Scottish High Court of Justiciary Decisons

 

HIGH COURT OF JUSTICIARY
	[2013] HCJ 71 IN708-12   OPINION of LORD JONES   in causa   HER MAJESTY'S ADVOCATE   against   P.B. AND V.W.   __________

 

 

Crown: Taylor, advocate depute; Crown Agent

Accused: Brown, advocate; Reilly Cassidy, solicitors

 

8 May 2013

Introduction

[1] The accused in this case are indicted on three charges of contravening section 4(3)(b) of the Misuse of Drugs Act 1971 ("the 1971 Act") and one of contravening section 5(2) of the same statute. This prosecution arises from a surveillance operation which took place on 18 November 2011, as a result of which the first accused (to whom I shall refer as "the minuter") was detained and his vehicle was searched, purportedly under the provisions of section 23(2) of the 1971 Act. The minuter has lodged two minutes, objecting to the admissibility of certain prosecution evidence.

[2] In the first of these, the minuter objects to the admissibility of any evidence arising from the surveillance operation. He submits that it was unlawful, not having been authorised in terms of the Regulation of Investigatory Powers (Scotland) Act 2000. In the alternative, he challenges "the observations that the surveillance officer claims to have made and further submits that the observations could not amount to 'reasonable grounds' for his detention and search and the search of (his) vehicle in terms of section 23(2) of the Misuse of Drugs Act 1971". The minute continues in the following terms:

"... the Crown case is that as a result of the search carried out by the search and detention officers controlled drugs were recovered from the vehicle. As a result, search warrants were obtained to search the loci specified in the charges on the indictment. Believed and averred that said search warrants were granted on the basis of the said unlawful search of the vehicle. The loci were searched and Label Productions recovered as result. The searches of the loci were unlawful, premised as they were on information obtained as a result of an unlawful search of the minuter and vehicle by the detention and search officers."

 

In the second minute, the minuter narrates that police officers interviewed him three times, during the course of the police investigation. His challenge to the admissibility of certain statements which he made during these interviews is made in the following terms:

"ii. That prior to asking the minuter questions, police officers failed allow the minuter an opportunity to consult with a solicitor.

ESTO (sic)

 

iii. That prior to asking the minuter questions, police officers asked the minuter if he wished to have access to a solicitor. The minuter declined access to a solicitor. The police officers proceeded on the basis that the minuter had waived his right to a solicitor and completed forms known as "Solicitor Access Recording Forms".

 

iv. That the police officer's questions constituted an interview of a detained suspect. The minuter was not in a position to waive his right of access to a solicitor as he had not been properly informed of the legal and evidential consequences of doing so.

 

vi. (sic) Furthermore, the minuter had been unlawfully detained and searched and given to believe that he had been subject to surveillance despite the fact that no surveillance had been authorised in respect of the minuter. Additionally, police officers had indicated to the minuter that they were considering arresting his partner (the minuter's now co-accused), who is the mother of the minuter's young children and whom the minuter refers to as his wife, and the minuter had gleaned the impression that if he cooperated with the police by not asking for a solicitor that this would have the effect of the police not arresting or questioning his partner. The minuter was interviewed on three separate occasions. Prior to the third interview, after the minuter had been informed that his partner had been detained by police, the minuter requested access to a solicitor. Officers informed the minuter that they could not contact the solicitor the minuter requested. At that point the minuter again indicated that he waived his right to access to a solicitor. In these circumstances the minuter was disorientated and upset and not in a position to give his informed waiver of his right to a solicitor."

 

[3] The matter came before me for an evidential hearing in the High Court of Justiciary at Edinburgh on 26 March 2013. At the commencement of proceedings I was advised by Mr Brown, advocate for the minuter, that the challenge to the lawfulness of the surveillance operation was departed from, as was a devolution minute which had been lodged.

[4] I heard evidence on 26 and 27 March, and parties' submissions on the latter day. At the conclusion of the hearing, I continued the case until 24 April. I had intended to give my decision on that day, but further authorities had come to my attention which had not been cited to me during the hearing, and I asked to be addressed on these cases when the matter called again on 24 April. That was done and, at the conclusion of the hearing on 24 April, I ruled that the crown had not established that the section 23(2) detention and search were lawful, that a subsequent detention effected under the provisions of section 14(1) of the Criminal Procedure (Scotland) Act 1995 was unlawful, and that evidence of the first two of the three interviews is inadmissible. I advised that I would give my reasons in writing in due course, which I now do.

 

The evidence relevant to the section 23(2) challenge
[5] Evidence was led first by the crown, on the view that it had the onus of proving, on a balance of probabilities, that the section 23(1) detention was lawful. The minuter then gave evidence on his own behalf. The main thrust of the evidence on the section 23(2) issue was not controversial. On 18 November 2011, a team of officers from Strathclyde police was carrying out an authorised covert surveillance operation, in Glasgow, concerning a named individual. During the course of that operation, a known associate of the named individual was seen to enter a black Vauxhall Astra carrying a package, which officers suspected contained controlled drugs. The associate drove off in the Astra, and was followed by members of the surveillance team from Glasgow to Glenrothes. On arrival in Glenrothes, the Astra was seen to stop in a side street, on the same side as a stationary Ford Transit van. The vehicles were facing each other, next to the pavement on what was, for the Astra, the offside of the street. The associate got out of his car, went up to the passenger side of the van, and exchanged a few words through the open passenger door with the driver, the now minuter. The associate then returned to the Astra, entered it and drove off. The Ford Transit drove off immediately after. Nothing was seen to be passed from the driver of the Astra to the minuter, but officers thought that the package might have been transferred. The decision was taken to detain the minuter under the provisions of section 23(2) of the 1971 Act. In order not to compromise the integrity of the covert operation, local uniformed officers were to be instructed to effect the detention.

