British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> LOGAN, APPEAL AGAINST CONVICTION BY VERONICA LOGAN AGAINST HER MAJESTY'S ADVOCATE [2020] ScotHC HCJAC_10 (18 March 2020)
URL: http://www.bailii.org/scot/cases/ScotHC/2020/2020_HCJAC_10.html
Cite as: [2020] ScotHC HCJAC_10, 2020 JC 198, 2020 SCCR 203, [2020] HCJAC 10, 2020 GWD 12-173
[New search] [Printable PDF version] [Help]
Page 1 ⇓
Lord Menzies
Lord Malcolm
Lord Turnbull
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2020] HCJAC 10
HCA/2019/000607/XC
OPINION OF THE COURT
delivered by LORD TURNBULL
in
APPEAL AGAINST CONVICTION
by
VERONICA LOGAN
against
HER MAJESTY’S ADVOCATE
Appellant: Collins (sol adv); Collins & Co
Respondent: Farquharson QC, AD; Crown Agent
Appellant
Respondent
18 March 2020
Introduction
[1] On 23 September 2019 the appellant was convicted in the Sheriff Court at Falkirk on
three charges of being concerned in the supplying of the controlled drugs Etizolam,
Diamorphine and Amphetamine.
Page 2 ⇓
2
[2] The evidence led against the appellant comprised the recovery of quantities of these
drugs with a minimum value of around £32,000 at her flat at 22 Douglas Street Bannockburn
on 4 February 2019. Prior to her trial the appellant intimated her intention to raise a
preliminary issue under section 71(2) of the Criminal Procedure (Scotland) Act 1995
objecting to the admissibility of this evidence. In order to determine that objection the
sheriff heard evidence on 2 August 2019 from 4 police officers and the appellant. Certain
matters were also agreed by joint minute. The sheriff refused the minute and refused the
appellant’s motion for leave to appeal.
[3] At the trial the only evidence led was in the form of a joint minute of agreement
which set out inter alia that the various controlled drugs were recovered from the appellant’s
property in the course of a search carried out under warrant on 4 February 2019 in her
presence. The joint minute having been read, the sheriff directed the jury that they were
required to find the accused guilty, which they duly did.
[4] In this appeal the appellant seeks to challenge the decision of the sheriff in refusing
her preliminary issue minute.
The circumstances of the police visit
[5] Having heard the evidence in relation to the preliminary minute, the sheriff set out
the findings which he made in the report which he prepared for this court. There is no
challenge in the note of appeal to the facts as the sheriff found them to be.
[6] On 27 January 2019, an anonymous call was made by a male caller to police Scotland.
The terms of that telephone call were agreed to have been accurately recorded in
production 17, a certified copy redacted call card. The relevant portions of that document
were in the following terms:
Page 3 ⇓
3
“Caller reporting he has been called yesterday by female named Veronica 20 or
22 Douglas Street, Bannockburn asking for his help. She states she has been forced to
house £250K worth of street valium in her house. States that males have forced her
to do this. Caller states the caller is drug user herself. She states they have been
doing this for the past week. Unsure if males are in the house with her. She asked
caller not tell anyone because she is scared and worried males will cut off her drug
supply also. Caller does not really know her that well, he was just friends with her
son and daughter, 1 male was from Glasgow another from Liverpool and they show
up in an Audi at her address, they have a back door key. Stated to caller they were
coming back Sunday to collect the money. Caller asked if they were armed, stated 1
male had a knife nothing more stated.”
[7] Police enquiry led to the conclusion that the appellant was likely to be the subject of
the telephone call. Attempts by officers to test the veracity of the information conveyed by
the anonymous caller were unsuccessful and senior officers concluded that the source of
information was insufficiently reliable to request the procurator fiscal to seek a search
warrant.
[8] In these circumstances two uniformed officers came to be tasked to visit the accused
to enquire after her welfare and if she was being coerced into criminality against her will.
