APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Menzies Lady Dorian Lord Glennie	[2013] HCJAC 163 XC437/13   OPINION OF THE COURT   delivered by LORD GLENNIE   in   SECTION 74 APPEAL   by   CHARLES McAUGHEY   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _____________

 

Appellant: P Brown, Advocate; John Pryde

Respondent: A Prentice, QC; Crown Agent

 

13 August 2013

[1] The appellant is charged on an indictment along with six others with an offence under section 327(1)(d) and (e) of the Proceeds of Crime Act 2002. The relevant charge on the indictment, which is the only charge in which the appellant is named, is in the following terms:

 

"(007) on 8 November 2010 and 9 November 2010, both dates inclusive, at Shell Petrol Station, 61 Edinburgh Road, Glasgow, Kirimar Transport, Grays Road, Uddingston, Edinburgh Road, Newhouse, M74 motorway near to Junction 18 Lockerbie and elsewhere, meantime to the Prosecutor unknown, you [name] and CHARLES GRAY MCAUGHEY, did whilst acting together conceal, transfer, and attempt to remove from Scotland criminal property within the meaning of the aforementioned Act namely a sum of money amounting in cumulo to £215,800 or thereby, in that you [name] did direct CHARLES GRAY MCAUGHEY to effect the transfer and removal of said sums of money and did supply CHARLES GRAY MCAUGHEY with said sum of money, and with a mobile telephone to use to effect the transfer and removal of said sum of money and you CHARLES GRAY MCAUGHEY did on 9 November 2010 conceal said sum of money in a compartment in motor vehicle registration number J666 PHH and drive said vehicle from Grays Road, Uddingston to the M74 motorway in the direction of England and did attempted to remove said money from Scotland: CONTRARY to the Proceeds of Crime Act 2002, section 327(1)(d) and (e);"

 

[2] By minute the appellant raised a preliminary issue objecting to the admissibility of the results of a search of the vehicle driven by him on 9 November 2010. He contended that the officers who detained him and searched the vehicle, whilst purporting to act in terms of section 23 of the Misuse of Drugs Act 1971, did not have reasonable grounds to suspect that he was in possession of a controlled drug; and that accordingly both his detention and the subsequent search were unlawful.

[3] Having heard evidence and submissions on the minute, the judge issued an Opinion in which, having set out the facts as found by him and the parties' submissions, he concluded that he was satisfied that the detention and search of the accused on that day was lawful. He accordingly held that the objection to the admissibility of the items recovered as a consequence of that search should be repelled.

[4] The appellant appeals to this court against that decision under section 74 of the Criminal Procedure (Scotland) Act 1995.

[5] The relevant facts are set out fully at paragraphs [3] and [4] of the Judge's Opinion. He found that the evidence disclosed the following:

 

"[3] ... On the morning of 9 November 2010 Detective Sergeant John Crone was one of a number of officers of the Scottish Crime and Drug Enforcement Agency who attended a briefing in connection with an on-going operation. At that briefing he was given information to the effect that a number of individuals were thought to be involved in transferring money and drugs to England. As part of this operation he and others were tasked with undertaking surveillance on the accused Charles McAughey. Directed surveillance took place at the premises of Kirimar Plant in Bellshill where the accused was seen to transfer a holdall from the office premises into a vehicle and to drive away. He was later observed to return and to place the holdall into a different vehicle in which he then drove away again. It was suspected that he was transporting controlled drugs or money to England. Detective Sergeant Crone was then responsible for communicating the available intelligence and the import of his own observations to an officer at the control room of Dumfries and Galloway Police, with the intention of arranging that the vehicle driven by the accused be stopped by uniformed traffic patrol officers on the M74. He subsequently received a telephone call back from a traffic patrol sergeant to whom he passed on the information which he had been provided with at the earlier briefing, along with an account of the surveillance operation which had taken place that day.

 

[4] The task of stopping the accused's vehicle and detaining him for the purpose of a search was delegated to Police Constables Kingstree and Thomson, both of whom commenced duty at 3pm on 9 November. On arrival at Lockerbie Police Station Constable Thomson was told by his dayshift supervising officer that information had been received from the Scottish Crime and Drug Enforcement Agency about a vehicle which was thought to be carrying drugs and money which was heading south in their direction and which Dumfries and Galloway officers had been asked to stop on behalf of the Scottish Crime and Drug Enforcement Agency. He and his colleague were informed that the vehicle would bear the name of Kirimar Heavy Haulage and the markings of a wide load escort vehicle. They were also given the registration number of the vehicle, J666 PHH. Within around 10 minutes of commencing duty the officers had taken up position in a marked police car at a junction on the M74 from where they observed the vehicle driving south. The officers joined the motorway and signalled for the accused to pull over to the hard shoulder. Having done so he was informed by Constable Thompson that he was being detained under section 23 of the Misuse of Drugs Act 1971, as he had information that he was believed to be carrying a quantity of drugs and money."

