(FIRST) KB AND (SECOND) JG
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 17
HCA/2014-4635/XC &
HCA/2014-4634/XC
Lord Brodie
Lady Clark of Calton
Lord Philip
OPINION OF THE COURT
delivered by LORD BRODIE
in
the appeals under section 74(1) of the Criminal Procedure (Scotland) Act 1995
by
(FIRST) KB; and (SECOND) JG
Appellants;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: M MacKenzie; Gavin Bain & Co, Aberdeen (for the first appellant)
C M Mitchell; George Mathers & Co, Aberdeen (for the second appellant)
Respondent: Edwards, AD; Crown Agent
11 December 2014
Introduction
[1] These are appeals at the instance of KB and JG in terms of section 74(1) of the Criminal Procedure (Scotland) Act 1995 from a decision of the sheriff sitting at Dumfries at a first diet held in terms of section 71 of the 1995 Act on 20 October 2014. The appellants have been indicted on a single charge of being concerned in the supply of cannabis resin in contravention of section 4(3)(b) of the Misuse of Drugs Act 1971.
[2] Having heard evidence as to the circumstances of the stopping of the appellants’ motor vehicle at the roadside, the subsequent detention of the appellants and the search of the motor vehicle which had by then been removed to a police station, purportedly in terms of section 14 of the 1995 Act, the sheriff’s decision was to repel the preliminary pleas stated in minutes lodged in terms of sections 71(2) and (79)(2)(b)(iv), objecting to the admission of evidence as to the finding of bars of cannabis resin in the motor vehicle on 24 November 2013.
[3] Put shortly, the grounds of appeal, common to both parties, are that the sheriff erred in finding that (1) there were reasonable grounds for the detention of the appellants under section 23 of the 1971 Act and (2) 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.
Statutory provisions
[4] In so far as is relevant section 23 of the Misuse of Drugs Act 1971 provides as follows:
“...
(2) If a constable has reasonable grounds to suspect that any person is in possession of a controlled drug in contravention of this Act or of any regulations or orders made thereunder, the constable may –
(a) search that person, and detain him for the purpose of searching him;
(b) search any vehicle or vessel in which the constable suspects that the drug may be found, and for that purpose require the person in control of the vehicle or vessel to stop it;
(c) seize and detain, for the purposes of proceedings under this Act, anything found in the course of the search which appears to the constable to be evidence of an offence under this Act.”
[5] In so far as is relevant the Criminal Procedure (Scotland) Act 1995 provides as follows:
“14. - Detention and questioning at police station.
(1)Where a constable has reasonable grounds for suspecting that a person has committed or is committing an offence punishable by imprisonment, the constable may, for the purpose of facilitating the carrying out of investigations—
(a) into the offence; and
(b) as to whether criminal proceedings should be instigated against the person, detain that person and take him as quickly as is reasonably practicable to a police station or other premises and may thereafter for that purpose take him to any other place and, subject to the following provisions of this section, the detention may continue at the police station or, as the case may be, the other premises or place.
(2) Subject to section 14A, detention under subsection (1) above shall be terminated not more than 12 hours after it begins or (if earlier)—
(a) when the person is arrested;
(b) when he is detained in pursuance of any other enactment; or
(c) where there are no longer such grounds as are mentioned in the said subsection (1),
...
(4) Subject to subsection (5) below, where a person has previously been detained in pursuance of any other enactment, and is detained under subsection (1) above on the same grounds or on grounds arising from the same circumstances as those which led to his earlier detention, the period of 12 hours mentioned in subsection (2) above shall be reduced by the length of that earlier detention.
...
(7) Where a person is detained under subsection (1) above, a constable may—
...
(b) exercise the same powers of search as are available following an arrest.
...
18. - Prints, samples etc. in criminal investigations.
(1) This section applies where a person has been arrested and is in custody or is detained under section 14(1) of this Act.
(2) A constable may take from the person, or require the person to provide him with, such relevant physical data as the constable may, having regard to the circumstances of the suspected offence in respect of which the person has been arrested or detained, reasonably consider it appropriate to take [from him or require him to provide, and the person so required shall comply with that requirement].
...
(8) Nothing in this section shall prejudice—
(a) any power of search;”
Evidence heard by the sheriff
[6] The sheriff in his report narrates the evidence heard by him as follows:
“[1] P.C. [I] gave evidence as follows; he had 21 years police experience much of which had been spent at the Lockerbie Traffic Department. He had spent the last 16 years in this department.