[6] Two police officers from Fife Constabulary were involved in the detention. Only one of them, Constable Colin MacGregor, gave evidence. He testified that he was on mobile patrol with police Sergeant Shirley Fleming on the evening of 18 November 2011, when Sergeant Fleming received a call on her mobile phone. The advocate depute queried whether the call had come on a mobile phone, and Constable MacGregor replied that it may have been on her personal radio, and that it was a "police communication". At first, he said that the call had come at about 18:00 or maybe 18:30 hours, but then accepted that it could have been later. When asked about the source of the call, Constable MacGregor said that he was "unaware of the exact location where it came from". The officers were told that they were to be on the lookout for a Ford Transit van, registration number AK56 BBO, and that, as Constable MacGregor put it, "we were informed there may well be a controlled drug within the vehicle". At 7:35pm they saw the vehicle being driven by the minuter in Jamphlars Road, Cardenden. He was the only occupant. The van turned into Jamphlars Road Garage, where the minuter operated a business, and came to a halt. Sergeant Fleming informed the minuter that he was being detained in terms of section 23 of the Misuse of Drugs Act, for the purposes of a search. She then cautioned him at common law and asked him if there were controlled substances in the vehicle. The minuter replied: "Aye there is". Sergeant Fleming asked: "where are they?", and he said "in the passenger side, on the floor". When asked by Sergeant Fleming what it was, the minuter replied "I think diazepam". Two other police constables then arrived at the locus. The van was searched and a carrier bag was found in the footwell on the front passenger's side. On examination, the bag was found to contain a number of sealed foil packages, which are now label production 16. "In light of that discovery", as Constable MacGregor put it, at 19:50 hours Sergeant Fleming formally detained the minuter in terms of section 14 of the Criminal Procedure (Scotland) Act 1995. The minuter made no reply and was then taken by officers to Dunfermline police station. Sergeant Fleming and Constable MacGregor remained with the van until Detective Constables Wotherspoon, Scarborough and Mann arrived at 8:45pm.

[7] As I have said, Sergeant Fleming was not called to give evidence. Constable MacGregor, however, gave evidence about what "we" were told, and what "we" did. In determining the issue which has to be resolved in this case, therefore, I must assume that Sergeant Fleming's state of knowledge at the time of the detention was no different from that of Constable MacGregor.

[8] Detective Constable Scarborough gave evidence, and testified that, at 8 o'clock that evening, he was made aware that two "road policing officers" had stopped a van. He, together with Detective Constables Wotherspoon and Mann, made their way to Jamphlars garage, where they learned that the minuter had been detained by officers. The van was searched again, this time by Detective Constables Scarborough and Wotherspoon. They found label production 16 in the passenger footwell. The contents looked like they might be drugs, and the bag was seized. The van was transferred to police recovery, and the officers returned to Dunfermline police station. Detective Constable Wotherspoon was tasked with obtaining a search warrant for the minuter's home and business premises.

 

Submissions on the detention and search issue
[9] It seemed to me that it would be appropriate for Mr Brown to open the discussion, given that it was his contention that the detention of the minuter and subsequent search of the van were unlawful and that the incriminating statements made by the minuter during subsequent interviews were unlawfully obtained. He began by addressing the detention and search issue. So far as is relevant, section 23(2) of the 1971 Act is in the following terms:

"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 or orders made thereunder, the constable may-

(a) search that person, and detain him for the purpose 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."

 

[10] It became clear at an early point in his submissions that Mr Brown was going to invite me to hold that the officers who were involved in the surveillance operation did not have reasonable grounds to suspect that the minuter was in possession of a controlled drug. Standing the terms of the section 23(1), I suggested to him that the question ought rather to be whether Sergeant Fleming had such reasonable grounds. Mr Brown then addressed me on that issue and submitted that the information which was passed to the Fife officers did not give them grounds to suspect that the minuter was in possession of a controlled drug. The advocate depute argued the contrary position. In his written submissions, which were provided for my assistance, he concentrated on the observations made by those officers who were engaged in the surveillance operation. He concluded his factual analysis in this way:

"Whilst we do not know the precise details of the information passed to Fife Constabulary, it is submitted that the circumstances were clearly sufficient to raise a 'reasonable cause to suspect' in their minds, and that Fife Constabulary were clearly entitled to treat this source of information as reliable and that when the information was placed in their hands it likewise gave them the requisite 'reasonable cause to suspect'."

 

In the course of his oral submissions, the advocate depute asked me to read the word "cause" as "grounds", which I have done.

[11] The following cases were referred to in argument: Houston v Carnegie ("Houston") 2000 SLT 333; Stark v Brown ("Stark") 1997 JC 209; Campbell v HMA (Campbell) 1992 JC 6; Ireland v Russell ("Ireland") 1995 JC 169; and Cooper v Buchanan ("Cooper") 1996 SCCR 448.

 

Discussion on the detention and search issue

[12] Houston was concerned with the application of section 14(1) of the Criminal Procedure (Scotland) Act 1995 which provides, among other things, that, where a constable has reasonable grounds for suspecting that a person has committed or is committing an offence which is punishable by imprisonment, the constable may detain that person. During the course of a summary prosecution, the appellant objected to the admissibility of evidence which had been obtained following his detention under section 14, on the ground that the detention had been unlawful.

[13] The opinion of the court was delivered by Lord Prosser, who records that the police had been engaged in an undercover operation in connection with certain premises from which it was believed that controlled drugs were being supplied. One of those involved in the operation was Constable Hutchison. He and his colleagues had been informed that the principal suspect was a man called Munro. Further, police officers had made test purchases at the premises and had concluded that a number of male persons had been involved in selling controlled drugs at the same time as Munro. On the evening of the appellant's detention, Constable Hutchison and others were tasked to detain Munro and several other named persons, under section 14. The appellant was not one of those named persons. At about 10 o'clock in the evening, Munro was pointed out to Constable Hutchison, by another officer, standing outside a club "a very short distance away" from the suspect premises. The appellant was one of four people standing in a group with Munro. Constable Hutchison, who did not know the appellant, was instructed by another officer to detain Munro and the four persons standing with him. The sheriff found that Hutchison did not apply his own mind to the question whether he had reasonable grounds for suspecting that the appellant had committed, or was committing, an offence punishable by imprisonment, but he found that, nonetheless, Hutchison did, in fact, have reasonable grounds for so suspecting. What is described as the "broad issue" in the case was whether the test to be applied was an objective one: whether a constable may have reasonable grounds for suspecting that a person has committed an offence without having applied his or her mind as to whether there were such reasonable grounds. The court declared itself to be "entirely satisfied that the test is indeed an objective one", and continued:

"Two people may well have the same information, one of them may proceed to consider the question of whether there are reasonable grounds for suspicion and the other may not proceed to that stage. If someone is then detained by the latter of these persons, we are satisfied that the detention will still be justified if there were reasonable grounds for suspicion. Where more than one officer is involved, such a situation is unsurprising.

