SOLEMN SECTION 74 APPEALS BY DANIEL CAFFERKEY AND LAURA FREW AGAINST HER MAJESTY'S ADVOCATE
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 114
HCA/2015/003514/XC
HCA/2015/003515/XC
Lady Paton
Lord Menzies
Lady Clark of Calton
OPINION OF THE COURT
delivered by LADY CLARK OF CALTON
in
SOLEMN SECTION 74 APPEALS
by
DANIEL CAFFERKEY
First Appellant;
and
LAURA FREW
Second Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
First Appellant: M Mackenzie; Faculty Services Ltd, Edinburgh (for Logans, Ayr)
Second Appellant: McCluskey; Faculty Services Ltd, Edinburgh
Respondent: Prentice QC AD; Crown Agent
26 February 2016
[1] The first appellant, Daniel Cafferkey, was charged with various offences including contravention of the Misuse of Drugs Act 1971. During the course of pre-trial proceedings the appellants lodged compatibility minutes in the sheriff court in which they challenged the admissibility of certain evidence on which the prosecution wished to rely. The evidence related to the recovery and inspection of a plastic tub which was found, on opening, to contain tablets. On further investigation the contents of the tub provided an evidential basis to found the charges under the Misuse of Drugs Act. The compatibility minutes alleged breach of the appellants’ convention rights under articles 8 and 6.
[2] Evidence was led at a preliminary hearing on 1 December 2015. The evidence is set out in paragraphs 4 to 11 in the report by the sheriff. There was no challenge to the evidence noted.
[3] In summary, the police attended a road traffic accident involving two vehicles in a collision; the first appellant was within one of the vehicles; he appeared to be under the influence of some intoxicant or substance and was arrested and placed in the police vehicle. Information was given to the police by a civilian witness to the effect that the witness had seen the first appellant leave the vehicle after the collision, remove a tub from the vehicle and deposit that tub amongst nearby bushes. Two police officers retrieved the tub from the bushes and the tub was taken to the police vehicle. The tub was opened and contained a quantity of blue tablets suspected to be Valium.
[4] Evidence from a police officer was to the effect that she did not exercise any statutory power in recovering the tub or on opening it and she did not seek the first appellant’s permission. She considered it was important to establish the contents of the tub which she planned to take to the police station in the police vehicle and to carry out further investigations. As a result of opening the tub and seeing the tablets, a search warrant was obtained to search the home of the first appellant.
[5] The sheriff having considered the evidence made his conclusions about the facts and, having heard submissions, dismissed the minutes on behalf of the appellants.
[6] In this appeal under section 74 of the Criminal Procedure (Scotland) Act 1995, the appellants challenged the decision of the sheriff on the following grounds. The search of the tub was irregular and the irregularity was not such that it could be excused, therefore evidence of the contents of the search of the said tub was inadmissible. As a search warrant was obtained solely on the basis of the discovery of tablets in the tub, the evidence of what was removed from the first appellant’s home was also inadmissible in evidence. Further, as the first appellant’s police interview was based on the said discovery of tablets in the tub and the evidence of what was removed, that interview was also inadmissible. The appellants’ convention rights under articles 8 and 6 were said to be breached and a compatibility issue arose.
[7] In support of the appeal, counsel for the first appellant submitted that the opening and inspection of the tub constituted a search and as there was no consent of the appellant or statutory authority and no warrant, the search was without lawful authority. That vitiated all subsequent procedure and the evidence which flowed from the search was inadmissible. Counsel accepted that the legal framework set out in the sheriff’s note, under reference mainly to Lawrie v Muir 1950 JC 19 and Baxter v Scott 1992 SCCR 342, was not in dispute in this case. She submitted that the present case was distinguishable from Baxter. The sheriff erred because, properly understood, the actions of the police amounted to a search as there was no basis in the evidence which justified the police opening the tub and statutory authority was required. The police should have alternatively sought consent from the appellant. It was clear to the police that the item was linked in some way to the appellant. Counsel did not accept that the sheriff was entitled to draw the inference that the tub was abandoned in the bushes. As this was a search, lawful authority required to be obtained. Counsel for the first appellant did not seek to persuade us that the reference to articles 8 and 6 of the ECHR added any weight to her submissions in relation to the common law and no specific reference was made to the ECHR in oral submission.
[8] We note that in this case the finding of the tub and discovery of the tablets did not involve any search of the first appellant’s person, his car or his home. The police, having been alerted by a civilian witness, investigated the shrubbery in the public area and discovered the tub containing the tablets. In our opinion this did not involve any interference with any of the rights of the first appellant under the ECHR or under common law. It did not amount to a search on the facts as found by the sheriff. The sheriff in this case heard evidence and concluded that the tub was abandoned. There was no evidence from the first appellant that he intended to return to retrieve the tub. In our opinion the sheriff was entitled, on the evidence he heard, to reach the conclusions which he did.
[9] In these circumstances we consider that the reasons given by the sheriff in paragraph 14 of his note for dismissing the minutes are well founded. In any event, even if we were persuaded that there was some irregularity in the recovery of the tub and investigation of its contents, we would apply the approach taken by the Lord Justice General in Lawrie v Muir. We would conclude that the evidence in any event was admissible on the basis that there was no unfairness to the appellants in this case.
[10] For these reasons we refused the appeal by the first appellant.
[11] The second appellant, Laura Frew, was separately represented. Counsel for the second appellant adopted the submissions made by counsel on behalf of the first appellant. He did not seek to expand these submissions. In these circumstances, we consider that no different issue arises in respect of the second appellant’s case. For the same reasons that we have given in relation to the appeal by the first appellant, we refused the appeal by the second appellant.