Robert Borland v. Her Majesty’s Advocate [2015] HCJAC 95

Appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- The appellant had objected to the admissibility of certain evidence obtained during a search carried out under section 23 of the Misuse of Drugs Act 1971 by way of a preliminary issue minute. The trial judge repelled the objection and the appellant sought leave to appeal, which was granted, and he appealed against that decision. The circumstances were that the appellant’s car was stopped and he was alone in it. The search of the car was carried out later at a police office and revealed 500g of diamorphine hidden in the central console. The judge at first instance heard evidence in relation to a large scale police operation. The investigating team were privy to intelligence about the car and the appellant being the driver. DS McKay telephoned the detaining officer, PC Gillies, and advised him of certain information relating to the vehicle, the appellant and that he had information that there were controlled drugs in the car. PC Gillies and a colleague thereafter stopped the car and detained the appellant in terms of section 23 resulting in the car being searched and to the recovery of the drugs. At the appeal hearing it was submitted on behalf of the appellant that the detaining officers had insufficient information to detain the appellant and reliance was placed on the cases of McGaughey v HMA 2014 SCCR 11 and HMA v B [2013] HCJ 71. It was further submitted that the irregularity could not be excused on the basis of Lawrie v Muir 1950 JC 19. On behalf of the Crown it was submitted that if the court viewed the search as irregular on the basis of the decision in McGaughey then the irregularity ought to be excused. Here the court considered the key issue as to whether or not PC Gillies was in possession of sufficient information to provide him with reasonable grounds to suspect that there were controlled drugs in the car. The court noted that in relation to such maters each case will turn on it’s own facts and circumstances. The court considered here that the circumstances were different to those in McGaughey in which a reasonable suspicion could not be created in the mind of a detaining officer merely on the basis of an instruction to detain from a fellow officer. The court refused the appeal and did so not on the basis of excusing an irregular search but by holding that the search was not irregular in the first place. In the present case the detaining officer had information conveyed to him directly from a detective engaged in an on-going surveillance operation and that information was that drugs were not just suspected to be in the car but that they actually were in the car. Whilst the court affirmed that it is necessary for the detaining officer to have his own reasonable suspicion that could come from hearsay information passed to the detaining officer from another officer.