Daniel Cafferkey and Laura Frew v. Her Majesty’s Advocate [2016] HCJAC 114

Appeals under section 74 of the Criminal Procedure (Scotland) Act 1995:- The appellants had lodged compatibility minutes in advance of trial in relation to alleged breach of the appellants’ convention rights under articles 8 and 6 and common law minutes objecting to the admissibility of evidence. The circumstances were that the appellants had been indicted in relation to various contraventions of the Misuse of Drugs Act 1971 after the police attended a road traffic accident involving two cars which had collided. The first appellant was in one of the vehicles and appeared to the police officers to be under the influence of some substance and was arrested and placed in the police vehicle. The police witnesses received information from a civilian witness that the witness had seen the first appellant remove a tub from the vehicle and deposit the tub amongst nearby bushes before the police had arrived. Two police officers retrieved the tub from the bushes and opened it and saw that it contained a quantity of blue tablets suspected to be Valium. As a result of opening the tub and seeing the tablets, a search warrant was obtained to search the home of the first appellant. Minutes objecting to the admissibility of the recovery of the drugs were lodged and the issue was debated before a sheriff in advance of trial. It was contended on behalf of the first appellant that the search of the tub was illegal. The sheriff dismissed the minutes lodged on behalf of the appellants and they appealed against that decision. Here it was submitted on behalf of the appellants that the opening and inspection of the tub constituted a search and as there was no consent from the first appellant or statutory authority and no warrant, the search was without lawful authority and the evidence which flowed from the search was inadmissible. It was submitted that the sheriff had erred because the actions of the police amounted to a search as there was no basis in the evidence which justified the police opening the tub and statutory authority was required or alternatively the consent of the first appellant was required. Here the court refused the appeal. The court considered that the finding of the tub and recovery of the tablets did not involve any search of the first appellant’s person, his car or his home and on the facts as found by the sheriff did not amount to a search. The court considered that the sheriff was entitled to draw the inference that the tub was abandoned in the bushes and there was no evidence from the first appellant that he intended to return to retrieve the tub. The court went on to state that in the event that they had decided there was some irregularity present in the recovery of the tub and its contents the court would have applied Lawrie v Muir 1950 JC 19 in favour of the Crown.