Woman stopped by traffic police with drugs in her car loses preliminary appeal against legality of initial detention

About this case:

• Citation:
  [2024] HCJAC 5
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

Carol McCrone sought to argue that the uniformed officers who pulled her over, having been asked by colleagues in an unmarked car to look for her vehicle, had no direct intelligence that she was carrying drugs. The Crown position was that she had been stopped legitimately under the Road Traffic Act 1988 and the detention had only happened once the other officers arrived.

The appeal was heard by the Lord Justice General, Lord Carloway, together with Lord Woolman and Lord Matthews. Culross, advocate, appeared for the appellant and Goddard KC, advocate depute, for the Crown.

Irregular detention

On the afternoon of 24 August 2021 two police officers on traffic duty received information from colleagues that a car being driven north on the A9 was suspected to be carrying controlled drugs for onward supply. When the officers saw the car later that evening near Findhorn Bridge, they activated their blue lights and siren and stopped the car in a layby. The appellant, who was the registered keeper of the vehicle, did not interact with either of the officers.

About a minute after the appellant’s car stopped, an unmarked police car arrived containing the plainclothes officers who provided the initial intelligence about the drugs. They commenced the detention procedure under section 23 of the Misuse of Drugs Act 1971 and found a sizeable quantity of controlled drugs in the appellant’s car.

As a preliminary point before the sheriff, the appellant argued that the recovery of the drugs from her car was not admissible in evidence. The traffic police had unlawfully detained her because they had no direct knowledge of the intelligence available to the other officers. The sheriff rejected this argument as he found as a matter of fact the traffic officers had not detained the appellant, merely performed a routine stop under the Road Traffic Act 1988 to verify her identity and check her licence.

It was argued for the appellant that her detention was irregular and the police had given inaccurate reasons for stopping her. The original intelligence was not sufficient to justify detention. The Crown replied that in the case of Haashi v HM Advocate (2015), a car had been stopped and the circumstances thereafter allowed the police to carry out a search for drugs. Even if there had been an irregular search, its product may still be admissible.

Common situation

Lord Carloway, delivering the opinion of the court, began: “This is an example of a common situation. Police officers receive intelligence that controlled drugs are being transported by car on a public highway. They will often (as here) be in an unmarked car and presumably in plain clothes. Since they are not in uniform they do not have the power to stop a car and it would be a dangerous thing to attempt. They therefore ask uniformed officers in a marked police vehicle to stop the car under suspicion, pending their arrival.”

He continued: “Whether a person has been detained in terms of section 23 of the Misuse of Drugs Act 1971 is primarily a matter of fact for the court of first instance to determine. The decision can only be impugned if the court has erred in law or in the assessment of the circumstances.”

Asking whether the sheriff had made the right decision, Lord Carloway said: “The sheriff has found as fact that the traffic officers stopped the appellant pursuant to their powers under sections 163 and 164 of the 1988 Act. The fact that they had been told that it was suspected that the car was carrying drugs does not remove their powers to stop it for a routine check.”

He concluded: “It was the officers in the unmarked police car who had thereafter detained the appellant, having had reasonable grounds to do so under section 23 of the 1971 Act.”

The appeal was therefore refused.