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APPEAL UNDER SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 BY LEE DUNSIRE AGAINST HER MAJESTY'S ADVCOATE


Submitted: 09 November 2017

Web Blue HCJ

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 30

HCA/2016/000479/XC

Lord Menzies

Lady Clark of Calton

Lord Turnbull

OPINION OF THE COURT

delivered by LORD MENZIES

in

APPEAL UNDER SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995

by

LEE DUNSIRE

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant:  Johnston (sol adv);  McKennas

Respondent:  Farquharson AD;  Crown Agent

9 November 2016

[1]        In this appeal under section 74 of the Criminal Procedure (Scotland) Act 1995, the appellant appeals against a decision of the preliminary hearing judge to refuse a preliminary issue Minute dated 2 June 2016 and date stamped 27 July 2016, which objected to the admissibility of evidence of the appellant’s police interview in the course of his detention on 23 June 2015.

[2]        We take the following background from the Opinion of the preliminary hearing judge which is date stamped 29 August 2016 and which is in substantially the same terms as his Report to this court date stamped 12 October 2016.

“[1]      The minuter is charged with being concerned in the supply of controlled drugs, contrary to section 4(3) of the Misuse of Drugs Act 1971.  There are several co-accused.  The trial is due to begin in February 2017.

 

[2]        The charges arose in this manner.  The police obtained authority under the Regulation of Investigatory Powers Act 2000 to carry out a surveillance operation into organised crime.  They targeted various individuals, including the minuter and his brother, Robert Dunsire.

 

[3]        As a result of information gathered during the course of that operation, the police obtained search warrants under section 23 of the Misuse of Drugs 1971 Act. They executed them at each brother’s house.

 

[4]        From the minuter’s property they recovered: (a) small quantities of two types of controlled drugs, (b) a set of digital scales, (c) a piece of paper with notations, (d) £140 in cash, and (e) four mobile telephones. From Robert Dunsire’s property they recovered 6 kilos of amphetamines.

 

[5]        Each man was then taken to a police station, formally detained and interviewed. The police questioned the minuter about his involvement in drugs transactions. He made no admissions. At the end of his interview, the police released him without arrest or charge.

 

[6]        The police sent the four mobile telephones for examination and analysis by specialists at the E-Crime unit. They downloaded the data from the mobile phones and put it on a disc. Some information appeared to relate to drugs transactions.

 

[7]        The minuter attended Kirkcaldy police station by arrangement on 23 June 2015. He was again detained, this time on the basis of the information contained on the E-Crime unit disc. He now challenges the lawfulness of that detention, in order to have the telephone data ruled inadmissible.

 

[8]        The parties agreed all the formal steps of the procedure by way of a joint minute. At an evidential hearing on 22 August 2016, I heard evidence from DC Hobbs and DC MacDonald. They respectively detained the minuter on the first and second occasions. Following submissions, I refused to grant the order sought in the Minute.

 

[9]        The testimony was in short compass. I shall mention only two points. First, DC Hobbs said that the four mobile telephones reinforced his suspicion that the minuter was involved in drugs transactions, because dealers commonly buy, use and discard such handsets.  Secondly, prior to 23 June 2015 DC MacDonald knew about the surveillance operation, the searches, and the earlier detention.

 

[10]      On behalf of the minuter, Ms Johnston submitted that the second detention was prohibited by section 14(3) of the Criminal Procedure (Scotland) Act 1995.  It provides:

 

“Where a person has been released at the end of a period of detention, he shall not … thereafter be detained … on the same grounds or on any grounds arising out of the same circumstances.”

 

[11]      Ms Johnston argued that the section meant that re-detention was only available where there was fresh evidence, such as a new witness.  That was not the case here.  The police suspected the minuter of involvement in drugs when they obtained the section 23 warrant.  Their suspicion deepened on 23 March when they recovered the four mobiles, and hardened further when they received the E-Crime unit disc.  The advocate depute contended that section 14(3) did not apply.  Both sides referred to HM Advocate v Mowat 2001 SLT 738.”

