APPEAL AGAINST CONVICTION BY STATED CASE BY TRACY McKENZIE AGAINST PROCURATOR FISCAL, FORFAR
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2014] HCJAC 132
HCA/2014/3730/XJ
Lady Dorrian
Lord Malcolm
Sheriff Principal Scott QC
OPINION OF THE COURT
delivered by LORD MALCOLM
in
APPEAL AGAINST CONVICTION BY STATED CASE
by
TRACY McKENZIE
Appellant;
against
PROCURATOR FISCAL, FORFAR
Respondent:
Appellant: MacKenzie; Faculty Services, Edinburgh
Respondent: Fairley QC, AD; Crown Agent
4 November 2014
[1] On the morning of 4 February 2014 the appellant was stopped in a Forfar street by two police officers. They advised her that she was being detained in terms of section 23 of the Misuse of Drugs Act 1971, thus allowing her to be searched. She removed a quantity of heroin from a pocket and gave it to the officers. In due course the sheriff convicted the appellant of a contravention of section 5(2) of the Act. Her appeal against conviction proceeds upon the basis that the detention was unlawful, thus the evidence of her possession of the heroin should not have been allowed. This turns on whether the officers had “reasonable grounds to suspect (that she was) in possession of a controlled drug” in terms of section 23(2) of the Act.
The sheriff’s findings in fact
[2] After a trial the learned sheriff made certain findings in fact. The relevant findings can be summarised as follows. The officers were on duty in a marked police car. They saw the appellant enter a block of flats. She was not known to the officers. However they knew that a man suspected of distributing heroin lived in one of the flats. He suffered health problems affecting one of his legs. The officers drove around the block. Less than a minute later, they returned to the scene and saw the appellant walking away from the flats. The driver stopped the vehicle and the officers approached the appellant. They asked her where she had been. She said that she had been to see the said man as he had a blood clot. She was asked whether she had anything in her possession which she ought not to have. She replied “No, give me a search.” Based on the police intelligence, the appellant’s movements that morning, and her replies to questions, the officers genuinely suspected that she was in possession of controlled drugs. The appellant was advised that she was being detained, at which point she handed over two tinfoil wraps. Subsequent analysis confirmed that they contained heroin.
[3] On the basis of the above findings in fact, the sheriff decided that the officers had reasonable grounds for their suspicion. It followed that the detention was lawful and that the evidence of the appellant’s possession of heroin was admissible. A fine of £150 was imposed, with time to pay.
The stated case
[4] In the stated case for this court’s opinion, the sheriff explains that the defence submission focussed upon the decision in McAughey v HMA (2014) SCCR 11. It was contended that, in the light of that decision, it was incumbent on the Crown to lead evidence as to the basis of the police intelligence concerning the man suspected of distributing heroin. In the absence of such, the detention was unlawful, and all evidence of the resultant discovery of drugs was inadmissible. Reference was also made to Lucas v PF Ayr (1980) SCCR Supp 256; Weir v PF Glasgow (1991) SCCR 242; Ireland v PF Cupar (1995) SCCR 685; Stark v PF Glasgow 1997 JC 209; and Houston v PF Greenock 2000 SLT 333.
[5] The sheriff records that the officers gave evidence that a number of factors led to their genuine suspicion at the time. They had reasonably detailed intelligence as to the man in the block of flats. It named the person; identified his address, from which he was understood to be dealing in heroin; and indicated that he had a medical problem. The appellant entered a block of three or four flats, which included that occupied by this man. Less than a minute later she was back on the street. She volunteered that she had been to see him because of his medical condition. However she stayed for a very short period. That was inconsistent with the explanation given for her visit. It was in line with what one would expect of someone purchasing drugs. Such persons tend to leave quickly, partly because of a fear of being caught in possession, and partly out of a desire to use the drugs.
[6] The sheriff had no difficulty in concluding that the officers genuinely suspected that the appellant was in possession of controlled drugs. That finding is not challenged. He also decided that they had reasonable grounds for that suspicion. Under reference to McAughey, he suggested that officers need not be aware of the facts behind every piece of police intelligence. He said:
“It would be impossible for police to implement such a requirement. The nature and source of police intelligence is simply one of a number of factors the court must consider when objectively assessing whether an officer had reasonable grounds for suspicion.”