[2] On 24th November 2013 he was on patrol with PC [F] on the M74 with general duties of stopping and checking motorists. He spotted a silver Honda Civic near junction 19 on the northbound carriageway. The police vehicle was in the inside lane (lane 1) and the Honda overtook them in the outside lane (lane 3). There were no other vehicles nearby and the Honda should therefore have overtaken the police vehicle in lane 2 having come from lane 1. He therefore pulled the Honda over onto the hard shoulder in order to speak to the driver about his lane discipline. KB was the driver and JG was the front passenger. There was nobody else in the car. PC [I] spoke to JG first because he went to the passenger side of the vehicle. He told the appellants why the vehicle had been stopped and took their details. They provided no good reason why they had used only lane 3. He asked JG for identification and JG showed his driving licence, and while he did this his hand was visibly shaking. PC [I] then asked for further details including where they had been where they were going.
[3] The appellants told PC [I] that they had gone to Manchester on the previous day to watch a boxing match – Froch v Groves. PC [I] was a fan of boxing and asked them what they had thought about the fight. He thought that the replies which they gave were vague, did not describe the fight properly and did not include who had won. PC [I] was suspicious that the appellants were hiding something from him and were not telling the truth. He asked the appellants where they had stayed overnight and they said that they had slept in the car. PC [I] noted that the car was tidy and that there was no sign of any toilet or overnight bag, that the appellants were tidy and that their clothes were not creased or messy. PC [I] thought that the demeanor of the appellants was evasive and that things were just not adding up for him.
[4] PC [I] said that he had dealt with a lot of people on the M74 and he was aware of it being a route for carrying drugs up from Manchester to Aberdeen. He therefore detained both appellants under section 23 of the 1971 Act.
[5] He 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 that night.
[6] He and PC [F] gave the appellants a cursory search, principally for safety reasons, and found no weapons on them. The appellants and the motor car were taken to Lockerbie police station.
[7] At Lockerbie police station the appellants were again searched but nothing of interest was found. They were booked in there and detained under section 14 of the 1995 Act. PC [I] said that he had detained both appellants under section 14 so that he could keep them in custody in order that he could search the car. He said that section 14 allowed him to search any vehicle in which suspects had travelled, in keeping with his drug powers. He said that he searched the vehicle because he had a suspicion that they had controlled drugs in the car and that he searched the vehicle under section 23 using section 14 to keep the appellants in custody meantime.
[8] PC [I] said that he found two 9 ounce bars of what was later identified as cannabis resin behind the steering wheel block. At that point he stopped the search and called the CID to attend in order to take photographs and continue the search.
[9] In cross‑examination for KB; he said that the main reasons for his suspicions were the shaking hand of JG, the vagueness of the appellants about Froch v Groves fight, the tidy appearance of the appellants as compared with their assertion that they had slept in the car overnight and the fact that they were travelling from Manchester to Aberdeen on the M74. When the section 23 detention ended he used section 14 to keep the appellants in custody while he searched the car. Section 14 gave him the power to search all of the appellants’ property. Section 23 also covered the car search. The section 23 detention had ended before the section 14 detention commenced.
[10] In cross‑examination for JG (sic); he said that the police had no suspicion of any drugs when the car was stopped. This was a pitch black, cold night in November, but it was not frosty. The passenger window was rolled down at first and it is possible that cold air got into the car through the open window. PC [I] knew that when somebody was shaking due to the cold or due to nerves, and in his opinion JG (sic) was shaking due to nerves. The appellants were detained under section 14 before the car search commenced. Only the section 14 detention was in force when the car was searched. PC [I] accepted that section 14 did not give him power to search the vehicle.
[11] In re-examination; PC [I] confirmed that they had detained the appellants in order to allow the car to be searched.
[12] In response to questions from me; PC [I] confirmed that he was a trained search officer and that he found the cannabis resin by putting his hand up under the steering column into a small void. The search had not been a disassembly of the car and had not involved dismantling it in any way. The car had not been searched at the roadside because it had been too dangerous to do so there, and in any event the light was not good enough there.