 

[3]          The preliminary hearing judge gave his reasoning in relatively short compass at paragraph 12 to 14 of his Opinion as follows:

[12]    I start with the central fact.  The data downloaded from the phones was new material.  It was not available to the officers in March.  Accordingly, DC MacDonald did not detain the minuter on the same grounds.

 

[13]      The question is whether the detention was on grounds arising out of the same circumstances.  Ms Johnston’s approach is too narrow.  While the reasons for suspecting the minuter increased at each stage, they were not on a continuum.  The receipt of the information on the disc constituted a material change of circumstances.  The altered factual matrix entitled the police to detain the minuter on 23 June.

 

[14]      I make this observation.  If any test results reported to the police after a detention were not capable of justifying a further detention, that could yield an unfortunate result for suspects.  The police would have to arrest and charge, rather than detain and question.”

 

[4]          The submissions by Ms Johnston on behalf of the appellant to this court, reflected the submission made to the preliminary hearing judge although she departed from the terms of the preliminary issue minute in which it was submitted:

 “that the mobile phones were not lawfully seized under the warrant granted.  It is submitted that the mobile phones were not lawfully interrogated during the period of the accused’s detention and that therefore no other power authorised the detention and interrogation of the mobile phones.  Accordingly it is submitted that all of the evidence pertaining to the two relevant mobile phone numbers is inadmissible”.

 

Before this court, Ms Johnston accepted that evidence as to the analysis of the contents of the mobile phones was admissible.  However, she maintained her position that the contents of the appellant’s interview on 23 June 2015 were inadmissible as the interview occurred during a purported detention under section 14 of the Criminal Procedure (Scotland) Act 1995 which was illegal because of the terms of section 14(3).

[5]          Section 14(1) and (3) of the 1995 Act are in the following terms:

14      Detention and questioning at police station.

 

(1)        Where a constable has reasonable grounds for suspecting that a person has committed or is committing an offence punishable by imprisonment, the constable may, for the purpose of facilitating the carrying out of investigations—

 

(a)        into the offence;  and

(b)        as to whether criminal proceedings should be instigated against the person,

 

detain that person and take him as quickly as is reasonably practicable to a police station or other premises and may thereafter for that purpose take him to any other place and, subject to the following provisions of this section, the detention may continue at the police station or, as the case may be, the other premises or place.

 

...

 

(3)        Where a person has been released at the termination of a period of detention under subsection (1) above he shall not thereafter be detained, under that subsection, on the same grounds or on any grounds arising out of the same circumstances”

 

[6]          Ms Johnston submitted that the second detention of the appellant in June 2015 was illegal because it was on the same grounds as his earlier detention in March 2015.  Having originally detained the appellant in terms of section 23 of the Misuse of Drugs Act 1971, the police officers recovered certain items from his flat and then detained him under section 14 of the Criminal Procedure (Scotland) Act 1995.  They seized his mobile phones because they suspected them to be documents which may contain data relating to drugs transactions.  Their grounds for his detention were that the four mobile phones were suspected to have data on them relating to drugs transactions.  This she submitted was substantially the same ground as the ground for his second detention in June 2015 namely that the mobile phones contained data which it was suspected related to drugs transactions.  On each occasion the ground for the appellant’s detention was that he was suspected of being concerned in the supply of drugs.

[7]          In response, the advocate depute submitted that the second detention was not struck at by section 14(3) of the 1995 Act.  The material evidence on which the police formed their reasonable suspicion in March 2015 was based on their finding the following items in the appellant’s flat:

  • a set of digital scales;
  • a quantity of money;
  • a number of mobile phones (in which respect the number was the cause of the suspicion, not the content, which was not at that time known to the police);
  • a quantity of diamorphine;
  • a quantity of cannabis.