In the present case there was a named person, an address, and a specified drug said to be in supply. The appellant entered the address and left very shortly thereafter. She said that she had visited the suspected man. The duration of her visit had the hallmarks of a drug deal, particularly heroin. Her explanation was suspicious. The sheriff concluded that there was an objective basis for the officers’ suspicion, and thus the objection to the relevant evidence was repelled.
The submissions for the appellant
[7] In presenting the appeal, Ms McKenzie focussed on the question of whether there were reasonable grounds for the officers’ suspicion. If one excluded the police intelligence, there was nothing suspicious about the appellant’s actings. As to the police intelligence, counsel said that McAughey indicates that the police officers would require to have had the information upon which the intelligence was based in their minds at the time. That information had to be up to date. All of this should be explained in the officers’ evidence. As it was, the sheriff was given no detail as to the basis of the suspicions concerning the alleged dealer. In the case of Ireland, a two month elapse from the date of the relevant intelligence was held to be significant.
[8] In short, it was submitted that the officers needed to confirm in evidence that they had enough factual information to allow them to form a suspicion, including the source of the information, and whether it was historical or contemporaneous. Ms McKenzie accepted that this may cause operational difficulties for the police, but she submitted that the terms of the decision in McAughey were clear. She suggested that use of the Police National Computer should allow sufficient information to be given to officers, even in a fast moving situation.
The submissions for the Crown
[9] For the Crown, the advocate depute observed that, since it had been issued, McAughey was often cited, “but frequently misunderstood.” He accepted that a simple instruction to detain an individual will not do. McAughey did no more than confirm that basic principle. So far as the present case is concerned, the detaining officers relied upon a combination of facts and circumstances, including the suspicious explanation for the visit. The advocate depute had difficulty in reconciling some of the observations in McAughey with the earlier House of Lords decision in O’Hara v The Chief Constable of the RUC [1997] AC 286. If necessary, it might be said that McAughey was “a special decision” based on “unusual facts”.
McAughey v HMA
[10] The question in McAughey concerned the admissibility of the results of a search after a person was detained in terms of section 23. After a hearing on a minute, an objection to the evidence was repelled. The officers were informed that information had been received from the Scottish Crime and Drug Enforcement Agency about a vehicle which was thought to be carrying drugs or drugs related money, and was heading south through their area. A superior officer gave them details regarding the vehicle and told them that the agency wanted it to be stopped and searched on their behalf.
[11] A short time later the officers observed the vehicle on the M74. They followed it and signalled for the driver to pull over. He did so, and an officer informed him that he was being detained under the Act. The judge did not consider that any further information was necessary to allow the detaining officers to have a reasonable suspicion in terms of section 23. For example, there was no need for them to be told the details of a briefing which had been given to other officers earlier that day, nor about a subsequent surveillance operation which had led to suspicion falling upon this particular vehicle. It was enough that the officers were told that members of the agency had come to the view that the vehicle might be involved in the transport of drugs, and that they had been asked to assist in an on-going drugs operation. An appeal was taken against this decision. The appeal was successful.
[12] The appeal court made reference to the cases of O’Hara (cited earlier) and Raissi v The Commissioner of Police of the Metropolis [2009] QB 564; and to a comment made in HMA v PB 2013 SLT 810 : “Someone else’s suspicion based on information which is not shared with the arresting or detaining officer will not do.” In an ex tempore decision the court said that a detaining officer must be given some basis for a request to detain – and that merely to be told that a superior officer entertained suspicions would not advance matters. The appeal was upheld on the basis that the detaining officers were told no more than that it was suspected that a vehicle was carrying drugs, thus they had no “factual information” upon which they themselves could have formed a reasonable suspicion.