 

The question however becomes, in this case, whether, objectively, Constable Hutchison did have sufficient knowledge and information to constitute reasonable grounds for suspecting that the appellant had committed, or was committing, an offence.

 

The matter is slightly complicated because another officer gave evidence of further matters which would perhaps provide a better basis for suspicion. That was however knowledge not available to Hutchison or not spoken to as having been available to Hutchison; and while the sheriff is uncertain as to whether he himself took it into account, he proceeds upon the basis that it must be left out of account. The question for us is whether Hutchison had knowledge and information which could constitute reasonable grounds.

 

...

 

It is clearly a matter of degree and circumstances whether there are sufficient

facts to constitute reasonable grounds."

 

In the result, the court held that, on the facts, "there was... insufficient material to justify holding that there were reasonable grounds for the suspicion in question."

[14] Three observations fall to be made about the court's reasoning in Houston. The first is that the existence of suspicion and of reasonable grounds were considered to be separate matters. The second is that, although the court does not say so in terms, it is clear, in my view, that the existence of the relevant suspicion is determined by a consideration of what was in the arresting or detaining officer's mind at the time of arrest or detention. If there were any doubt about that, the position is made abundantly clear in MacAuley v HMA 2009 SCCR 566, to which I was referred during the April continued hearing. In that case, in an evidential hearing on the admissibility of evidence of a search, neither officer who conducted the search was asked whether he or she, respectively, had the necessary suspicion at the material time. It was on that point that the challenge to the lawfulness of the search was mounted. The sheriff held that the search was lawful, finding, as a matter of inference, that the officers did have the necessary suspicion. The High Court held that such inference was open to the sheriff. In the concluding sentence of the opinion of the court, Lord Mackay of Drumadoon said this:

"It may be added that the issue of whether Detective Constable Keith had entertained the relevant suspicion would have been readily resolved had he been asked explicitly about that matter. Prosecutors may wish to bear this in mind."

 

[15] The third observation is that the fact that the detention is effected in obedience to an instruction given by a "superior officer" is insufficient to constitute "reasonable grounds". Indeed, the court does not appear to have considered it as constituting any ground for suspicion.

[16] Stark was a section 23(2) case. The opinion of the court contains no statement of principle, and the case was decided on its own facts. It is to be noticed, however, that the court held that the police officers who detained the appellant had reasonable grounds to suspect that he was in possession of a controlled drug, on the basis of a number of observations made by the officers themselves, together with their knowledge that the close where the appellant was detained was known as a place where drug addicts and dealers congregate. The court pronounced itself satisfied that the test had been met "when these various factors are put together and taken in combination".

[17] The advocate depute cited the cases of Campbell, Ireland and Cooper in support of the proposition that "information received" is a legitimate basis (if timeously acted upon) to have "reasonable grounds to suspect". He submitted that the source of the information which was passed to Sergeant Fleming and Constable MacGregor (i.e. the Strathclyde police surveillance officers) "is clearly one upon which the Fife Constabulary were entitled to rely, thus legitimately founding their own "reasonable grounds to suspect". I have no difficulty in accepting the proposition that information received may constitute reasonable grounds to suspect. The source of the information, if known to the arresting or detaining constable, may be a relevant fact to be taken into account in determining whether the officer had reasonable grounds for suspicion. I should say at this point, however, that there was no evidence that either of the Fife officers knew the source of the information. Constable MacGregor said, in terms, that he did not know its source.

[18] In searching for further statements of principle to guide me in addressing the question of what may and may not constitute reasonable grounds for suspicion, I encountered the cases of O'Hara v Chief Constable of the Royal Ulster Constabulary ("O'Hara") 1997 AC 286 and Raissi and Another v Commissioner of Police of the Metropolis ("Raissi") 2009 QB 564, and I invited submissions on them from parties in advance of the continued preliminary hearing.

[19] O'Hara was concerned with the application of section 12(1) of the Prevention of Terrorism (Temporary Provisions) Act 1984, ("the 1984 Act") which provides as follows:

"a constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be ... (b) a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this Part of this Act applies; ..."

 

Whilst the wording of that provision is different from that of section 23(2), "reasonable grounds for suspecting" as opposed to "reasonable grounds to suspect", their lordships of the judicial committee appear to have regarded these phrases as interchangeable, and the advocate depute did not seek to draw any distinction between the two formulations. In the course of his speech, Lord Steyn commented that it had not been clear from the printed cases what, if any, issue of general public importance was raised by the appeal, but that such an issue emerged during oral argument. It was submitted on behalf of the chief constable that an order to arrest given by a superior officer to an arresting officer was, by itself, sufficient to afford the constable a reasonable suspicion within the meaning of section 12(1). (Page 290C) Describing the point as one of continuing relevance to the legislation which had by then superseded the 1984 Act, Lord Steyn observed that the point was also of wider importance.

[20] In addressing the issue which the judicial committee had to determine, Lord Steyn considered the constitutional framework within which stood the statutory provision under consideration, quoting the following passage from the speech of Lord Diplock in Muhammad-Colgate v Duke 1984 AC 437:

"My Lords, there is inevitably the potentiality of conflict between the public interest in preserving the liberty of the individual and the public interest in the detection of crime and the bringing to justice of those who commit it. The members of the organised police forces of the country have, since the mid-19th century, been charged with the duty of taking the first steps to promote the latter public interest by inquiring into suspected offences with a view to identifying the perpetrators of them and of obtaining sufficient evidence admissible in a court of law against the persons they suspect of being the perpetrators as would justify charging them with the relevant offence before a magistrates' court with a view to their committal for trial for it. The compromise which English common and statutory law has evolved for the accommodation of the two rival public interests while these first steps are being taken by the police is twofold: (1) no person may be arrested without warrant (i.e. without the intervention of a judicial process) unless the constable arresting him has reasonable cause to suspect him to be guilty of an arrestable offence; ... (2) a suspect so arrested and detained in custody must be brought before a magistrates' court as soon as practicable ..."

 

[21] The advocate depute in this case conceded that there is no difference in principle between the law of England and that of Scotland on these matters. In my view, that concession was correctly made. Indeed, some of the relevant statutes are common to both jurisdictions, including the 1984 Act.