[13] P.C. [F] gave evidence as follows; he had 8 years of service, of which one year had been with the Traffic Department at Lockerbie. The Honda Civic car was pulled over as a result of the poor standard of driving displayed by overtaking in lane 3 when there had been no other traffic in the other two lanes. KB was in the driver’s seat and JG was in the front passenger seat. PC [I] went to the near side of the car, followed by PC [F]. PC [F] heard PC [I] tell the driver why they had been stopped and asked for identification and licenses. Both appellants produced licenses and both were very nervous with JG physically shaking when he handed over his licence. The appellants said they were coming back from Manchester where they had been at a boxing match. PC [I] had asked about the fight and also for other details. PC [F] does not know much about boxing but the answers given by the appellants appeared to be short of details about the fight – they didn’t appear to know who had been fighting or in what round the fight had finished. PC [F] suspected that the appellants had not been to a boxing match and had something to hide. PC [I] asked them why they had not come back sooner, but no explanation was offered. The appellants claimed to have slept in the car. Both appellants looked unkempt and KB had the appearance of a drug user. The M74 was used for transporting drugs from the south up to Aberdeen and PC [F] was therefore suspicious that there may be drugs in the car. Both men were detained under section 23 and were taken back to Lockerbie.
[14] There, PC [F] did a cursory search of the car in which he found nothing. Both appellants had been searched by other officers but no drugs had been found. They were then detained under section 14 of the 1995 Act because there was no longer any suspicion that they had drugs on their person and because they wanted to keep the appellants in custody so that the car could be searched for drugs. He and PC [I] then searched the car properly.
[15] PC [F] said that he was sure that section 14 allowed the police to search the car. He said that they had ‘moved’ the appellants; detentions from section 23 to section 14 because no drugs had been found on their persons and because the Lord Advocate’s guidelines required suspects to be moved to section 14 after a section 23 detention had been completed.
[16] In cross‑examination for KB; PC [F] could not recall when those Lord Advocate guidelines had been issued. Both appellants were nervous. He first noticed the nervousness in KB when he was talking about the boxing match because he was stuttering, unsure and seemed uneasy. The appellants seemed to know nothing of a fight that they had supposedly just attended. The interior of the car and the tidy clothes of both appellants gave no appearance of them having slept in the car overnight. He disagreed that the appellants had been untidy and said that they had been unkempt in that they were not smart and their hair was untidy. He thought that KB had the pale, gaunt expression of a drug user, and this was based on his experience. This was something that he had noticed immediately. The car had been searched under powers of section 14 of the 1995 Act.
[17] In cross‑examination for RG; PC [F] accepted that it would have been cold at the time when the car was stopped and that cold air would have got into the car when the window was wound down. JG hands shook at that point and his voice also shook when he spoke. He would not have expected JG to shiver simply due to the cold as soon as the car window was opened. He did not carry out any drug driving procedures because KB had showed no signs of impairment. The M74 is the main west coast route from England to Scotland and is used for transporting drugs. The fact that a car is on the M74 does not, of itself, give rise to a suspicion that it may contain drugs.
[18] No evidence was led by or for either of the appellants.”
The sheriff reports that he found both officers to be credible and reliable on the essential parts of their evidence and that it was clear that, subjectively, both officers had formed the genuine suspicion that there could be drugs in the possession of the appellants or in the motor vehicle. He further reports that he concluded on the balance of probabilities that the motor vehicle had been searched by the officers in the mistaken belief that they had power to do so in terms of section 14 of the 1995 Act.
The basis of the sheriff’s decision
[7] In order to determine whether evidence of the finding of cannabis resin in the motor vehicle was admissible, the sheriff addressed two issues: first, whether at the point of the roadside stop the police officers had reasonable grounds to suspect that the appellants were in possession of a controlled drug; second, whether the subsequent search of the motor vehicle at the police station, purportedly in terms of section 14 of the 1995 Act, was lawful.
[8] In relation to the first issue he applied the law as stated at paragraphs 13 to 15 in the opinion of the court in McAughey v HM Advocate 2014 SCCR 11. Having determined, as a matter of fact, that the officers had formed a genuine suspicion that drugs could be found in the possession of the appellants or in their motor vehicle, the sheriff returned to consider whether, on the basis of an objective assessment, the police officers had reasonable grounds for that suspicion. The sheriff found, on the evidence, that the officers had based their suspicion on the following information:
“(a) JG’s hands were shaking when he produced his driving licence for inspection.
(b) Both appellants displayed nervousness when speaking to the police.
(c) The appellants said that they had been to an international boxing match in Manchester the night before, but a lack of basic knowledge of that fight suggested that this was a false story.
