Lee Dunsire v. Her Majesty’s Advocate [2017] HCJAC 30

Appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- The appellant was indicted to Glasgow High Court in relation to drugs offences. The appellant objected to the admissibility of the contents of a police interview conducted on 23 June 2015. The preliminary hearing judge refused the minute and it is against that decision that the appellant appealed. The circumstances were that the appellant, and others, including his brother, were made subject of an authority under the Regulation of Investigatory Powers (Scotland) Act 2000 in relation to a surveillance operation into organised crime. As a result of information gathered during the course of the surveillance operation, search warrants were obtained by the police under section 23 of the Misuse of Drugs 1971 Act in relation to each brother’s house and these search warrants were executed. Various items of evidential value were recovered during the course of the search of the appellant’s premises including mobile phones and a quantity of diamorphine. The appellant was then detained under section 14 of the Criminal Procedure (Scotland) Act 1995 and taken to a police station and interviewed to which the appellant made no admissions and he was released without being arrested or charged. The mobile phones recovered were subsequently sent for forensic examination which disclosed information appearing to relate to drug transactions, including amphetamine. On 23 June 2015 the appellant attended Kirkcaldy police station voluntarily. He was detained again on the basis of the information recovered from the mobile phones. The appellant challenged the lawfulness of his second detention in order to have the telephone data ruled inadmissible. At the hearing of the minute objecting to the admissibility of the evidence it was submitted that the second detention was prohibited by section 14(3) of the Criminal Procedure (Scotland) Act 1995 which 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.” The preliminary hearing judge refused the minute and the appellant appealed. It was submitted on behalf of the appellant that, whilst it was now accepted that the analysis of the contents of the mobile phones were admissible, 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). It was submitted that the second detention of the appellant in June 2015 was illegal because it was on the same grounds as his earlier detention. It was submitted the phones were seized in March 2015 in relation to suspected drugs offences and the information retrieved in the subsequent forensic interrogation of the phones also related to suspected drugs offences so the grounds of detention were substantially the same. On behalf of the Crown it was submitted that the appellant’s interview in March 2015 was largely focused on the items recovered from his address, including the diamorphine, and it was only following the retrieval of the further information from the mobile phones that the police formed the reasonable belief that the appellant might be concerned in the supply of amphetamine. Here the court refused the appeal. The court referred to the single judge case of HMA v Mowat 2001 SLT 738 where, in relation to the subsection 3 prohibition, the court stated:- “[it]...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.” Here the court considered that the second detention in June 2015 could not be said to be on the same grounds as the detention in March 2015 as, in March 2015, the police did not have grounds for suspecting the appellant was involved in drugs offences relating to amphetamine.