[22] Following his quotation of the passage from Muhammad-Colgate, Lord Steyn continued:

"Lord Diplock made those observations in the context of statutes containing provisions such as section 12(1). He said that the arrest can only be justified if the constable arresting the alleged suspect has reasonable grounds to suspect him to be guilty of an arrestable offence. The arresting officer is held accountable. That is the compromise between the values of individual liberty and public order.

 

Section 12(1) authorises an arrest without warrant only where the constable 'has reasonable grounds for' suspicion. An arrest is therefore not lawful if the arresting officer honestly but erroneously believes that he has reasonable grounds for arrest but there are unknown to him in fact in existence reasonable grounds for the necessary suspicion, e.g. because another officer has information pointing to the guilt of the suspect. It would be difficult without doing violence to the wording of the statute to read it in any other way."

 

[23] After considering certain observations made in textbooks, and having had regard to the terms of article 5(1)(c) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969) Lord Steyn continued as follows:

"Section 12(1) is undeniably a statutory provision in the first category [i.e. one that requires that the constable personally has reasonable grounds for the suspicion]. The rationale for the principle in such cases is that in framing such statutory provisions Parliament has proceeded on the longstanding constitutional theory of the independence and accountability of the individual constable ... This case must therefore be approached on the basis that under section 12(1) the only relevant matters are those present in the mind of the arresting officer.

 

Certain general propositions about the powers of constables under a section such as section 12(1) can now be summarised. (1) In order to have a reasonable suspicion the constable need not have evidence amounting to a prima facie case. Ex hypothesi one is considering a preliminary stage of the investigation and information from an informer or a tip-off from a member of the public may be enough: Hussien v. Chong Fook Kam [1970] AC 942, 949. (2) Hearsay information may therefore afford a constable reasonable grounds to arrest. Such information may come from other officers: Hussien's case, ibid. (3) The information which causes the constable to be suspicious of the individual must be in existence to the knowledge of the police officer at the time he makes the arrest. (4) The executive 'discretion' to arrest or not, as Lord Diplock described it in Mohammed-Holgate v. Duke [1984] A.C. 437, 446, vests in the constable, who is engaged on the decision to arrest or not, and not in his superior officers.

 

Given the independent responsibility and accountability of a constable under a provision such as section 12(1) of the Act of 1984 it seems to follow that the mere fact that an arresting officer has been instructed by a superior officer to effect the arrest is not capable of amounting to reasonable grounds for the necessary suspicion within the meaning of section 12(1). ... an order to arrest cannot without some further information being given to the constable be sufficient to afford the constable reasonable grounds for the necessary suspicion. That seems to me to be the legal position in respect of a provision such as section 12(1). ... In practice it follows that a constable must be given some basis for a request to arrest somebody under a provision such as section 12(1), e.g. a report from an informer."

 

[24] Lords Goff of Chieveley, Mustill and Hoffman each agreed with Lord Steyn, without elaboration. Lord Hope of Craighead gave his own reasoned judgment with which Lords Goff, Mustill and Hoffman also agreed. In the course of his speech, Lord Hope described the provisions of section 24(6) of the Police and Criminal Evidence Act 1984, which provides that, where a constable has reasonable grounds for suspecting that an arrestable offence has been committed, he may arrest without warrant anyone whom he has reasonable grounds for suspecting to be guilty of the offence, as "similar" to section 14(1) of the 1995 Act. (Page 297D) His lordship also described section 23(2)(a) of the 1971 Act as "similar legislation affecting the liberty of the person". His lordship continued:

"It is now commonplace for Parliament to enable powers which may interfere with the liberty of the person to be exercised without warrant where the person who exercises these powers has reasonable grounds for suspecting that the person against whom they are to be exercised has committed or is committing an offence. The protection of the subject lies in the nature of the test which has to be applied in order to determine whether the requirement that there be reasonable grounds for the suspicion is satisfied.

 

My Lords, the test which section 12(1) of the Act of 1984 has laid down is a simple but practical one. It relates entirely to what is in the mind of the arresting officer when the power is exercised. In part it is a subjective test, because he must have formed a genuine suspicion in his own mind that the person has been concerned in acts of terrorism. In part also it is an objective one, because there must also be reasonable grounds for the suspicion which he has formed. But the application of the objective test does not require the court to look beyond what was in the mind of the arresting officer. It is the grounds which were in his mind at the time which must be found to be reasonable grounds for the suspicion which he has formed. All that the objective test requires is that these grounds be examined objectively and that they be judged at the time when the power was exercised.

 

This means that the point does not depend on whether the arresting officer himself thought at that time that they were reasonable. The question is whether a reasonable man would be of that opinion, having regard to the information which was in the mind of the arresting officer. It is the arresting officer's own account of the information which he had which matters, not what was observed by or known to anyone else. The information acted on by the arresting officer need not be based on his own observations, as he is entitled to form a suspicion based on what he has been told. His reasonable suspicion may be based on information which has been given to him anonymously or it may be based on information, perhaps in the course of an emergency, which turns out later to be wrong. As it is the information which is in his mind alone which is relevant however, it is not necessary to go on to prove what was known to his informant or that any facts on which he based his suspicion were in fact true. The question whether it provided reasonable grounds for the suspicion depends on the source of his information and its context, seen in the light of the whole surrounding circumstances." (Page 297-298)

 

[25] Later in his speech, Lord Hope cited with approval the following passage in the judgment of Sir Frederick Lawton in Castorina v Chief Constable of Surrey, The Times, p 15 June 1988; Court of Appeal (Civil Division) Transcript No. 499 of 1988:

"Suspicion by itself, however, will not justify an arrest. There must be a factual basis for it of a kind which a court would adjudge to be reasonable. The facts may be within the arresting constable's own knowledge or have been reported to him. When there is an issue in a trial as to whether a constable had reasonable cause, his claim to have had knowledge or to have received reports on which he relied may be challenged. It is within this context that there may be an evidential issue as to what he believed to be the facts, but it will be for the court to adjudge what were the facts which made him suspect that the person he arrested was guilty of the offence which he was investigating."

 

That case concerned the application of section 2(4) of the Criminal Law Act 1967, now repealed, which provided that, "where a constable, with reasonable cause, suspects that an arrestable offence has been committed, he may arrest without warrant anyone whom he, with reasonable cause, suspects to be guilty of the offence."