 

[5] Section 23(2) of the Misuse of Drugs Act 1971 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 a search which appears to the constable to be evidence of an offence under this Act."

 

[6] In coming to the conclusion that the detention and search of the accused was lawful, the judge accepted that, for the exercise of the statutory power to be lawful, the constable who purports to exercise it must himself have "reasonable grounds to suspect". The mere fact that a detaining officer has been instructed by a superior officer to effect the detention is insufficient. The constable must be given some basis for a request to detain someone. However, hearsay information, which might come from other officers or even be provided anonymously, might provide such a basis. The question of whether the particular information given to a detaining officer in fact provides reasonable grounds, objectively judged, for the suspicion which he entertains may depend on the source of this information and its context as seen in the light of the whole surrounding circumstances.

[7] The judge went on to say this, in paragraphs [9] and [10]:

 

"[9] In the present case Police Constable Thomson was told by his dayshift supervising officer, before he left Lockerbie Police Station, that information had been received from the Scottish Crime and Drug Enforcement Agency about a vehicle which was thought to be carrying drugs and money and was heading south in their direction. He was told that detention was to be affected on their behalf. In my judgement this is sufficient to distinguish the present case from the evidential position in the case before Lord Jones. The source of the information concerning the vehicle to be stopped was made plain to the detaining officer, namely that it came from the Scottish Crime and Drug Enforcement Agency. The fact that the vehicle was travelling south in the direction of Lockerbie and that the Scottish Crime and Drug Enforcement Agency officers wished to vehicle to be stopped on their behalf was sufficient to provide a context, namely that there was an on-going operation in which they had an interest.

 

[10] In the circumstances as were disclosed in the evidence before me I was therefore satisfied that the detaining officer did have sufficient information available to him to form his own reasonably held suspicion that there would be drugs found in possession of the driver of the vehicle which had been described to him. I do not consider that it would have been necessary for information to be passed on to the detaining officer concerning the content of the briefing which had been held earlier that day. Nor do I consider that it would have been necessary for the officer to have been told about the outcome of the surveillance operation in which the accused had been under observation."

 

[8] In paragraph [12], the judge explained the functions of the Scottish Crime and Drug Enforcement Agency, in particular its function of preventing and detecting serious organised crime. He pointed out that it frequently carried out large-scale enquiries concerning drug trafficking and that many of its investigations proceeded upon intelligence received and authorised covert surveillance. Those aspects of its function would be well-known, he said, to any experienced police officer. He went on to say this:

 

"In my opinion it would be sufficient for a road traffic officer, such as Constable Thomson, to be told that he was being asked to assist in the operation being carried out by the Scottish Crime and Drug Enforcement Agency and to detain the driver of a particular vehicle upon the basis that members of that agency thought that drugs or money were being transported. That information of itself would, in my opinion, be enough to provide the detaining officer with sufficient information upon which he would be entitled to suspect on reasonable grounds that the driver of the vehicle was in possession of a controlled drug. That is not the same as a superior officer simply instructing a junior colleague to detain without explanation, as occurred in Houston v Carnegie 2000 SLT 333, or as was considered in O'Hara. It seems to me that Constable Thompson was not simply exercising a power of detention because he was told to do so by a superior officer. He was told why he was being requested to do so and in what context."

 

[9] The judge prepared a Report on the content of the Note of Appeal. He added this to the explanation given in his Opinion:

 

"I treated Police Constable Thompson as the detaining officer. It was he who purported to exercise the power of detention by speaking to the appellant and informing him that he was being detained under section 23 of the Misuse of Drugs Act 1971. It was he who explained the reason for that detention to the appellant. A portion of this witness's evidence appears [in the Note of Appeal] in quotation marks, as if it reflects the exact words used. I am not aware of a transcript of the evidence having been prepared and according to my note the passage in quotes is incomplete. It omits what I considered to be quite an important part of the explanation given by this officer. He concluded the passage of evidence referred to by saying that he had been asked to stop the vehicle "on their behalf", referring to the SCDEA. This was an important element in the package of information given to the detaining officer as it enabled him to understand that the SCDEA had an on-going operation concerning the vehicle in question and that he was being asked to assist in that operation."

 

[10] We were referred to a number of authorities pertaining to section 23 of the Misuse of Drugs Act 1971 and similar provisions in other legislation, including O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286, Houston v Carnegie 2000 SLT 333, Raissi and another v Commissioner of Police of the Metropolis [2009] QB 564 and HMA v PB and VW [2013] HCJ 71 (Lord Jones).

[11] We detect no difference between the parties as to the law to be applied. The advocate depute made that clear in his submissions. So too did counsel for the appellant. In those circumstances it is convenient to take a summary of the law from the written submissions lodged in this appeal by the advocate depute.

