Appellant: J McDonald; Drummond Miller (for Logans, Cumnock, Ayrshire)

Respondent: A Brown QC AD: the Crown Agent

12 February 2014

[1] The appellant is charged with concern in the supply, or the possession in the alternative, of heroin, contrary to sections 4(3)(b) or 5(2) of the Misuse of Drugs Act 1971, at Friar's Vennel, Dumfries on 8 August 2013. This appeal concerns the legitimacy of the search of the appellant, which was carried out in the Vennel and subsequently at the local police station.

[2] At the material time, there was an extant warrant dated 9 July to search the appellant's house, based upon a suspicion that the appellant had been dealing in drugs from the vicinity of his home. Apart from the evidence of the existence of that warrant, it was demonstrated to the sheriff that, on the morning of 8 August, a police officer had observed the appellant on a bus in the Whitesands, Dumfries. This officer was aware of the existence of the warrant. She checked the police intelligence database which revealed B grade intelligence dated 5 August, and grade E intelligence dated 7 August, to the effect that the appellant had been dealing in drugs from his house in the afternoons between 2.00pm and 9.00pm. The intelligence was that he had travelled by bus to source his heroin; the particular location of his supplier being somewhere in Ayrshire.

[3] The officer returned to the police station. A briefing was carried out by the local sergeant at which the intelligence, already mentioned, was shared with other officers. Two of these officers were tasked to return to Whitesands with a view to detaining the appellant under section 23 of the Misuse of Drugs Act 1971. That is what happened. The police found the appellant at about 1.15pm in the vicinity of Friar's Vennel and there detained him. After a cursory search, they took him to the police station for a full body search and certain drugs were said to have been found located between his buttocks.

[4] Having heard the evidence, the sheriff repelled what was an objection to the evidence of the recovery of the drugs, based on the absence of reasonable grounds of suspicion at the material time that the appellant was in possession of controlled drugs.

[5] The Note of Appeal contained the following ground:

"there was insufficient evidence that this officer, from his own knowledge, had reasonable grounds for the suspicion which was formed and accordingly the sheriff misdirected himself in rejecting the submission that the search was unlawful."

In the submission advanced to this court, the ground of appeal, which appears restricted to the question of whether the suspicion was based upon reasonable grounds, was expanded into a contention that the genuineness of the suspicion itself came under challenge. It was submitted, under reference to Knaup v HM Advocate 2002 SCCR 879 (Lord Kirkwood at para 12) and McAughey v HM Advocate [2013] HCJAC 163, that what was required was information that the suspect was in possession of a controlled drug at the material time and not that he had been in possession in the past or would be in the future. It was accepted that reasonable grounds may be contained in a hearsay report, but someone else's suspicion was not sufficient, if not shared with the detaining officer. The test under section 23 was partly subjective, and partly objective, in the sense that there must be a genuine suspicion and that suspicion must be based on reasonable grounds.

[6] Ultimately, the submission focused on the proposition that there had been nothing remarkable about the appellant's conduct at the time when he was detained in Friar's Vennel. All that the police had been aware of was that, at some point in the past, the appellant may have been in possession of, or dealing in, controlled drugs, but not that he was then in possession of them. There was particular attention, as there had been before the sheriff, upon the absence of any evidence about where the bus, which the appellant had been on, had been going to.

[7] The sheriff found, as a matter of fact, that the detaining officer did have a suspicion that the appellant was in possession of controlled drugs and that he had reasonable grounds for so suspecting. The sheriff heard the evidence and reached a conclusion, which he was entitled to do, based upon the particular facts and circumstances presented to him in the evidence. The court is unable to fault the sheriff's approach in that regard. There was background intelligence that the appellant had been dealing in drugs from his home and on the timing of these deals. There was in existence an actual warrant to search his house relating to that dealing; that being a judicial determination of the existence of reasonable grounds to suspect possession at least at that location. The appellant was found in circumstances in which it was reasonable to infer that he had recently been on a bus journey and had just returned to Dumfries. The police were entitled reasonably to suspect that he may have been in possession of controlled drugs, having gone by bus to source them in advance of his afternoon's pursuit of dealing. Each case, of course, must depend upon its particular facts and circumstances, but here they were sufficient to justify the sheriff's conclusion of fact and the appeal must be refused.