The evidence accepted by the sheriff was that after the two police officers were invited to
join the appellant in her bedroom they spoke to her and the following exchange took place:
PC Patterson: “Veronica we are here to check on your welfare as we have
received information that you may be being coerced into
holding drugs against your will.”
PC Smith: “Are you being coerced into storing drugs?”
Appellant: “That’s not the case”
PC Smith:
“We are not here to get you into trouble, are you being coerced
into doing anything, will you be honest with us so we can help
you?”
Appellant: No answer
PC Smith:
(After noticing that the appellant was becoming upset, a little
bit teary and nervy)
Page 4 ⇓
4
“I’m getting the impression you want to tell us something, are
you being coerced into storing drugs?”
[9] At this stage the appellant said she had two bags while pulling the cover off two
bags on the floor and lifting them up onto the bed. The officers could see that they
contained white tablets. At that point the appellant was cautioned, said nothing
incriminating, was arrested and taken to Falkirk Police Station. Thereafter the officers
obtained a search warrant and the formal recovery of the items took place.
Submissions
[10] On behalf of the appellant it was submitted that the evidence as to the comments
made by the appellant and the evidence recovered as a result of what she said was
inadmissible and the sheriff erred in refusing to uphold the preliminary issue minute. It was
submitted that the evidence which the sheriff accepted made it plain that the appellant was
suspected of being involved in criminal activity by the police prior to their arrival at her
home. She ought to have been cautioned before being questioned at all. It was also plain
that they did not accept her initial response to their questioning and probed her further. The
questions which the police officers asked made it clear that they did not believe the
appellant’s denial. They believed that she was storing drugs and anticipated that she would
make a statement to that effect. These circumstances underlined the importance of
cautioning the appellant prior to further questioning. Furthermore, it was submitted that
the officers deliberately misled the appellant as to the purpose of their questions. They
contended that they were there to help her and not to get her into trouble. The reality was
that when she confirmed their suspicions she was immediately arrested. In the whole
Page 5 ⇓
5
circumstances the evidence ought not to have been admitted as it was obtained in
circumstances which were unfair to the appellant.
[11] The advocate depute submitted that the sheriff’s findings made it clear there was no
unfairness to the appellant in admitting the evidence. The appellant was not under
suspicion. That was plain from the fact that it was two uniformed officers who attended at
her house rather than officers from the CID or the drug squad. Since she was not under
suspicion, the question of unfairness did not arise. The officers had a duty in terms of
section 20 of the Police and Fire Reform (Scotland) Act 2012 to protect life and property.
Their attendance at the appellant’s home arose from a concern for her welfare rather than a
suspicion that she was committing a criminal offence.
Discussion
[12] It is of course a matter for the investigating officers and their senior colleagues to
decide, in any given circumstance, whether or not they are in possession of sufficient
information to request the granting of a warrant. That is not the issue which arises in this
particular case. It is, however, common enough for powers of detention and search to be
exercised on the basis of suspicion emanating from an informer or a tipoff from a member of
upon by Lords Steyn, Goff of Chievely, Mustill and Hoffmann in O’Hara v Chief Constable of
the Royal Ulster Constabulary [1996] UKHL 6).
[13] The evidence which was accepted by the sheriff in the present case included
evidence of an email exchange between senior officers in the aftermath of the anonymous
call in which the arrangements for the visit to the appellant’s property were discussed. The
Page 6 ⇓
6
exchange included the explanation that the visit was: “… in order to test the Intel” and “For
welfare and information gathering regarding any potential county lines issues”.
The email exchange also included the statement that: “we cannot test this Intel without a
welfare visit now been completed”.
[14] At the invitation of the Crown, the sheriff approached the issue before him by
seeking to identify the stage which the police investigation had reached. He concluded that
the nature and source of the intelligence was insufficient to provide reasonable suspicion on
the part of the officers that the accused was in possession of controlled drugs and that the
investigation was still within the preliminary stage. He concluded that at such a stage the
officers were entitled to ask anyone any questions. He concluded that it was only once
suspicion had crystallised upon the appellant that a caution was necessary. He appears not
to have placed any weight on the actual questions which the officers asked the appellant.