(d) The appellants said that they had slept in the car overnight, but this was apparently contradicted by the clean and tidy condition of the car and the unruffled condition of their clothes.
(e) PC [F] thought that KB had the ‘gaunt’ look of a drug user (note; PC [I] did not comment on this).
(f) The appellants provided no explanation as to why they had not returned sooner from Manchester and there was therefore an unexplained period of time in their journey.
(g) The appellants said that they were travelling Manchester to Aberdeen.
(h) The M74 is a route which is used by drug couriers taking drugs from Liverpool and Manchester to Aberdeen.”
In the sheriff’s assessment, when looked at objectively, the factors listed from (a) to (g) were capable of raising a suspicion that something was not right. However, when factor (h) 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.
[9] By the time that the motor vehicle was searched, the appellants had been detained in terms of section 14 of the 1995 Act. The sheriff found that in carrying out the search the officers believed that they had power to do so in terms of section 14. In that they were mistaken. As was conceded on the part of the Crown, section 14 of the 1995 Act does not confer power to search a vehicle. Because the police officers had purported to act under a power which they did not have, the sheriff concluded that the search had been unlawful. However, that was not determinative of the question as to whether evidence of what was found during the search was admissible. Regard must be had to the principle to be derived from the leading case of Lawrie v Muir 1950 JC 19 at 26 to 27 that the court may excuse an irregularity in the method by which evidence has been obtained, thereby rendering that evidence admissible. In the opinion of the sheriff, although the search had been unlawful, at the time that it was carried out there still subsisted the power conferred by section 23(2)(b) of the 1971 Act which therefore remained available to the police officers had they chosen to use it. With that in mind, the sheriff then proceeded to consider whether the circumstances of the case were such that it would be appropriate to excuse the illegality and admit evidence of what the officers had found. He considered the following factors to be material:
“(1) The police made an error to which Act gave them the power to search the car.
(2) The police acted in good faith. PC [F] believed that he was following the Lord Advocate’s guidelines when he followed section 14 of the 1995 Act. He was therefore trying to follow the correct procedures.
(3) Although the police used the wrong Act, the power to search the car was available to them anyway under section 23(2)(b) of the 1971 Act.
(4) This concerned a search of an inanimate object and was not to do with a personal or invasive search of a suspect.
(5) The search of the car was of the kind envisaged by the 1971 Act – a search by the detaining officers and not a specialist, lengthy search that might involve the disassembly of the car.
(6) There was no element of trickery, deception or guile by the police.
(7) There was no element of pressure or intimidation by the police.
(8) The search led to the finding of a significant – greater than personal use – quantity of a controlled drug.
(9) There was no prejudice to the suspects caused by the use of the (wrong) section 14 power.
(10) The car was at the police station, there was no real element of urgency to search the car and neither was there a risk of the evidence disappearing and so the officers could have asked for permission to search the car or sought a warrant. The reason that they did not use those options was because they thought that they were following the correct statutory procedures.
(11) There has been no unfairness to the suspects caused through the use of the wrong Act.”
[10] Having regard to the factors that he had identified, 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. He refused the minutes for the appellant.
Submissions
The first appellant
[11] Miss MacKenzie, on behalf of the first appellant, submitted that while the sheriff had identified the correct test for determining whether there had been reasonable grounds to suspect that the appellants were in possession of a controlled drug, he had misdirected himself by giving any weight at all to the factor designated (h): that the M74 was a route which is used by drug couriers taking drugs from Liverpool and Manchester to Aberdeen. This was altogether too general a proposition. It was no more than saying that the M74 was an arterial route leading into Scotland from England. This was very different from what might be the situation where suspicion was based on an accused person being found in a specific location, a particular address or a short alleyway for example, which was associated with drug users or drug dealers. It was clear that factor (h) was critical to the sheriff’s decision‑making. He was not entitled to take it into account. Evidence of all procedure subsequent to the roadside stop should be held inadmissible.
