‘Unlawful’ police search of car for drugs did not result in unfairness, Criminal Appeal Court rules

The Criminal Appeal Court upheld the sheriff’s ruling that what had caused the search to be unlawful was no more than a “formal or technical procedural irregularity”.

Lord Brodie (pictured), Lady Clark of Calton and Lord Philip heard that the appellants “KB” and “JG” were stopped in a silver Honda Civic after overtaking a police patrol vehicle as they were travelling north on the M74 on 24 November 2014.

They were detained under section 23 of the Misuse of Drugs Act 1971, as one of the officers, PC Irving, suspected they may be carrying controlled drugs, based on their “shaking, nervousness, lack of clarity about where they had been and because their car looked immaculate to him whereas they said they had slept in it”.

The appellants and the motor car were taken to Lockerbie police station. PC Irving said that he had detained both appellants under section 14 of the Criminal Procedure (Scotland) Act 1995 so that he could keep them in custody in order that he could search the car.

PC Irving said that he found two 9oz bars of what was later identified as cannabis resin behind the steering wheel block.

The sheriff at Dumfries repelled the preliminary pleas objecting to the admission of evidence as to the finding of the bars of the class B drug.

In the sheriff’s assessment, when looked at objectively, the factors listed by the officers were capable of raising a suspicion that something was not right.

However, when the fact that the M74 is a route which is used by drug couriers taking drugs from Liverpool and Manchester to Aberdeen was added into the mix, then suspicion might focus into a reasonably held suspicion that the appellants could be in possession of controlled drugs.

It followed that, as a matter of law, the officers had, as at the point of the roadside search, the powers conferred by section 23(2) of the 1971 Act.

Having regard to the factors upon which officers had based their suspicion, the sheriff concluded that while the search had been unlawful, the procedures followed had “not resulted in unfairness or prejudice” to the suspects, that the unlawfulness of the search was due to a mistaken belief that there was a power to search the motor vehicle and that a power of search under section 23(2)(b) of the 1971 Act had existed anyway.

In his assessment, what had caused the search to be unlawful was no more than a “formal or technical” procedural irregularity of the sort that had been considered in Lawrie v Muir and could be excused. He therefore decided that the evidence in question should not be withheld and was admissible.

The grounds of appeal were that the sheriff erred in finding that there were reasonable grounds for the detention of the appellants under section 23 of the 1971Act, and that when they searched the vehicle the police officers retained the power lawfully to do so given that they had brought the detention of the appellants under section 23 of the 1971 Act to an end and substituted detention in terms of section 14 of the 1995 Act.

However, the judges refused the appeal.

Delivering the opinion of the court, Lord Brodie said: “The sheriff, correctly, found the search to have been unlawful because the police officers considered that they were acting under a power conferred by section 14 of the 1995 Act, when that section confers no such power. The question came to be whether that illegality or irregularity could be excused having regard to the well-known case of Lawrie v Muir.

“In our opinion the sheriff was fully entitled to conclude that this was something which should be excused and that for the reasons he sets out in his report. The appeals accordingly must be refused.”

The judges also commended the “clarity, coherence and comprehensiveness” of the sheriff’s report to the court.

Lord Brodie said: “The task of an appeal court is made the easier when it has a report in which the proceedings in the lower court are set out clearly and logically and the material relevant to the decision under appeal, whether factual or legal, is presented in an accessible and readily understandable manner.”