[26] In Raissi, the second claimant was arrested and detained by a police officer, acting under the provisions of section 41(1) of the Terrorism Act 2000, on suspicion of involvement in the 2001 attack on the twin towers in New York. The second claimant sought damages for wrongful arrest and false imprisonment. The judge at first instance held that the arresting officer had acted in good faith and in compliance with instructions from senior officers, but that the basis on which the second claimant had been arrested was insufficient to amount to reasonable suspicion justifying arrest. It was argued on behalf of the arresting officer that he was entitled to infer that his superiors might have had additional information to justify the arrest, which had not been imparted to him. The judge at first instance rejected that argument and found for the second claimant. On appeal, the only issue before the court concerned the matter of reasonable cause. The appeal was dismissed on the ground that it was not sufficient for the arresting officer to infer that his superiors must have had reasonable grounds for suspicion before instructing him to arrest a suspect.

[27] In all of the authorities which I have considered above, there is a consistent theme: where it was held that information passed to a constable constituted or contributed to reasonable grounds for suspicion, what was communicated were matters of fact. The necessary suspicion was an inference which could be drawn from these facts. In Houston, the court considered "whether there (were) sufficient facts to constitute reasonable grounds". In Stark, the "various factors" which were "put together and taken in combination" were a mix of observation and information, but were all matters of fact. The facts need not be established to any prescribed standard, nor according to any evidential rules. As Lord Hope said in O'Hara, the information may turn out later to be wrong. (See paragraph [24] above) Consequently, a suspicion may quite properly arise from a hearsay report of information provided by an anonymous informant. In my judgment, however, someone else's suspicion, based on information which is not shared with the arresting or detaining officer, will not do. If one applies the approach proposed by Lord Hope, "the question whether (the information received by the constable) provided reasonable grounds for the suspicion depends on the source of his information and its context seen in the light of the whole surrounding circumstances", the difficulty which the crown faces in this case is that, so far as the evidence disclosed, the source of the Fife constables' information was unknown to them, as was its context. They had no knowledge of any of the surrounding circumstances. In my judgment, the message passed to Sergeant Fleming and Constable MacGregor informed them only that someone suspected that there may be a controlled drug in the Ford Transit. It gave them no information as to any factual basis for that suspicion. It was no more than the expression of a conclusion which they themselves might have reached, if they had been given sufficient factual information.

[28] During the hearing which took place on 24 April, I asked the advocate depute whether, on the assumption that Constable MacGregor had been the detaining officer, if he had been asked why the minuter had been detained, it would have been sufficient evidence of the existence of reasonable grounds if he had replied: "I believed that there may well have been a controlled drug within the vehicle". The advocate depute responded that, on that evidence, the court would be entitled to conclude that the constable had reasonable grounds to suspect that the minuter had in his possession a controlled drug. I disagree. Had that been the response, the natural and obvious follow up question would have been: "why do you say that?" That, in my judgment, illustrates the difference between the enunciation of the suspicion, and the identification of the grounds on which it was held. "There may well be a controlled drug within the vehicle" simply expresses the suspicion. It says nothing about what created the suspicion.

[29] Adopting the approach of Sir Frederick Lawton in Castorina, the Fife constables acted on no more than "suspicion by itself". They had no factual basis for that suspicion, because none had been reported to them.

 

Decision on the section 23(1) issue
[30] At the April 24 hearing, for the reasons given in this opinion, I held that the minuter's detention was unlawful and that the evidence of the finding of diazepam in the Ford Transit van is inadmissible. At the hearing which was held on 26 and 27 March, neither counsel had advanced submissions on what consequences should follow such a determination. At the same time as requesting that parties address me on O'Hara and Raissi, therefore, I had asked them to a make submissions on that issue when the matter came before me again. During the April hearing, Mr Brown advised me that, in light of discussions which he had had with the advocate depute before the previous hearing, he had understood that it was a matter of concession by the crown that, if the detention was unlawful, evidence of the interviews was inadmissible as was evidence of the seizure of label productions 10 to 31 inclusive, all of which, with the exception of label production 16, were recovered from either the minuter's home or his business premises. The advocate depute, who was not the same person as the advocate depute who appeared at the March hearing, advised me that he was unaware of the basis for Mr Brown's understanding. He accepted that, if the section 23 detention and search were unlawful, it followed that the section 14 detention was also unlawful. Beyond that, he said, he would wish to argue that the statements made at interview should be held admissible, on the view that there had been an excusable irregularity. At Mr Brown's request, I adjourned briefly to allow parties to discuss the matter.

[31] When the court reconvened, the advocate depute advised me that, in light of its concession that the section 14 detention was unlawful, the crown accepted that evidence of the first two interviews was inadmissible. The third interview, however, followed recoveries made at the minuter's home and business premises, and the interview was concerned with those recoveries. Mr Brown explained that, having considered the matter further during the adjournment, he recalled that Detective Constable Scarborough had given evidence about the obtaining of a warrant to search the minuter's home and business premises respectively and had said that Detective Constable Wotherspoon had been directed to attend to that. Mr Brown recalled, however, that no one had been asked in evidence about the information to which Detective Constable Wotherspoon had deponed when obtaining the warrants. In light of that discussion, I granted the minute challenging the lawfulness of the section 23 detention and search, to the extent of ruling that the detention and search carried out in terms of section 23 of the Misuse Of Drugs Act 1971 was unlawful, that the detention carried out in terms of section 14 of the Criminal Procedure (Scotland) Act 1995 was unlawful and that evidence of the first and second interviews of the minuter was inadmissible. Beyond that, I made no ruling.

