Police search of car for drugs was lawful as detaining officer had ‘reasonable grounds to suspect’, appeal judges rule

Lord Carloway

A man accused of being concerned in the supply of drugs who challenged the admissibility of evidence obtained during a search of his vehicle has had an appeal refused.

Robert Borland claimed that the police officer who detained him had “no reasonable grounds” to suspect, but the Criminal Appeal Court ruled that the officer did have his “own reasonable suspicion” because a detective had informed him that there were controlled drugs in the car.

The Lord Justice Clerk, Lord Carloway  sitting with Lady Paton and Lord Bracadale, heard that the appellant raised by way of preliminary issue, an objection to the admissibility of evidence obtained during a search carried out under section 23 of the Misuse of Drugs Act 1971.

The search of the grey Fiat Punto, which was carried out later at a police office, revealed 500g of diamorphine hidden in the central console of the car, of which the appellant was the driver and sole occupant.

The stopping of the appellant’s car formed part of a large scale police operation investigating the suspected supply of Class A controlled drugs in Central Scotland, whereby drugs were being distributed to couriers from the premises of a waste disposal company in Shotts.

The investigating team were privy to intelligence about the Fiat Punto, the identity of its driver, its predicted route along the M90, and its intended destination in Dundee.

DS McKay, who was in charge of the surveillance operation, telephoned the Perth Roads Policing Department and told PC Gillies that there was “active on-going surveillance on the car” and said he would like it stopped as he had information that there were controlled drugs in the vehicle.

PC Gillies and a colleague stopped the car at a point where the M90 becomes the A90 on the way to Dundee, near to Kinfauns, and told the appellant that he was being detained in terms of section 23 because he had been given information that there were controlled drugs in the car and he felt it was “proportionate” to detain the appellant for the purposes of a search.

The investigating team officers arrived immediately thereafter and also told the appellant that he was being detained under section 23, but were told that that had already been done.

It was submitted to the judge by the Crown that PC Gillies had effected a valid detention, having had reasonable grounds to suspect.

In any event, a second detention had been carried out immediately afterwards by officers who had undoubtedly had reasonable grounds, and since there was no prejudice to the appellant or unfairness, any irregularity ought to be “excused”.

The appellant contended that there had been no reasonable grounds to suspect on the part of PC Gillies, as distinct from the investigating officers, and that the purported detention was “unlawful”, but the trial judge repelled the objection.

On appeal, particular emphasis was placed on the circumstances ofMcGaughey v HM Advocate 2014 SCCR 11 and of HM Advocate v B HCJ 71 in arguing that there was “no good reason” for the investigating officers not to have given such information to the detaining officer as would have allowed him to have formed his own conclusion on whether reasonable grounds to suspect existed.

Officers who sought to exercise a statutory authority to detain persons ought to know the precise limits of that authority and should be held to exceed these limits “at their peril”.

The fact that investigating officers arrived shortly after the detention “did not excuse the irregularity”, it was submitted.

Refusing the appeal, the judges explained that the issue was whether PC Gillies was in possession of “sufficient information” to provide him with reasonable grounds to suspect that there were controlled drugs in the car, adding that in this area of the law, as explained in McKenzie v Murphy 2015 SCCR 88, “each case will depend upon its own particular facts and circumstances”.

Delivering the opinion of the court, the Lord Justice Clerk said: “It is true that PC Gillies was following instructions received from DS McKay. However, the judge at first instance has found in fact that PC Gillies had sufficient information to provide him personally with reasonable grounds to suspect.

“PC Gillies had been told by a detective officer engaged in an active, on-going surveillance operation that he (the officer) was aware that the car was carrying drugs. That was sufficient in the context of this type of case for a reasonable suspicion to be formed, without the need for further interrogation of the source officer.

“The Court in McKenzie v Murphy explained that the ratio of McGaughey vHM Advocate was that a reasonable suspicion could not be created in the mind of a detaining officer merely on the basis of an instruction to detain from a fellow officer. In McGaughey, all that the detaining officer had was information conveyed to him second hand that the Scottish Crime and Drug Enforcement Agency thought that a particular car might be carrying drugs.

“In this case, in contrast, the detaining officer had information conveyed to him directly from a detective engaged in an active, on-going surveillance operation. That information was that there were drugs in the car; and not merely that DS McKay suspected that there might be.

“Following Lord Steyn’s dictum in O’Hara v The Chief Constable of the RUC AC 286, Lord Malcolm in McKenzie confirmed that it was not enough for a superior officer, who had reasonable suspicion, to order a detention by another officer. The detaining officer must have his own reasonable suspicion. However, it was stressed that that suspicion could come from hearsay information emanating from another officer. That is the position here.”