Description
Appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- The appellant has been indicted to the High Court, along with six others, on a charge of concealing, transferring, and attempting to remove from Scotland criminal property within the meaning of the Proceeds of Crime Act 2002 contrary to section 327(1)(d) and (e). The appellant raised a preliminary issue objecting to the admissibility of the results of a search of the vehicle driven by him on 9 November 2010 contending that the officers who detained him and searched the vehicle, whilst purporting to act in terms of section 23 of the Misuse of Drugs Act 1971, did not have reasonable grounds to suspect that he was in possession of a controlled drug and consequently both his detention and the subsequent search were unlawful. Following a hearing on the objection the judge repelled the objection and the appellant appealed under section 74. The circumstances were that the vehicle was stopped by the detaining officer on the instruction of a superior officer from the Scottish Crime and Drug Enforcement Agency who suspected that the vehicle was carrying drugs and money, but he was given no factual information on which he could form his own view. Section 23(2) of the Misuse of Drugs Act 1971 provides:- "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 a search which appears to the constable to be evidence of an offence under this Act." The key issue here was what was in the mind of the detaining officer when the power was exercised as the detaining officer must have formed a genuine suspicion in his own mind that the person was in possession of a controlled drug. In the present case no information was given to the detaining officer upon which he could form a view as to whether he had reasonable grounds to so suspect. Here the court allowed the appeal as there was an insufficient basis for any suspicion formed by the detaining officer and the objection to the admissibility of the evidence was well founded.
0141 553 4890
