Carol McCrone v. His Majesty’s Advocate [2024] HCJAC 5

Note of appeal under section 74(1) of the Criminal Procedure (Scotland) Act 1995:- The appellant was indicted to the sheriff court in relation to an alleged contravention of section 4(3)(b) of the Misuse of Drugs Act 1971. A minute objecting to the admissibility of evidence was taken in relation to the alleged unlawful detention procedure under section 23 of the 1971 Act and the subsequent recovery of a quantity of controlled drugs. It was contended that the ‘detaining’ police officers had no direct knowledge of the intelligence available to other officers (under reference to McAughey v. H.M.A. 2014 SCCR 11) and, as such, the subsequent recovery of drugs was inadmissible. The sheriff repelled the objection. The sheriff considered that the police officers had not in fact detained the appellant but, rather, had stopped her as part of a routine procedure under sections 163 and 164 of the Road Traffic Act 1988 to check her identity and to check her driving licence, all of which the appellant had complied voluntarily with. It had been about a minute later, when an unmarked police car attended and the officers who had provided the original intelligence about the controlled drugs who 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. The appellant appealed against the decision of the sheriff. It was submitted on behalf of the appellant that the sheriff had erred in concluding that the appellant had not been detained, that the detention had been irregular and the police did not provide accurate reasons for stopping her with the original intelligence being insufficient to justify the police officers from stopping the appellant. On behalf of the Crown it was submitted that the police who had initially stopped the appellant’s car, who were in uniform, had been entitled to stop the appellant whilst driving under section 163 of the Road Traffic Act 1988. It was further submitted, under reference to K.B. v. H.M.A. 2015 S.C.C.R. 101, that even if the search was irregular, it may be excusable. Here the court refused the appeal. The court noted that the situation which arose in the case often occurs, namely, that police officers, often in plain clothes in an unmarked police vehicle are in receipt of intelligence that controlled drugs are within a motor vehicle travelling on a road and request uniformed officers in a marked police vehicle to stop the suspect car pending the other officers’ attendance. The court reiterated that whether a person has been detained in terms of section 23 will primarily be a question of fact for the court at first instance which decision can only be challenged where the court had erred in law or in its assessment of the relevant circumstances. In the present case the sheriff at first instance considered that the traffic officers stopped the appellant under their powers under sections 163 and 164 of the 1988 Act and the fact that they had been told that it was suspected that the car was carrying drugs did not remove their powers to stop the vehicle for a routine check and it was the plain clothes police officers in the unmarked police car who had detained the appellant as they had reasonable grounds under section 23 of the 1971 Act to do so.