Decision on the present appeal
[13] The facts and circumstances in this case are very different from those in McAughey. In our view there is nothing in that decision which justifies any criticism of the sheriff’s decision to allow the officers’ evidence. The present case does not involve an instruction to detain someone. The detaining officers formed their own view on the basis of specific information known to them about the individual in the block of flats. To this can be added the suspicious explanation given by the appellant for her brief visit to the man concerned. We have no difficulty in rejecting Ms MacKenzie’s submission and holding that the officers had reasonable grounds for suspecting that the appellant was involved in a drugs offence. That is sufficient to dispose of the present appeal, but in light of the more general discussion at the hearing, we make the following general observations. This is in the hope that they will dispel any misunderstandings or uncertainties arising from the court’s opinion in McAughey.
Some general observations on reasonable suspicion
[14] The starting point is the decision of the House of Lords in O’Hara, which was the foundation for the decision in McAughey. Lord Steyn was surprised that leave to appeal had been granted in a case which turned on a pure question of fact. The arresting officer had said in evidence that his suspicions were based upon a briefing by a superior officer. He was told that the plaintiff had been involved in a murder. He was ordered to arrest him, and he did so. In the absence of any cross‑examination of the arresting officer, Lord Steyn held that the trial judge was entitled to infer that some further details must have been given in the briefing. His Lordship reached the view that there were reasonable grounds for the arresting officer’s suspicion.
[15] Lord Steyn noted that a point of general principle had emerged during the oral submissions, namely whether an order to arrest given by a superior officer was, in itself, sufficient to afford an arresting officer a reasonable suspicion. In rejecting that proposition, his Lordship emphasised that the arresting officer must have in his own mind sufficient grounds for the arrest. It is not enough that there are good reasons known to a superior officer. The arresting officer must have “some further information” which affords reasonable grounds for his suspicion. The constitutional underpinning for this approach is the independence and individual accountability of the arresting police officer. Lord Steyn summarised certain general propositions about the powers of constables in relation to sections of this general nature.
“(1) In order to have a reasonable suspicion the constable need not have evidence amounting to a prima facie case. Ex hypothesi one is considering a preliminary stage of the investigation and information from an informer or a tip‑off from a member of the public may be enough...
(2) Hearsay information may therefore afford a constable reasonable grounds to arrest. Such information may come from other officers...
(3) The information which causes the constable to be suspicious of the individual must be in existence to the knowledge of the police officer at the time he makes the arrest.
(4) The executive ‘discretion’ to arrest or not...vests in the constable, who is engaged in the decision to arrest or not, and not in his superior officers.”
[16] In his speech, after citing the Scottish cases of Dryburgh v Galt 1981 JC 69 and Copeland v McPherson 1970 SLT 11, Lord Hope of Craighead said:
“For obvious practical reasons police officers must be able to rely upon each other in taking decisions as to whom to arrest or where to search and in what circumstances. The statutory power does not require that the constable who exercises the power must be in possession of all the information which has led to a decision, perhaps taken by others, that the time has come for it to be exercised. 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.” (O’Hara, pages 301/2)
[17] O’Hara made it clear that an arresting officer is not protected if, knowing nothing of the case, he simply follows orders from another officer who does have grounds for arrest. In Dryburgh, a breath test was held to be valid because of information supplied to officers by an anonymous telephone caller. By way of another example, reliance can be placed on a radio call from another officer referring to an anonymous report that an individual on the fourth landing of a block of flats is involved in the misuse of drugs – see Weir v Jessop 1991 SCCR 242. Plainly in these cases it was held that more than a mere order to arrest was involved.
[18] In the context of an order to arrest, what does and what does not amount to sufficient information as will give an arresting officer grounds for a reasonable suspicion, is a matter of fact, circumstance and degree, which will vary from case to case. In McAughey, in effect, it was decided that the evidence did not go beyond a mere order to instruct a detention and search. Thus the case fell within the confines of the point of principle discussed in O’Hara. Subject to the understanding that a simple order to arrest is not enough, in every case the question for the court is whether a reasonable person, in possession of all the information available to the detaining officer, would suspect criminal behaviour. We have no doubt that in the present case this question should be answered in the affirmative, hence the appeal is refused.