[8]        The advocate depute submitted that the appellant’s interview in March 2015 was focused on these matters and that the possibility of the appellant being concerned in the supply of amphetamine was not explored nor even touched on in that interview.  It was only after analysis of the contents of the mobile phones and in particular text messages stored on them which might relate to the supply of amphetamine that the police formed the reasonable belief that the appellant might be concerned in the supply of amphetamine.  This was a different ground for suspicion and related to different circumstances.  We were referred in the course of submissions to two authorities, first, Pervez v HM Advocate 2007 JC 89 in which in the particular circumstances of that case, the court made the following observation at paragraph 13 of its Opinion:

“It matters not to our mind that it was under the general umbrella of an investigation into an attempt to pervert the course of justice.  It equally matters, not if it is the case, that both suspicions were in the mind of the police when they commenced the detention process.  They have a right to detain a person for six hours in relation to an alleged offence and re-detention is only struck at if an attempt is made to re-run that initial interview in the same context.”

 

Second, we were referred to HM Advocate v Mowat 2001 SLT 738, a single judge decision of Lord Osborne particularly at paragraphs 37 and 38. 

[9]        We are not inclined to place much weight on the observations in Pervez in the context of the arguments advanced before us today because that decision turned very much on the particular facts and circumstances of that case, which were very different from those before us today.  However, we have found assistance in the approach taken in Mowat which we consider to be the correct approach to the issue raised in this appeal and which we endorse.  At paragraph 37, Lord Osborne observed:

“It appears to me that the first of these arguments requires the court at the outset to reach a correct interpretation of the terms of section 14(3) of the Act of 1995 in its statutory context.  That sub-section provides as follows [his Lordship quoted its terms and continued]:  ‘Thus the prohibition is against any further detention order under subsection (1) “on the same grounds or any grounds arising out of the same circumstances” as were involved in the previous detention.  It will be obvious from my narrative of the arguments advanced that no authority was placed before me elucidating the precise scope of the words of the subsection.  In these circumstances it is necessary to consider those words themselves in their statutory context.  It appears to me that the words “the same grounds” in subsection 3 must refer to the “reasonable grounds for suspecting that the person has committed or is committing an offence punishable by imprisonment” referred to in subsection 1.  In the context of an actual detention, those grounds, I consider, must exist in relation to the particular offence suspected as having been, or being committed.  Thus the first basis for the subsection 3 prohibition, it seems to me, must raise the question of whether a later detention involved those same grounds, namely grounds for suspecting that the same particular offence had been, or was being committed, as had been involved in an earlier one.’ ”

 

At paragraph 38 he went on to consider the second branch of sub-section 3 as follows:

“In these circumstances, in the course of the argument before me attention came to be focused upon the second basis for the subsection 3 prohibition, enshrined in the words ‘or on any ground arising out of the same circumstances’.  In my opinion, having regard to the context the ‘circumstances’ referred to in that part of subsection 3 must be those circumstances on the basis of which the constable referred to in subsection 1 had formed the view that he had ‘reasonable grounds for suspecting that the person had or was committing the offence’ and had therefore initiated a detention.  Ex hypothesi those circumstances must have been in existence at the latest immediately before the initiation of the detention.”

 

[10]      Applying this approach to the facts of the present case, we are satisfied that the second detention of the appellant, ie that in June 2015, cannot be said to be on the same grounds as the first detention in March 2015.  The officers did not have as their grounds for suspecting the appellant at the first detention, the contents of the phones and in particular the texts which might relate to the supply of amphetamine, because they were not aware of this content and had not seen these texts.  Similarly it cannot be said that the second detention was on any grounds arising out of the same circumstances because those circumstances, ie the knowledge of the contents of the phones and the texts which might relate to the supply of amphetamine, were not in existence immediately before the initiation of the first detention.

[11]      For these reasons, we are unable to detect any error of law in the reasoning of the preliminary hearing judge.  We do not consider that the second detention of the appellant in June 2015 was illegal by reason of the provisions of section 14(3) of the 1995 Act.  We shall therefore refuse this appeal.