[12] Miss MacKenzie submitted that even if she was wrong in arguing that the test set out in McAughey v HM Advocate was not met in this case and that therefore, at the point of the roadside stop, the officers had the power of search conferred by section 23(2)(b) of the 1971 Act, that power was brought to an end on the detention of the appellants in terms of section 14 of the 1995 Act. Section 14(7)(b) confers on officers the same powers of search as are available following an arrest. These, as had been conceded by the Crown, do not include a power to search a motor vehicle. That would have required a warrant and, in the circumstances, where the appellant’s had been detained, there was no reason why a warrant could not have been applied for. It was Miss MacKenzie’s submission that it was simply impossible for the more limited section 14(7) search power to exist simultaneously with the section 23(2)(b) power. Miss MacKenzie accepted that it might not have been practical to exercise the section 23(2)(b) power at the roadside; the police would therefore have been entitled to remove the vehicle to a police station for the purpose of search. However, the option of carrying out a search in terms of the section 23(2)(b) power was brought to an end by the police exercising the option of detaining the appellants. Miss MacKenzie did not take issue with the sheriff’s view that a section 23(2)(b) power subsisted for a reasonable period of time after the formation of a reasonable suspicion but once section 14 was deployed then any search must be either such as is authorised by section 14(7) or by warrant.
[13] Accordingly, submitted Miss MacKenzie, when he came to consider whether the illegality in the search should be excused, the sheriff had been wrong to proceed on the basis that the power to search the motor vehicle had in fact been available to the police officers by virtue of section 23(2)(b). His evaluation was therefore flawed. The search had been unlawful. This was more than a mere technical irregularity. Evidence of anything found during the search should not be admitted.
Second appellant
[14] Miss Mitchell adopted Miss MacKenzie’s submissions on reasonable suspicion but she accepted that had it been the case that the police officers did have a reasonable suspicion they had properly taken the motor vehicle and the appellants to the police station: cf Young v McLintock 2012 SCCR 644. Had the officers immediately searched the vehicle at Lockerbie Police Station, there could be no complaint. That would have been a lawful search in terms of section 23(2)(b) of the 1971 Act. Miss Mitchell accepted, as had been held by the sheriff, that the effect of section 23(2) is to confer separate and independent powers as described in paragraphs (a), (b) and (c) of subsection (2) of section 23. However, it was Miss Mitchell’s submission that once the police exercised a power to detain in terms of section 14 of the 1995 Act, the effect of that is to supersede section 23 and such powers as are conferred by section 23, in their entirety. In addition to section 14(7), Miss Mitchell drew attention to section 14(4) as an indication that similar powers conferred by different statutes were to be regarded as consecutive in their operation rather than concurrent. That said, Miss Mitchell drew attention to the decision of the court in Dowling v HM Advocate 2001 SCCR 13 where the view had been expressed that the powers of search in terms of section 23(2)(b) of the 1971 Act could properly be operated alongside the powers of detention under section 24 of the Criminal Consolidation (Scotland) Act 1995 in relation to the same person. Given that, in Miss Mitchell’s submission, the invocation of section 14 limited the police to what section 14 empowered them to do, the police action in searching the motor vehicle at the police station was more than a trivial irregularity such as had been excused in Lawrie v Muir. The case was closer to, for example, that of M’Govern v HM Advocate 1950 JC 33 where the Lord Justice General observed (at 37) that
“unless the principles under which police investigations are carried out are adhered to with a reasonable strictness, the anchor of the entire system for the protection of the public will very soon begin to drag.”
Respondent
[15] The advocate depute submitted that the sheriff had been correct to identify the power conferred by section 23(2)(b) of the 1971 Act as independent and freestanding from the other powers conferred by the subsection. As far as reasonable suspicion was concerned, it was clear from the sheriff’s report that he had applied the correct legal test and followed a clear and logical decision‑making process which brought him to a conclusion that he had been entitled to reach. Whether the facts in any individual case provide a sufficient basis for reasonable suspicion is a matter of degree and circumstance: Gill v PF Inverness [2014] HCJAC 72. The sheriff had been entitled to have regard to the fact that the M74 provides a route into Scotland from Liverpool or Manchester, albeit that it was only one circumstance to be considered in the light of all the other circumstances. That is what the sheriff had done.
[16] The advocate depute agreed with the sheriff’s conclusion that the power of search conferred by section 23(2)(b) of the 1971 Act continued to subsist, at least for a reasonable period of time, notwithstanding the detention of the appellants in terms of section 14 of the 1995 Act. She relied on what had been said in Dowling supra and section 18(8) of the 1995 Act. Section 18(1) stated that the section applied where a person had been detained under section 14(1). Section 18(8) provided that nothing in the section prejudiced any power of search. That, submitted the advocate depute, should be interpreted as preserving any pre‑existing power of search notwithstanding a section 14 detention.
