First appellant: Collins, solicitor advocate; Capital Defence Lawyers, Edinburgh

Second appellant: M C MacKenzie; Drummond Miller LLP, Edinburgh

Respondent: Brodie QC AD; Crown Agent

27 September 2013

[1] The appellants were charged and convicted after trial in the sheriff court in Perth on an indictment which libelled that on 18 February 2012 on the A9 road between Stirling and Perth and at Lamberkine Drive in Perth they were both concerned in the supplying of a controlled drug, namely cocaine, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971 - "the 1971 Act". The convictions arose out of the finding of a quantity of cocaine in a package in the front passenger footwell of a car driven by the second appellant (Mr Ferns) in which the first appellant (Mr Coalter) was the passenger - seated in the front passenger seat- when the vehicle was stopped and searched by two police officers, namely a Police Constable Buchan and a Police Constable Winton, at Lamberkine Drive in Perth.

[2] The legitimacy of the actions of those police officers in stopping and searching the vehicle in Lamberkine Drive, and hence the admissibility of the evidence of the finding of the cocaine, was raised by both appellants as a preliminary matter by minutes under section 79 of the Criminal Procedure (Scotland) Act 1995. A hearing was arranged at which the sheriff heard evidence from the two police officers in question. Following that hearing the sheriff repelled the objection by the appellants to the admissibility of the evidence of the search and the finding of the cocaine in the car. He refused leave to appeal and consequently the case proceeded to trial.

[3] The ground of appeal which is common to both appeals challenges the soundness of the sheriff's decision to repel the appellants' respective objections to the admissibility of the evidence of the search of the car in Lamberkine Drive. The basis upon which it was contended by the Crown that the search was legitimate was the power conferred on a constable by section 23(2) of the 1971 Act. That provision is in these 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."

The particular area of contention is whether, at the time at which the police stopped and searched the car in Lamberkine Drive, the officers had "reasonable grounds to suspect" that the appellants were then in possession of a controlled drug.

[4] It is therefore necessary to consider the evidence adduced before the sheriff at the preliminary hearing. As already mentioned, the evidence tendered by the Crown consisted of the evidence of PC Buchan and PC Winton and the tenor of that evidence is set out by the sheriff in his first report.

[5] In summary, both officers were on traffic patrol on the A9 road between Dunblane and Perth when at approximately 2345 hrs on 17 February 2012 they came upon the car in which the appellants were travelling. It was thought to be exceeding the speed limit and for that reason alone the police signalled to it to stop. The driver (Mr Ferns) cooperated in stopping the car. He thereupon went with PC Winton into the police car in order that the police officer could carry out various checks. PC Buchan spoke briefly with the passenger (Mr Coalter) who remained in the car. The checks conducted by PC Winton from within the police car with Mr Ferns disclosed that he was not the registered keeper of the car but an explanation was provided which on its face appeared satisfactory. The checks conducted by PC Winton also revealed that the second appellant, Mr Ferns, had a previous conviction in 2004 in the High Court of Justiciary for contravening section 4(3)(b) of the 1971 Act. The officers resolved that nothing further was required and the appellants were allowed to continue on their journey.

[6] However, as the appellant's car drove off, the "police control" informed constable Buchan (presumably by radio or other wireless communication) that the vehicle which he and his colleague had stopped was believed to have been involved in the supply of drugs and that traffic units had been looking for it. Although, as he accepted in cross‑examination, Constable Buchan received no detail as to how old that information was - it had been in the form of a general alert to traffic units - his impression was that it was recent, in the sense of the last day or two. The basis of that impression is not recorded in the sheriff's report but we were given to understand by the appellants' representatives that it was because the controller gave it as her immediate recollection. This further information from the controller was related by Constable Buchan to Constable Winton and the officers thereupon resolved that the vehicle was worthy of a search. (We were informed by the appellant's representatives that the evidence was that the officers used the more colloquial expression "worth a pull".)

[7] The constables thereupon set off after the car in which the appellants were travelling and caught up with it in Lamberkine Drive in Perth where they signalled to it to stop. The car stopped and the second appellant got out of the car. In his evidence Constable Buchan described the second appellant as being slightly agitated and as remonstrating with the police. Constable Winton gave evidence that he had the impression that the second appellant left the vehicle quickly as if annoyed. The two police officers differed in what they drew by inference from that behaviour. Constable Buchan thought that the second appellant's reaction might reasonably be attributable to the simple fact of the police having stopped the car for a second time. Constable Winton however interpreted the second appellant's reaction as reinforcing the suspicions which he had already formed that there might be drugs in the car.

[8] The written arguments for the appellants make reference to a number of decisions of this court respecting the notion of reasonable grounds to suspect the commission of an offence. Those references were supplemented in oral argument by reference to the later decision of Lord Jones in H M Advocate v PB and VW [2013] HCJ 71; 2013 SCL 592 and also to the opinion of Lord Turnbull of 17 July 2013 in H M Advocate v McAughey and others. In the opinion which he delivered Lord Jones refers to inter alia the speech delivered by Lord Hope of Craighead in O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286, which we agree provides, in the first two paragraphs of the report of that speech on page 298, a useful statement of the principles involved. As Lord Hope had noted in the preceding passages of his speech, the provision in that case, namely section 12(1) of the Prevention of Terrorism (Temporary Provisions) Act 1984 employed the formula commonly found in many other statutory contexts, including section 23(2) of the 1971 Act, whereby a power of detention or search was conferred upon a police officer where he had "reasonable grounds for suspecting" the commission of a relevant offence. In those two paragraphs on page 298 Lord Hope said:

"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 had formed. All that objective test requires is that these grounds be examined objectively and that they be judged at the time when the power is 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 had 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."

