June 4, 2013
HER MAJESTY’S ADVOCATE against P.B. AND V.W. (http://www.scotcourts.gov.uk/opinions/2013HCJ71.html)
The accused was indicted on three charges of contravening section 4(3)(b) of the Misuse of Drugs Act 1971 (”the 1971 Act”) and one of contravening section 5(2) of the same statute. The prosecution arose from a surveillance operation which took place on 18 November 2011, as a result of which the accused was detained and his vehicle was searched, purportedly under the provisions of section 23(2) of the 1971 Act. The accused lodged two minutes objecting to the admissibility of certain prosecution evidence.
The first minute was lodged in respect of an unlawful search by the police. The accused submits that it was unlawful, not having been authorised in terms of the Regulation of Investigatory Powers (Scotland) Act 2000. In the alternative, he challenges “the observations that the surveillance officer claims to have made and further submits that the observations could not amount to ‘reasonable grounds’ for his detention and search and the search of (his) vehicle in terms of section 23(2) of the Misuse of Drugs Act 1971″.
In the second minute, the accused narrates that police officers interviewed him three times, during the course of the police investigation. His challenge to the admissibility of certain statements which he made during these interviews is made as he was not given the opportunity to consult with a solicitor or, esto, that he had declined access to a solicitor but that the accused was not in a position to waive his right of access to a solicitor as he had not been properly informed of the legal and evidential consequences of doing so.
Detention and Search
On 18 November 2011 Strathclyde Police were carrying out an authorised court surveillance operation which led them to the now accused. The individual they had under surveillance drove to Glenrothes, spoke with the accused through the window of his van and returned to his vehicle before driving off. The officers believed that the individual which they had under surveillance transferred a package of drugs to the accused and the decision was taken to detain the accused under s. 23(2) of the 1971 Act. In order not to compromise the integrity of the covert operation, local uniformed officers were to be instructed to affect the detention.
The opinion of Lord Hope in O’Hara v Chief Constable of the Royal Ulster Constabulary (”O’Hara“) 1997 AC 286 was applied: “the question whether (the information received by the constable) provided reasonable grounds for the suspicion depends on the source of his information and its context seen in the light of the whole surrounding circumstances”. Lord Jones held that the difficulty which the crown faces in this case is that, so far as the evidence disclosed, the source of the Fife constables’ information was unknown to them, as was its context. They had no knowledge of any of the surrounding circumstances. It was held, that the message passed to Sergeant Fleming and Constable MacGregor (the detaining officer) informed them only that someone suspected that there may be a controlled drug in the Ford Transit driven by the accused. It gave them no information as to any factual basis for that suspicion. It was no more than the expression of a conclusion which they themselves might have reached, if they had been given sufficient factual information.
Lord Jones found that the detaining officer had acted on no more than “suspicion by itself” and that they had no factual basis for that suspicion, because none had been reported to them. The accused’s detention was held to be unlawful and the evidence of finding diazepam in the Ford Transit van was inadmissible. Since the detention under s.23 of the 1971 Act was held to be inadmissible it followed that the subsequent detention under s.14 of the 1995 Act and search warrant which was applied for as a result of the accused’s initial detention were also unlawful.
It was noted that the reasons for holding that the detention and search were unlawful were entirely avoidable. If Sergeant Fleming was not given any factual information which might have justified her suspicion that there may well be a controlled drug in the Ford Transit van, that could and should have been done. The question for determination would then have been whether or not such factual information constituted reasonable grounds to suspect that the accused was in possession of a controlled drug. If she was given factual information, she could and should have been called to give evidence, in order that any grounds that she may have had were before the court.
Admissibility of the Interviews
Turning to the challenge to fairness of the interviews, the accused was interviewed on 18, 19 and 20 November 2011. The Solicitor Access Recording Form (SARF) was completed prior to the first interview and the accused confirmed that he did not wish to consult with a solicitor. Prior the second interview the accused was advised that the second interview was to summarise with the accused what was said during the first interview. A second SARF was completed prior to the third interview and the accused replied that he did wish to consult with a solicitor at 10:55hrs. However, at 11:45 hrs it was recorded that the accused waived his right to consult with a solicitor.
In evidence the accused testified that he waived his right to a solicitor only because he was concerned about his partner and he wished to have his interviews concluded as quickly as possible in the hope that that might speed his release and return to her. In relation to the third interview the accused chose to waive his right, after initially requesting a solicitor, because he did not wish to wait for his nominated solicitor to arrive and he had no confidence in the duty solicitor as he believed him to be appointed by the police.
Lord Jones held that the statement of the accused that he did not wish to exercise is right to consult with a solicitor was unequivocal. From the recording of this first interview it was clear that he understood what the right was and that he wished to waive it. Throughout the first interview, the accused appeared calm and relaxed and demonstrated no anxiety or desire “to get the interview over with”. Nor did the accused give any indication that the waiver of his right to consult with a solicitor was in order that he might exclude his wife from the enquiries as soon as possible. In these circumstances, it was not possible to accept that his waiver of the right to do so before the first interview was not voluntary, not informed or not unequivocal.
In respect of the third interview the accused’s reason for waiving his right was untenable, given that he had been told, in terms, that “any solicitor contacted will be independent of the police.” In respect of both interviews it was held that the accused waived his right to consult with a solicitor and that such waiver was voluntary, informed and unequivocal. Accordingly, the interviews were fair.