[15] The same approach was advanced by the advocate depute in supporting the decision
arrived at. The core of the Crown’s argument was that the appellant was not a suspect. The
advocate depute accepted that if the evidence was wrongly admitted there was no other
evidence available against the appellant.
[16] In Gilroy v HM Advocate 2013 JC at paragraph [55] the Lord Justice-Clerk (Carloway)
in giving the opinion of the court explained that:
“Although the overarching test in relation to the admissibility of statements by
accused persons is one of `fairness`, it is well recognised that this normally requires
that a person in the category of a `suspect` must be cautioned before being
questioned by the police about the offence of which he is suspected.”
[17] In discussing how to identify whether an individual properly fell to be characterised
as a suspect, the Lord Justice-Clerk referred, at paragraph [58], to the opinion of
Lord Wheatley in Miln v Cullen 1967 JC 21. He noted that whilst Lord Wheatley may have
Page 7 ⇓
7
viewed the issue of whether a person was a suspect as being a subjective one, which
depended upon the attitude of the police at the time, he did qualify that by stating that the
police attitude may require to be justified by reference to the facts in their possession.
Having made this observation the Lord Justice-Clerk stated:
“Thus, what is of particular importance is whether the police are acting in good faith
when questioning a person whom they say was properly categorised as a witness
rather than a suspect.”
[18] As can be seen from the quote taken from the opinion of the court in Gilroy, the issue
of whether or not a caution is important tends to be debated in the context of determining
whether an individual interviewed by the police fell to be viewed as a witness or as a
suspect. In the present case none of the police officers seem to have characterised the
appellant as a witness. There were two components to their interest in speaking to her.
First, to test the intelligence received, that being that she was in possession of a large
quantity of drugs, and second, to enquire after her welfare by ascertaining if she was being
coerced into criminality against her will. Both of these purposes had in mind that the
appellant may have been engaged in criminal activity by being concerned in the supplying
of controlled drugs.
[19] Although there was mention in the anonymous telephone call of the appellant being
forced to house drugs, and the word “coerced” was used by the police officers who spoke to
the appellant, there is no suggestion in anything which the sheriff has set out in his report,
or in the written submissions presented to him which are attached to that report, that
“coercion” was being considered by the police in the context of a legal defence. Apart from
anything else, the initial information conveyed by telephone included the account that one
of the reasons why “Veronica” did not want the anonymous caller to tell anyone was
Page 8 ⇓
8
because she was worried that the males would cut off her drug supply. Such an explanation
would render a defence of coercion untenable. In any event, it seems inconceivable that the
defence of coercion could have been thought to apply in circumstances where the appellant
was free to come and go from her own house as she chose and to seek help from the
paragraphs [42] and [43]).
[20] The information received by the police was that the appellant was storing a high
value quantity of controlled drugs. In response to that information senior police officers
were concerned about any potential county lines issues. We would understand this to refer
to the practice of trafficking drugs from larger cities to more rural areas for distribution and
sale.
[21] In any investigation into the trafficking or supplying of controlled drugs there will
not be a single possible perpetrator of the crime (cf HM Advocate v Rigg 1946 JC 1, Lord
Justice-Clerk Cooper, page 4) nor will there be a person upon whom suspicion has centred
as the likely perpetrator of the crime (cf Chalmers v HM Advocate 1954 JC 66, Lord Justice-
General (Cooper) page 78). It is in the nature of any drug supplying operation that a
number of individuals play different but complementary roles, be they financiers, importers,
couriers, custodians, packagers, those who provide storage facilities, street level suppliers or
the like. In the case of a drug supplying operation, the question of whether a person is a
suspect may involve different considerations from those which arise in a single perpetrator
crime.