[17] The advocate depute did not go the distance of suggesting that the existence of a section 23(2)(b) power rendered a search which was purportedly carried out in terms of section 14 of the 1995 Act lawful. She accepted that in the circumstances of the present case, the search of the motor vehicle had been unlawful. However, the sheriff had been correct in having regard to the fact that a power subsisted in terms of section 23(2)(b). His assessment that, in all the circumstances, the illegality should be excused was irreproachable.
Decision
[18] As was observed by Lord Malcolm giving the opinion of the court in McKenzie v Procurator Fiscal Forfar [2014] HCJAC 132, the foundation of the decision in McAughey was the decision of the House of Lords in O’Hara v The Chief Constable of the RUC [1997] AC 286. There, at 301, Lord Hope said this about a statutory power of arrest:
“What it does require is that the constable who exercises the power has first equipped himself with sufficient information so that he has reasonable cause to suspect before the power is exercised...So it is the facts known by or the information given to the officer who effects the arrest or detention to which the mind of the independent observer must be applied. It is this objective test, applying the criterion of what may be regarded as reasonable, which provides the safeguard against arbitrary arrest and detention.”
While deprivation of liberty is a more serious interference with the rights of the individual than is the search of his person or property, the requirement that a constable must have reasonable grounds for his suspicion that a person is in possession of a controlled drug before he can exercise the powers conferred by section 23(2)(b) of the 1971 Act similarly provides an important protection against arbitrary action or what has the appearance of arbitrary action. As the sheriff recognised, it was for the police officers to justify their decisions to carry out searches of the persons of the appellant and the motor vehicle by reference to the objective factors upon which they had formed their subjective opinions. However, the nature of suspicion is that it may be rationally built up incrementally by a combination of factors none of which, taken by themselves, have decisive weight. The analogy with the effect of circumstantial evidence is obvious. Here, it could not be said that the police officers’ knowledge that the M74 is a route sometimes taken by those bringing controlled drugs from England into Scotland, taken on its own, provided reasonable grounds of suspicion justifying the search of particular individuals or a particular vehicle travelling on that road. However, if it be a fact, as it apparently is, it cannot be said to be an irrelevant one. The sheriff was entitled to take it into account, together with all of the other circumstances in the case. Accordingly, contrary to Miss MacKenzie’s submission, the sheriff did not misdirect himself. The judgement was for him to make on what was a question of fact: Haashi v HM Advocate [2014] HCJAC 48 at paragraph [7]. He explains his reasoning. It cannot be said that his judgement was wrong.
[19] It is accepted on behalf of the appellants that if it was the case that the police officers had reasonable grounds to suspect that the appellants were in possession of controlled drugs then they had the various powers which are conferred by section 23(2) and that as far as the power to search a vehicle which is conferred by section 23(2)(b) is concerned, that power need not have been exercised at the roadside but could also have been exercised once the vehicle was removed to a police station for more convenient inspection. In such an event the sheriff’s view that section 23(2)(b) power would subsist even after a personal search has been completed and the consequent power of detention under section 23(2)(a) has ended was accordingly not challenged. Neither, at least as a matter of generality, was the sheriff’s view that while a section 23(2)(b) power could not continue to exist indefinitely, it would exist for a “reasonable time”. What the appellants argued, however, was that the section 23(2)(b) power came to an end as soon as the police exercised their power to detain in terms of section 14 of the 1995 Act; the section 23(2)(b) power simply could not coexist with the different powers conferred by section 14. We do not accept that submission. We see no reason why powers conferred by different statutes cannot, as a matter of generality, operate at the same time: cf Dowling v HM Advocate supra at paragraph 23. Section 18(8) of the 1995 Act, which is relied on by the advocate depute, does not, in our opinion, bear on the matter. The purpose of that provision is to make clear that the specific powers conferred by section 18 to take prints and samples from an arrested or detained person are without prejudice to such other powers as may exist. The provision does not go further than that.
[20] We are content to agree with the sheriff that how long a power of search under section 23(2)(b) will continue to subsist must depend upon consideration of all the facts and circumstances in a particular case. Here although the matter is not critical, he found that it did subsist at the time of search. 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 supra. 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.
[21] The appeals accordingly must be refused.
[22] We would not wish to part from this case without commending the clarity, coherence and comprehensiveness of the sheriff’s report. 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. That was so in this case.