[32] Having now reviewed the evidence, I am of opinion that evidence of the third interview should also be held inadmissible, and I now do so. As I have noted above, Detective Constable Scarborough testified that, having seized label 16, the contents of which "looked like it might be drugs", he and Detective Constables Wotherspoon and Mann returned to Dunfermline police station where Detective Constable Wotherspoon was tasked with obtaining warrants to search the minuter's home and business premises. When Detective Constable Wotherspoon gave evidence, it was clear that the warrants were obtained following and as a result of what was described as "the discovery of the vehicle", i.e. the Ford Transit van. As I have recorded earlier in this opinion, it is asserted in the relevant minute that it was as a result of the discovery of controlled drugs in the van that warrants were obtained "to search the loci specified in the charges on the indictment", and that it is "(b)elieved and averred that said search warrants were granted on the basis of the said unlawful search of the vehicle." It is clear from the transcript of the recording of the third interview that the search warrants were, indeed, granted on the basis of the discovery of label 16. In the early part of that interview, Detective Constable Cook said this:

"On that note Paul just to make you aware you may or may not be aware of this em as a result of you having been arrested initially in relation to the stuff that was found in your van em there was a search warrant em applied for ... And granted in relation to the, the garage site basically." (Crown production 22, page 9)

 

The terms of the search warrant were then read over to the minuter and it can be seen that Detective Constable Cook was reading what became crown production 4, the warrant authorising the search of the minuter's business premises at Jamphlars Road. Later during the interview, the minuter was shown the warrant authorising the search of 38 Woodlea Grove. It was introduced by Detective Constable Cook with the following words:

"... a search similar to the garage with a search team was carried out at your home address... similar to before as I say there was search warrant granted ... the wording of is it the same as the previous search warrant, ... the difference being this time obviously is it eh in relation to 38 Woodlea Grove, Glenrothes eh I appreciate you confirmed right at the start of the interview but can you confirm for me is that your home address?"

 

[33] I hold, therefore, that the searches conducted at 38 Woodlea Grove, Glenrothes and Jamphlars Road Garage, Cardenden, both specified in the indictment, were unlawful. Consequently, I hold that crown label productions 10 to 31, inclusive, were unlawfully obtained and that evidence of their recovery is inadmissible, as is evidence of the third interview.

[34] The problems for the crown that may result from my holding that the detention and search were unlawful were entirely avoidable. If Sergeant Fleming was not given any factual information which might have justified her suspicion that there may well be a controlled drug in the Ford Transit van, that could and should have been done. The question for determination would then have been whether or not such factual information constituted reasonable grounds to suspect that the minuter was in possession of a controlled drug. If she was given factual information, she could and should have been called to give evidence, in order that any grounds that she may have had were before the court.

 

Evidence relevant to the challenge to the fairness of the interviews
[35] My determination of the detention and search issue renders a decision on the challenge to the fairness of the interviews unnecessary. Having granted the advocate depute leave to appeal my decision, under the provisions of section 74 of the Criminal Procedure (Scotland) Act 1995, however, it is necessary for me to express my views on the fairness issue.

[36] When Detective Constable Scarborough gave evidence, he was asked about the procedure that was adopted prior to the minuter's first interview. In that context, he was asked to look at crown production 15, which is a form entitled "ACPOS Solicitor Access Recording Form (SARF)". He explained that the form was completed in respect of every suspect detained under section 14 of the 1995 Act, and that that was done in the case of the minuter. He testified that the form was read word for word. It is recorded in crown production 15 that, at 23:00 hours, the following text was read verbatim to the minuter:

"I am now going to tell you some rights you have as a suspect. Please listen carefully.

 

You have the right to have intimation sent to a solicitor (which is another word for a lawyer) that you have been detained at this police station. This means that we will tell a solicitor that you have been detained at this police station if you want us to. Do you understand?

 

You have the right for a private consultation with a solicitor before being questioned by the police. This means that you can speak with a solicitor without anyone else been present. Do you understand?

 

You also have the right to a private consultation with a solicitor during police questioning. Do you understand?

 

Any solicitor contacted will be independent of the police. Any advice they give you will be independent too. You can speak to the solicitor by phone and this can be arranged quickly and you can ask for a solicitor to attend here. Legal Aid will be made available to you if you wish."

 

(It is recorded in the SARF form that the minuter answered "Yes" to each of the three questions which were put to him.)

"I have told you about your rights to have a solicitor told about your detention at this police station and to have a private consultation with the solicitor before and during police questioning. I'm going to ask you some questions about your rights. It is important that you listen to these questions and give me answers to them. Even if you choose not to take up any of these rights just now you can change your mind at any time. If you say no to taking up any of these rights I will ask you to sign this form to confirm this. The decisions are about whether you want a solicitor told about your detention at this police station or if you want to speak to a solicitor are decisions for you to make. I cannot advise you whether you should take up these rights.

 

Do you wish me to intimate to a solicitor that you have been detained at this police station? "

 

(The form records that the minuter answered "no" to that question.)

According to its terms, the form directs that, if the answer to the last question is "no", the name of the officer reading over the form is to be recorded, as is the name of the corroborating officer, and the name of the suspect. The form is then to be signed by each of those persons, and the time recorded. Crown production 15 shows that the minuter's rights were read over by J Scarborough, corroborated by S Mann, and that the suspect was P B. It also records that each of these persons signed the form at 23:24 hours. Detective Constable Scarborough said in evidence that he then read out the question from the form which is in these terms: "Do you wish a private consultation with a solicitor before being questioned by the police?" and that the minuter replied" no". Once again, the form directs that, if the answer is "no", the names of the three persons involved are to be recorded, the form is to be signed by each and the time noted. Crown production 15 records that the names of the same three persons were recorded and that the form was signed at 23:25 hours.

[37] The minuter was interviewed for a second time, starting at 04:53 hours on 19 November 2011. Once again, Detective Constable Scarborough took the lead. He explained in evidence that the purpose of the second interview was to summarise with the minuter what was said during the first. The minuter was interviewed again on 20 November by Detective Constables Brian Cook and Jacqueline MacIntyre. A second SARF form, crown production 16, was completed and, on that occasion, the minuter answered "yes" to the question: "Do you wish me to intimate to a solicitor that you have attended/been arrested at this police station?" He nominated the solicitor to whom intimation was to be made, and he replied "yes" to the question: "Do you wish a private consultation with a solicitor before being questioned by the police?". That was timed on the form at 10:55 hours. At 11:45 hours, the minuter indicated that he had decided to waive his right to a private consultation with a solicitor, and that decision was recorded in the SARF form.