The other members of the judicial committee agreed with what had been said by Lord Hope and Lord Steyn explained in greater detail the constitutional principles involved.

[9] We did not understand any party to this appeal to dispute that the principles so set out by Lord Hope were the appropriate ones to be applied. The issue was essentially the application of those principles to the particular facts of this case. Those representing the appellants urged an interpretation of those facts which, put shortly, sought to exclude from the equation information derived from Constable Winton's checks following the first occasion upon which the vehicle was stopped; to regard Constable Winton's interpretation of the second appellant's reaction when the car was stopped in Lamberkine Drive as being neutralised by Constable Buchan's view that it might have been a reasonable reaction to the driver's having been stopped for a second time; and to emphasise that (on that approach) the essential basis for the detention was the information conveyed to the police officers by police control. The advocate depute on the other hand contended, in summary, for an approach involving the step by step acquisition of knowledge by the police officers which ultimately provided them with grounds, which, objectively judged, were reasonable grounds for suspecting that the appellants might be in possession of a controlled drug.

[10] In considering these submissions we observe at the outset that this is not a case in which the officer effecting the detention and search was acting on the instruction of a superior officer, in which event the question might then arise as to what information, additional to the instruction, was held by the detaining officer. In the present case the decision to follow the appellants' vehicle and to stop it in Perth was a joint decision of the two constables, Buchan and Winton. It was not a response to a command given to them by a superior officer to detain the vehicle. In that respect, the circumstances of the present appeal are, in our view, distinguishable from the different factual circumstances obtaining in HM Advocate v PB and HM Advocate v McAughey and others. As respects the latter of those decisions we have taken into account the reasons delivered ex tempore by the court in sustaining the defence appeal in that case.

[11] What requires to be considered in the present appeal is the information known to constables Buchan and Winton when they resolved to detain the vehicle and search it and whether, viewed objectively, that knowledge could afford reasonable grounds for their suspecting that the occupants of the vehicle might be in possession of a controlled drug. As the advocate depute pointed out, the officers knew that the second appellant had a previous conviction for a contravention of section 4(3)(b) of the 1971 Act. They were also aware that neither of the appellants was the registered keeper of the vehicle. While neither of these facts taken individually or together might constitute sufficient grounds for the exercise of the power to detain and search they form a substratum of fact on to which is placed the additional information from "control" that the vehicle was suspected of having been involved in the supply of drugs and that it had been sought by the police by means of a general alert during what Constable Buchan inferred from the nature of his conversation with the person operating "control" as being in the last day or so.

[12] In these circumstances, while the case may be a relatively narrow one, we have come to the view that when the information from "control" is put together with what the officers had learned when checking details after the car had been stopped on the A9 the officers did have reasonable grounds upon which to exercise the power under section 23(2) of the 1971 Act. In addition, although open to differing interpretations, Constable Winton regarded the demeanour of the second appellant as heightening his suspicion and in our view he was entitled to take that into account as an additional factor when proceeding to search the car.

[13] In these circumstances we consider that the common ground of appeal relating to the validity of the search is unsound.

[14] The first appellant, Mr Coalter, advances a further ground of appeal submitting that the sheriff erred in directing the jury that when assessing the credibility of a witness the jury might consider whether the witness had a motive for not telling the truth. The passage which is criticised reads:

"Another factor might be the motive for a witness giving the evidence he or she did. Did the witness have anything to gain by not telling the truth? You might think, ladies and gentlemen, that the witness would be unlikely to tell lies unless there was a good reason for doing so. If so is there any reason for the witness to be untruthful?"

[15] The submission advanced on behalf of the first appellant was to the effect that, in the particular circumstances of this case, that passage constituted a misdirection in the sheriff's charge to the jury. Both of the appellants gave evidence in their defence. All the other witnesses in the case were police officers. Since it might be thought that police officers would be unlikely to have a motive to be untruthful the implication of the sheriff's direction was that the first appellant's evidence fell to be placed under greater scrutiny as being evidence from someone with the obvious motive of wishing to escape conviction. Further the direction might be construed as an indication that a witness was to be assumed to be credible unless there were a motive for the witness to be untruthful.

[16] It is to be noted that the four sentences of the sheriff's charge of which complaint is made occur in a much longer passage dealing in wholly general terms with the reliability and credibility of witnesses. The sheriff directed the jury that all witnesses must be treated in the same manner, whether they are police officers or the accused. The sheriff then proceeds to mention a number of factors which a jury might wish to consider in assessing the credibility and reliability. He mentions, among other things, whether the witness appeared comfortable or was evasive; the need for a jury to make allowance for witnesses who might feel nervous or overawed by giving evidence in court; the general demeanour of the witness; the consistency of the evidence given by a witness; the consistency of that evidence with the jury's experience of life; the consistency of the evidence with other evidence in the case; and the difficulty of remembering things perfectly. The sheriff goes on to make plain that these are only examples, which may be of assistance to a jury.

[17] In these circumstances we consider that the jury would well appreciate that the reference to motive was part of a list of possible factors and would not regard it as having the special implication for which Mr Collins contended. In these circumstances we are not persuaded that there was any misdirection of the jury resulting in any miscarriage of justice.

[18] For these reasons we have come to the view that neither the common ground of appeal respecting the detention and search nor the misdirection ground advanced on behalf of the first appellant is well founded. Accordingly, the appeals are refused.