APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord EassieLady PatonLady Smith
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Appeal No: XC556/12 & XC558/12
OPINION OF THE COURT
delivered by LORD EASSIE
in
(FIRST) ADRIAN ROBERT COALTER
Appellant;
and
(SECOND) WILLIAM JAMES FERNS
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
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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.