[22] When the two police officers attended at the appellant’s flat they plainly did suspect
her of involvement in a drug supplying operation. They told her so. Finding in fact (14) as
set out in the sheriff’s report explains:
Page 9 ⇓
9
“The officers then verified who the accused was and then explained to her that the
reason they were there was that they had reason to believe that she had been coerced
into criminal activity and been put into a vulnerable position and wanted to ask her
if she had been placed in a vulnerable position by storing drugs for anyone;”
[23] Having reason to believe that the appellant was storing drugs for someone cannot be
distinguished from suspecting that she was doing so, nor did the officers attempt to do so in
giving evidence.
[24] The officers went on to explain that the appellant had to be honest with them so they
could help her. There was no evidence before the sheriff of any briefing or discussion about
what assistance or advice was to be offered to the appellant. Nor does there seem to have
been any exploration in evidence of what the attending police officers had in mind
providing by way of help to the appellant should she confirm their suspicions. All that is
known is that on doing so she was immediately cautioned, said nothing incriminating and
was arrested. In the debate before us, the advocate depute was unable to explain what form
of help the police officers had in mind, or would be able to provide.
[25] The overarching test of fairness referred to by the Lord Justice-Clerk in Gilroy does
not of course require that a suspect must always be cautioned before any question can be
put to him by the police. The question in each case is whether what was done was unfair to
the accused (Pennycuick v Lees 1992 SCCR 160 Lord Justice-General (Hope) at page 164F). In
applying that test in all the circumstances of a given case the question whether the appellant
was or was not a suspected person will be one of the circumstances to take into account
(Lord Hope at page 164 C-D). Consideration will be given to matters such as whether the
questioning which had been engaged in was designed to elicit admissions of guilt, whether
any threats were made, any inducements were offered or whether undue pressure was put
Page 10 ⇓
10
upon the individual (see Tonge v HM Advocate 1982 SCCR 313 Lord Cameron at page 350
and Harley v HM Advocate 1995 SCCR 595).
[26] In the present case we consider that the sheriff erred in acceding to the Crown’s
submission. We consider that in doing so the issue was approached from too narrow a
perspective. The police officers had information about the appellant’s conduct which they
decided to act upon. The issue of whether or not she was being taken advantage of in some
fashion was no doubt a complicating one but there was no basis upon which it could
reasonably be thought that a legal defence of coercion would be available to the appellant if
she was storing drugs. Nor was it said that the police had this in mind. It is commonplace
for drug users, such as the appellant, to be taken advantage of and to be put under pressure
in all sorts of different ways to provide assistance to drug suppliers. Such circumstances
regularly feature in pleas in mitigation.
[27] The officers who attended did suspect that the appellant was storing drugs. That
was why they were there, although they may have had other unspecified notions in mind as
well. In questioning the appellant in the manner in which they did the officers declined to
accept the appellant’s initial response. They persisted and sought to obtain an admission of
involvement. They misled the appellant as to the consequences of answering their
questions. They offered the inducement that they were not there to get her into trouble and
that if she was honest with them they would be able to help her. No effort was made to
justify or explain those comments.
[28] In Gilroy at paragraph [59] the Lord Justice-Clerk recognised that matters of the sort
debated before the sheriff in the present case remain matters of fact and that respect has to
be given to the advantage which the judge (or sheriff) has had in seeing and hearing the
witnesses giving evidence. He went on to state:
Page 11 ⇓
11
“However, he is not taking a discretionary decision and it is not necessary for the
appellate court to categorise his decision as `unreasonable`. His decision is one
involving the exercise of a judgement in determining whether the investigative stage
has passed. His decision will be reversed if, upon the central facts found, the
appellate court considers that the wrong view has been taken even if the finding of
these facts remains primarily a matter for the first instance judge, subject to review
on conventional grounds.”
Decision
[29] For the reasons which we have set out above, we are satisfied that the sheriff erred in
his assessment of whether or not the evidence objected to was admissible. In our opinion,
the combination of a failure to caution the appellant at any stage and the encouragement
given to her to respond upon the premise that the police officers would provide her with
help, resulted in unfairness such as ought to have led to the objection being upheld.
[30] The appeal shall be allowed and the appellant’s conviction quashed.