[38] When he came to give evidence, the minuter accepted that, before the first interview, he had told Detective Constable Scarborough that he did not want a solicitor and that Detective Constable Scarborough completed the first form in the manner that the officer had earlier spoken to. He testified that he had waived his right because, between being arrested (by which I took him to mean detained) and being interviewed, he was informed "something along the line of Friday night it was going to be a long drawn-out affair if I want to involve a solicitor and, at the end of the day, it wasn't really that big a deal and it could all be dealt with quite quickly, but involving solicitors ..." (at which point, the answer tailed off). "He never says they wouldn't involve a solicitor but it was put to me it was just going to drag things out." He deponed that Detective Constable Scarborough had said that to him as he was taken from the cells to the charge bar. When that account was earlier put to Detective Constable Scarborough in cross-examination, he denied it. From the clear and unequivocal way in which he gave his answer, and his general demeanour, I believed his denial. By contrast, the minuter qualified the accusation by saying that this all happened a long time ago and that he was speaking to the best of his recollection. By what he said, and the way that he said it, I gained the impression that he was attempting to keep his options open for cross‑examination. Further, as the advocate depute demonstrated, it is clear that the minuter told lies to the police during his interviews. During the first of these, which began at 00:25 hours on 19 November 2011, he was asked whether he had ever taken drugs. He answered: "I have in the past aye". Asked when was the last time that he had done so, he replied: "It would ae been years ago and that's the truth like that would ae been years ago. It dinnae interest me eh". (Crown production 18, page 30) During the third interview, which began at 11:45 hours on 20 November, after cocaine had been found in the house at 38 Woodlea Grove, he was asked: "do you use drugs?", and he replied: "I do cocaine aye". A little later in the interview, he said: "It's pretty regular like em may be about anywhere, anywhere between quarter and half an ounce of every day or every couple of days." During the first interview, the minuter was also asked whether drugs were to be found in his house or business premises and he said that they were not. When these premises were searched, controlled drugs were found in both places. It was clear to me that the minuter is a person who is prepared to lie when he considers that it is in his interests to do so. For all of the foregoing reasons, I reject his evidence that he waived his right to a solicitor because of something that Detective Constable Scarborough had said to him before the SARF form was completed.

[39] That was the only conflict between the evidence of the crown witnesses and that of the minuter, as to the circumstances surrounding the interviews. The remainder of the minuter's challenge to the fairness of the interviews rested on things that were said during the interviews themselves, both to him by the officers and by him to them. In essence, the proposition advanced on behalf of the minuter was that he waived his right to consult a solicitor only because he was concerned about his partner and he wished to have his interviews concluded as quickly as possible in the hope that that might speed his release and return to her. As he put it during his evidence in chief, when asked about the second accused:

"Again I recall it was used like a pressure tool if you like. They were aware Vicky didn't know where I was. They weren't going to inform her because I'd already asked them to do so. My feelings were that if I was just to get the interview over and done with was that big a deal, wasn't that big a deal and if, possibly being naïve, I could be released on police bail whatever and went home to my wife and family."

 

[40] He went on to say that there had been a conversation between him and Detective Constable Scarborough "along the lines of Vicky was not involved at this stage it is only you we are interested in but it was not their decision to make." He was then asked by Mr Brown, quite apart from what Detective Constable Scarborough had said to him, what in his mind was the reason why he waived his right to a solicitor. He replied that it was because he "wanted it over and done with." He was naïvely under the impression that if he "got dealt with quicker" he could get back to normal and go home to his wife and family. He was then asked if his wife formed any part of that equation and he responded "the whole part of it". He explained that his only concern throughout the whole weekend was his family. His wife was going to be worried and he did not want her involved.

[41] The minuter was asked why he asked for a solicitor on the Sunday, before the third interview, and he explained that he had been told that the second accused had been taken into custody, just before he was taken for that interview. He had asked for a specific solicitor and, after 50 minutes had elapsed, was told that his solicitor could not be contacted. He was offered the services of the duty solicitor, which he declined. Mr Brown asked the minuter why he had changed his mind about a solicitor, and he replied that there were a couple of reasons. The first was, because of the time that it was taking for his solicitor to get back to him, he doubted whether the police "were even trying really to get hold of them". The second reason was that he thought that the "duty solicitor was like police appointed. I didn't have any confidence in the person I was going to be meeting and I just wanted to get it over and done with."

[42] In his closing submissions, Mr Brown advanced the following argument:

"... the weight of the evidence and, in particular, the evidence of the contemporaneous recordings of the police investigation in the form of the video and transcript of the interviews, supports the minuter's position that his decision to waive his right to a solicitor was:-

 

1. Prompted by a desire to get the interview over with.

 

2. In order that he may exclude his wife from the enquiries as soon as possible.

 

3. And, in relation to the third interview, because he did not wish to wait for his solicitor to arrive.

 

If these were the motivations for the minuter waiving his right to a solicitor then, regardless of the police actions (even if it is accepted that no inducements were made as alleged), then it cannot be said that his waiver was unequivocal and voluntary."

 

[43] In support of these propositions Mr Brown referred me to McGowan v B 2012 SC (UKSC) 182. That case concerned an accused person who had been detained and cautioned on suspicion of house-breaking. He was searched and found to be in possession of a substance, which he said was cannabis. He was taken to a police station, where he was detained and advised that he was not obliged to answer any questions, and that he was entitled to legal assistance and to have intimation of his detention made to a solicitor. He requested intimation but, on being advised that he had the right to a private consultation with a solicitor before being questioned by the police, he said that did not wish such a consultation. He was then interviewed, and made incriminating statements in relation to the house‑breaking. He was cautioned and arrested in relation to that matter. The interview continued in relation to the substance which had been found in his possession and he was asked whether he wished to consult with a solicitor before continuing with the interview. He replied that he did not. The case came before the Supreme Court on the questions whether access to a solicitor should be automatic when someone has been detained in police custody and whether leading the evidence of the interview would be in breach of his right to a fair trial. At the court's request, the parties agreed an amended question, in the following terms:

"(i) whether it would necessarily be incompatible with article 6(1) and 6(3)(c) of the European Convention on Human Rights for the Lord Advocate to lead and rely upon evidence of answers given during a police interview of a suspect in police custody (whether voluntarily, as a detainee under section 14 of the Criminal Procedure (Scotland) Act 1995 [(cap 46)] or after arrest and prior to charge) who, before being interviewed by the police:

 

(a) had been informed by a police officer of his Salduz/article 6 rights of access to legal advice; and

 

(b) without having received advice from a lawyer, had stated that he did not wish to exercise such rights.