[12] It is clear that the test relates to what is in the mind of the arresting officer when the power is exercised. The test is in part subjective, in that the arresting officer must have formed a genuine suspicion in his own mind that the person is in possession of a controlled drug. The fact that someone else, however eminent or worthy of credit, has such a suspicion, is not good enough. In that context we refer to Raissi v Commissioner of Police of the Metropolis at page 577H, where the Master of the Rolls says this:

 

"The proposition that it is sufficient for the arresting officer to infer that his superiors must have had reasonable grounds for suspicion before instructing him to arrest the suspect is inconsistent with the reasoning in the O'Hara case."

 

The same point is made in the judgment of Carswell J as he then was in Hanna v Chief Constable Royal Ulster Constabulary [1986] NI 103 at 108 where he says this about a similar provision in the Prevention of Terrorism (Temporary Provisions) Act 1984:

 

"In my view the wording of section 12(1) is intended to refer only to the arrestor himself and it is his suspicion alone which is material and not that of any person by who he was given instructions."

 

This passage was cited with approval by Lord Hope in O'Hara at page 299D-F.

[13] We observe at this point that the judge has made no finding either in his Opinion or in his Report that the arresting officer did in fact form any suspicion, still less on what that suspicion, if he had formed one, was based. We do not however think it would be right to decide this appeal on that narrow basis.

[14] The other part of the test is objective, in that the officer must have reasonable grounds for the suspicion which he has formed. That does not require the court to look beyond the mind of the arresting officer and assess the accuracy of the information on which he has relied. It must look to the information in his mind at that time, on the basis of which he formed his suspicion. The test requires that the grounds on which he has formed a suspicion are examined objectively. The reasonableness of the grounds for his suspicion is to be judged at the time the power was exercised. We note and emphasise that what is required is information on which the arresting officer can rely. This point is made clear by Lord Hope in O'Hara at page 302A-B:

 

"The statutory power does not require that the constable who exercises the power must be in possession of all the information which has led to a decision, perhaps taken by others, that the time has come for it to be exercised. What it does require is that the constable who exercises the power must first have equipped himself with sufficient information so that he has reasonable cause to suspect before the power is exercised."

 

The point was made in different language but equally succinctly by Lord Jones in HMA v PB and VW at paragraph 27 where he said:

 

"Someone else's suspicion based on information which is not shared with the arresting or detaining officer will not do."

 

[15] It seems to us that the judge too adopted this approach. In paragraph [8] of his Opinion he makes it clear that an instruction from a superior officer to effect a detention is insufficient. The constable must be given some basis for a request to detain someone under a provision such as this. We would simply add that a suspicion conveyed by a superior officer must stand or fall in the same way as an instruction by such an officer. It is not enough that the detaining officer is simply told that his superior officer has a suspicion, or even that he has a reasonable suspicion. This is, after all, implicit in the giving of an instruction to effect a detention.

[16] Against that background, we have turned to consider what information was given here. In paragraph [4] of his Opinion the judge describes that in this way. He says:

 

"On arrival at Lockerbie Police Station Constable Thomson was told by his day shift supervising officer that information had been received from the Scottish Crime and Drug Enforcement Agency about a vehicle which was thought to be carrying drugs and money which was heading south in their direction and which Dumfries and Galloway officers had been asked to stop on behalf of the Scottish Crime and Drug Enforcement Agency."

 

He then goes on to say that Police Constable Thomson and his colleague were told about the markings on the vehicle, its registration number and so on. The important point there is that they were told that information had been received from the Scottish Crime and Drug Enforcement Agency "about a vehicle which was thought to be carrying drugs and money". No information was apparently given to Police Constable Thomson about the factual material on the basis of which that suspicion had been formed. It clearly conveyed to Police Constable Thomson that a suspicion was held by the Scottish Crime and Drug Enforcement Agency that a vehicle was carrying drugs and money, but we emphasise that Police Constable Thomson was only told of their suspicion that the vehicle was carrying drugs and money - he was not given any factual material on the basis of which he himself could have been suspicious or could have formed any reasonable grounds for any suspicion of his own.

[17] On that basis, it seems to us, applying the uncontroversial statements of law referred to above that, although Police Constable Thomson was given reason to know that the Scottish Crime and Drug Enforcement Agency suspected that the vehicle was carrying drugs and money, he was given no factual information on which he could form his own view. That fact that it was the Scottish Crime and Drug Enforcement Agency which was suspicious, rather than some other source, does not seem to us to advance matters at all - it simply goes to the reputation of the source of suspicion but does not add to the factual information upon which Police Constable Thomson could act.

[18] For those reasons we consider that there was an insufficient basis for any suspicion formed by the arresting officer in this case and, on that basis, we shall allow the appeal.