondent was again cautioned. Immediately thereafter the challenged question and answer session began.

[12] In addressing whether or not the answers so elicited are admissible in evidence against the respondent, it is necessary to identify his status and situation at that time. In Ambrose and Others Lord Hope said at para [63]:

"It is obvious that the test [for when a person has been 'charged' in the Convention sense] will have been satisfied when the individual has been detained and take into custody. It must be taken to have been satisfied too where he is subjected to what Salduz, p. 436, para 52 refers to as the initial stages of police interrogation. This is because an initial failure to comply with the provisions of art. 6 at that stage may seriously prejudice his right to a fair trial. The moment at which art. 6 is engaged when the individual is questioned by the police requires very sensitive handling if protection is to be given to the right not to incriminate oneself. The mere fact that the individual has been cautioned will not carry the necessary implication. But, when the surrounding circumstances or the actions that follow immediately afterwards are taken into account, it may well do so. The moment at which the individual is no longer a potential witness but has become a suspect provides as good a guide as any as to when he should be taken to have been charged for the purposes of art. 6(1) Shabelnik v Ukraine, para 57. The Lord Advocate submitted that the protection of art. 6(3)(c) was not engaged until the individual was actually taken into custody. But this cannot withstand the emphasis that the Strasbourg Court puts on the consequences of an initial failure to comply with its provisions, as in Salduz, page 453, para 50; see also Zaichenko v Russia [19 February 2009, Application No. 39660/02], para 42".

[13] In the following paragraph Lord Hope opined that the Strasbourg Court had not said, or at least had not said with a sufficient degree of clarity, that a person who has become a suspect and is not in custody must, as a rule, have access to a lawyer while he is being questioned. Applying that understanding, he went on to hold that, subject to questions of fairness, a person who had been cautioned but not detained at the roadside (Ambrose) and a person who had been cautioned but not detained at his home address (N) were not persons who must have access to a lawyer before being questioned. By contrast, a person (G) who had been present in a flat for the search of which the police had obtained a warrant, had admitted to possession of quantity of heroin in his jeans, and had struggled and then been detained and handcuffed, was a person who was entitled to such access. The circumstances of G "were sufficiently coercive for the incriminating answers that he gave to the questions that were put to him without access to legal advice about the items to be found to be inadmissible" (para [71]). Lord Hope added (at para [72]) that "G was, in effect, a detainee when he was being questioned by the police". Lord Dyson, agreeing with Lord Hope, said at para [93]:

"... the decision of the First Section in Zaichenko provides clear support for the view that the Strasbourg jurisprudence draws a distinction between the fruits of police questioning of a suspect who is in detention and one who is not."

At para [115] Lord Clarke said:

"... a right to have access to a lawyer emerges at the point when the suspect is deprived of his liberty of movement, to a material extent, by the investigating authorities and is to be questioned by them".

[14] In Zaichenko, where the applicant had been stopped at a road check and was not "free to leave", nonetheless the circumstances disclosed "no significant curtailment of the applicant's freedom of action" (para 48). In para 49 it is noted that the role of the police in such a situation was to draw up an inspection record and receive the applicant's explanation as to the origin of the cans in his car. Having done so, the police transferred the documents to the inquirer who submitted a report to his superior which prompted him to open a criminal case against the applicant. The applicant was not detained by the police (para 12).

[15] In the present case the Crown do not appear to dispute that, if the respondent had been wearing the jacket at the time he was personally searched, having been detained for that purpose, any answers to questions put immediately on discovery of the two bars of resinous material in a pocket of it, would have been inadmissible. Its position is that, by the time the jacket was found and its contents examined, the respondent's detention had ceased; he was no longer detained. But we agree with the sheriff that this notion of freedom is completely illusory. There is nothing to suggest that the respondent was told by the officers that his detention was over and that he was now free to go. There is nothing in their actions which could suggest to him that he was so free. For aught yet seen, search of the vehicle might have disclosed material which would have led to a resumption of the personal search of the respondent. That would not have required a separate detention for that purpose. Immediately after the question and answer session the respondent was detained under section 14. Once he had acknowledged that the jacket recovered from the boot was his and the bars of brown resinous material had been found in a pocket of it, the officers would have been entitled forthwith to detain the respondent under section 14 - as they would in all likelihood have done, had they decided to ask no further questions at that stage or if the respondent had declined to answer any such questions. Alternatively, he might have been apprehended for a contravention of section 23(4)(a). At the point in time when the challenged questions were put and the answers given (after the second caution), the surrounding circumstances were accordingly such that the answers elicited were, in our view, inadmissible in the absence of the respondent first being afforded access to legal advice.

This is sufficient for disposal of this appeal. In the notice of objection lodged by the respondent under section 71 of the 1995 Act he averred:

"1. ...

2. In the ... search carried out under section 23 witness Ferrier recovered a black gent's overcoat or jacket (Crown Label 3) from the boot of the motor car. On seeing this the panel said that the garment was his. Witness Ferrier then recovered from the left inside pocket of that garment two bars of brown resinous substance (Crown Labels 1 and 2).

3. Witness Bryce without further cautioning the panel or reminding him of the earlier caution asked the panel 'What is this?' The panel gave an answer.

4. About 1852 hours witness Bryce reminded the panel that he was still under caution and asked him more questions about two bars of brown resinous substance. The panel gave answers ...

5. Before asking the questions referred to in paragraphs 3 and 4 above neither witness Bryce nor any other police officer afforded the panel the opportunity to consult a solicitor by phone or in person and no solicitor was present at the time of questioning."

From that narrative it appears that the acknowledgement by the respondent that the garment was his was volunteered by him, rather than elicited in answer to a question from the police. The challenge is restricted to the subsequent questions and answers. On the other hand, the sheriff's narration records that one of the police officers asked the respondent whose jacket it was and that he responded that it was his. It is not altogether clear from the sheriff's report whether his decision relates only to the quoted questions and answers (which are set out in tabulated form) or extends to include any question and answer relative to the ownership of the garment; nor was this matter fully explored before us in argument.

In these circumstances this decision should be taken to apply only to the tabulated questions and answers. In that regard we refuse the Crown's appeal. We remit to the sheriff to proceed as accords. Any dispute about the admissibility of the acknowledgement of ownership of the garment will, if it arises, require to be resolved, in the first instance, by the sheriff.