 

(ii) whether it would be compatible with the respondent's rights under articles 6(1) and 6(3)(c) of the ECHR for the Lord Advocate, at the trial of the respondent, to lead and rely upon evidence of answers given by the respondent during a police interview conducted with him between 10 and 11 July 2011 in circumstances where, prior to such interview taking place, the respondent was informed by a police officer of his Salduz/article 6 rights of access to legal advice and, without having received advice from a lawyer, indicated: . verbally to police officers prior to being interviewed; . in writing by signing a solicitor access recording form ('SARF'); and verbally at the start of the interview that he did not wish to exercise such rights."

 

[44] Lord Hamilton, with whom Lord Hope of Craighead agreed, identified the task for the court as being to identify as best it could the requirements which the Strasbourg court has set for the making of an effectual waiver of Convention rights. (See paragraphs [5] and [78]) In the course of his judgment, Lord Hope quoted the following passage from the speech of Lord Bingham of Cornhill in Millar v Dixon 2002 SC (PC) 30:

"In most litigious situations the expression 'waiver' is used to describe a voluntary, informed and unequivocal election by a party not to claim a right or raise an objection which it is open to that party to claim or raise. In the context of entitlement to a fair hearing by an independent and impartial tribunal, such is in my opinion the meaning to be given to the expression. That the waiver must be voluntary is shown by Deweer v Belgium, where the applicant's failure to insist on his right to a fair trial was held not to amount to a valid waiver because it was tainted by constraint (para 54, p 465). In Pfeifer and Plankl v Austria there was held to be no waiver where a layman had not been in a position to appreciate completely the implication of a question he had been asked (para 38, p 713). In any event, it cannot meaningfully be said that a party has voluntarily elected not to claim a right or raise an objection if he is unaware that it is open to him to make the claim or raise the objection." (Paragraph 31)

 

[45] Lord Hope described the words "voluntary, informed and unequivocal" as capturing the essence of what is needed for a waiver of any kind to be valid. His Lordship observed that, unless the person was in full possession of all the facts, an alleged waiver of the right to an independent and impartial tribunal must be rejected as not being unequivocal and that it could also be said to have been uninformed. (Paragraph 17) It is to be noticed that Lord Hope was there considering what his lordship had described as the "first group" of Strasbourg cases which concerned the express right to an independent and impartial tribunal. Of those, his lordship said this:

"[21] This first group of cases provides ample support for the proposition that, in order to be effective as a waiver of a Convention right, the acts from which the waiver is to be inferred must be voluntary, informed and unequivocal. But they do not go more deeply into the question as to what is needed for the waiver to be 'informed' in the context of an alleged waiver of a right such as that which is in issue in this case, where the person is first told what the right is and then says in terms that he does not want to exercise it. In Oberschlick and Jones the applicant did not have the information, and in Pfeifer and Plankl v Austria the question that was put to him about disqualification raised an issue of law whose implication he was not in a position fully to appreciate."

 

[46] The second group of cases considered by Lord Hope consists of those that the Grand Chamber relied on in Salduz v Turkey (2008) 49 EHRR 421, and the third consists of what Lord Hope described as a selection from an increasingly large number of decisions of the Strasbourg court on waiver, since the Grand Chamber's judgment on 27 November 2008 in Salduz v Turkey. Having considered the Strasbourg jurisprudence on each of the three groups, Lord Hope said this:

"Where the accused, having been informed of his rights, states that he does not want to exercise them, his express waiver of those rights will normally be held to be effective. The minimum guarantees are that he has been told of his right, that he understands what the right is and that it is being waived and that the waiver is made freely and voluntarily." (Paragraph 46)

 

[47] As Mr Brown acknowledges in this case, the minuter was informed of his right to consult a solicitor. In my view, his statement that he did not want to exercise that right was unequivocal. I have noted in paragraph [38] of this opinion that the minuter was told that his right to a private consultation with a solicitor meant that he could speak to a solicitor without anyone else been present. He was asked whether he understood, to which he replied "yes". It is clear to me, from the recording of the first interview, that he understood what the right was and that it was being waived. At page 2 of the transcript, crown production 18, Detective Constable Scarborough is recorded as having informed the minuter that he was not obliged to say anything in answer to any of the questions which he was about to be asked in relation to offences under the Misuse of Drugs Act 1971, but that anything he did say would be video recorded, audio recorded, may be noted and may be used in evidence. The minuter was asked if he understood that and made an unclear reply. Detective Constable Scarborough told the minuter that it was important that he understood. The minuter responded "aye, aye nae problem" and was then asked "what I've said to you there what does that mean to you?" and the minuter replied in these terms:

"It means that I can, I can just basically eh I can, I can keep myself quiet and then, but anything I do use (sic) can go up if it goes to court at a later date it can be used."

 

Shortly thereafter, Detective Constable Scarborough reminded the minuter that the SARF procedure had been carried out at the charge bar and asked if it was correct that the minuter had said that he did not want a solicitor. The minuter replied: "Aye it's no gonna be in anybody's benefit it'll just be, we'll just get straight to the point so ... I'm happy with that Aye". He was then reminded that if at any point during the interview he decided that he wanted to speak to a solicitor then he should stop the officers and ask to be given that opportunity. Throughout the interview, the minuter appeared calm and relaxed and demonstrated no anxiety or desire" to get the interview over with". Nor did the minuter give any indication that the waiver of his right to consult with a solicitor was in order that he might exclude his wife from the enquiries as soon as possible. Further, the minuter having been told that he could speak to a solicitor by phone and that this could be arranged quickly, I am unable to accept that his waiver of the right to do so before the first interview was not voluntary, not informed or not unequivocal.

[48] I reject Mr Brown's argument that, in relation to the third interview, the minuter expressly waived his right to a consultation with a solicitor because he did not wish to wait for his solicitor to arrive. The minuter knew that he could consult with the duty solicitor, and that such consultation could take place by telephone. His reason for not doing so, given in evidence, was that he did not believe that the duty solicitor was independent of the police. In my view, that position is untenable, given that he had been told, in terms, that "any solicitor contacted will be independent of the police."

[49] Had it been necessary for me to decide the fairness issue, it follows from what I have said in this opinion that I would have held that, on both occasions when the minuter waived his right to consult with a solicitor, such waiver was voluntary, informed and unequivocal.