Appeal judges dismiss T in the Park drug dealer’s claim that police search was ‘unlawful’

Connor McAteer argued that the police officer who carried out the search, a different officer from the one who detained him, did not have “reasonable grounds to suspect” that he was in possession of drugs, but the Criminal Appeal Court ruled that the officer did not require to form his own suspicion.

The then Lord Justice Clerk, Lord Carloway, sitting with Lady Dorrian and Lord Bracadale, heard that the appellant Connor McAteer was charged, along with PM, with, among other things, concern in the supplying of ecstasy at the music festival at Balado, Kinross in the summer of 2013.

He lodged a minute in terms of section 71 of the Criminal Procedure (Scotland) Act 1995, maintaining that the search of him, under section 23 of the Misuse of Drugs Act 1971, was unlawful and evidence was led.

The sheriff found that a G4S security adviser had seen the appellant standing with two other males, including PM, who seemed “a little incoherent” and appeared to have taken some substance as his pupils were dilated.

He consented to a search and was found to be carrying £680 cash and in possession of a deodorant cap containing 23 purple pills, which he admitted were for “onward sale”.

The G4S employee suspected that all three males were involved in drug dealing and called the police.

A police sergeant attended and was told about the discovery, and that three males had been stopped because they were “acting suspiciously” and “acting together”.

The sergeant therefore detained them all in terms of section 23 of the 1971 Act and searched the other two, and instructed a search of the appellant by a constable colleague, who had been told that the G4S staff had said that all three males were in possession of drugs.

The appellant was found to be in possession of £425 cash, seven bags of white powder, a Kinder Egg with 62 tablets and a further two blue tablets and a capsule.

The submission before the sheriff had been that the police had not had reasonable grounds to suspect that the appellant was in possession of drugs and hence “no power to detain or search him”.

However, the issue before the appeal court was a narrower one; whether, even if the sergeant had reasonable suspicion, it was necessary for the constable delegated with the task of carrying out the search to form his own suspicion.

But the appeal judges held that the Bill of Advocation was “incompetent”.

Delivering the opinion of the court, the Lord Justice Clerk said: “It is true that the provisions for leave to appeal in section 74 do not override the common law in relation to advocation.

“However, in the case of accused persons, who are entitled to appeal in the event of a conviction, there require to be ‘extraordinary’ or ‘very special’ circumstances, where grave injustice would result, which cannot be remedied on such an appeal, before an advocation during the course of a prosecution is competent.

“The rule is one which is based upon expediency. No such circumstances exist in this case.

“In the event of the appellant being convicted, having failed to meet the deadline for appealing the preliminary issue, he remains entitled to appeal in the normal way.”

However, the court was nevertheless asked to address the merits and the judges were prepared to do so.

Lord Carloway added: “The position is that it is accepted that the sergeant had reasonable grounds for suspicion and hence power to detain the appellant for the purposes of a search in terms of section 23 of the 1971 Act.

“Once that lawful detention had been made, it is not a relevant ground of objection that a different officer, delegated to carry out that search for sound practical reasons, did not himself or herself have an equivalent suspicion.”