Trial judge erred in allowing defence challenge to be heard when objection was not raised as preliminary issue

The trial judge had allowed the objection to be raised and sustained the challenge to the appellant’s detention, but held that the evidence obtained during the subsequent search could be admitted - a decision which was challenged on appeal.

However, the Appeal Court of the High Court of Justiciary ruled that the trial judge “acted contrary to the legal requirements imposed upon her” by allowing the objection to be heard and therefore concluded that there was no “miscarriage of justice”.

‘Unlawful detention’

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Turnbull, heard that the appellant Pradeep Bhowmick and his co-accused James Quinn were found guilty in September 2016 of an offence of being concerned in the supplying of the class A drug, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971.

The court was told that during the course of the trial senior counsel for the appellant took objection to the evidence of his detention, on the basis that the detaining officer did not have “reasonable grounds” to suspect that the appellant was in possession of a controlled drug and that his detention in terms of section 23(2) of the 1971 Act was unlawful, meaning the subsequent recovery of the his phone during the later search was also unlawful since it flowed directly from the unlawful detention.

The objection had not been raised by preliminary issue prior to the preliminary hearing in the case, as required by section 79(1) of the Criminal Procedure (Scotland) Act 1995, but the trial judge permitted the objection to be heard and concluded that the appellant had indeed been unlawfully detained.

However, the trial judge also considered that given the urgency of the situation the police were entitled to preserve the crime scene and she accordingly allowed the evidence of the recovery of the appellant’s mobile phone found during the subsequent search under the authority of a warrant.

Judge ‘wrong’ to hear objection

The appellant was granted leave to appeal on a ground challenging the admissibility of evidence concerning the recovery of his mobile phone, from which evidence implicating him in the commission of the crime was obtained, but the appeal court said it wished to be addressed on the “correctness” of the trial judge’s decision on the validity of the appellant’s detention.

Victoria Dow, on behalf of the appellant, raised a number of issues concerning the proper approach to an assessment by the court of whether there existed reasonable grounds to suspect, such as would permit a police constable to exercise the power of detention, as well as the circumstances in which police officers would be entitled to secure a crime scene.

However, the advocate depute Jane Farquharson submitted that the trial judge was “wrong” to have allowed the objection to be raised, arguing that the judge acted “in conflict with the statutory provisions” in permitting the challenge to be heard.

When this issue was raised with counsel for the appellant, she candidly acknowledged that, if the trial judge ought never to have entertained the objection in the first place because she did not have the power to do so, a miscarriage of justice could not be said to have occurred.

‘Incorrect approach’

The appeal judges ruled that the trial judge was not entitled to entertain the objection raised and which, in part, she sustained.

Delivering the opinion of the court Lord Turnbull said: “It is apparent that the trial judge consciously made a decision not to comply with the terms of section 79A(4) of the 1995 Act…She appears to have come to the view that compliance with the statutory provision might jeopardise an accused person’s right to a fair trial if the objection disclosed the presence of evidence which would, or might, have been ruled inadmissible if taken timeously.

“In deciding to hear the objection in the present case because of a concern as to a possible impact on the accused’s right to a fair trial, the trial judge looked at the restriction on the right to raise an objection in isolation. This was not a correct approach.

“In the present case the trial judge acted contrary to the legal requirements imposed upon her. She had no information which would have enabled her to conclude that the objection could not reasonably have been raised earlier. She was not invited so to conclude and she did not do so.

“There is no other dispensing provision attached to the mandatory requirement provided for by section 79A(4). In these circumstances the statutory provision required the judge to refuse leave to raise the objection and she ought not to have entertained it.”

Having come to this view, the judges concluded, as was conceded, that a miscarriage of justice could not be said to have occurred.

He added: “The trial judge afforded an advantage to the appellant which she was not empowered to give. Any complaint about the way in which she then disposed of the point argued before her is of no assistance to the appellant.”