Pradeep Bhowmick v. Her Majesty’s Advocate [2018] HCJAC 6

Note of appeal against conviction:- On 21 September 2016, following a trial at the High Court, the appellant and his co-accused James Quinn, was found guilty of a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971, being concerned in the supply of a controlled drug, namely, cocaine. The appellant appealed against his conviction on the ground that the trial judge had erred in repelling an objection challenging the admissibility of evidence relating to the recovery of the appellant’s mobile phone and its forensic interrogation which disclosed incriminating material against him. The appellant died on 24 March 2017 and as a consequence of an order being made under section 303A of the Criminal Procedure (Scotland) Act 1995 the appellant’s brother and sister were authorised to continue the appeal. The circumstances were that during the course of the trial objection was taken for the first time in relation to the recovery of the appellant’s mobile phone. It was contended that the detaining officers did not, under section 23 of the 1971 Act, have reasonable grounds to suspect that the appellant was in possession of a controlled drug and, as such, his subsequent detention under that statutory provision was unlawful and the subsequent recovery of his mobile phone during the course of a later search was also unlawful. Despite the objection not having been raised as a preliminary issue in advance of trial in terms of section 79 of the 1995 Act the trial judge allowed the objection to be raised. The trial judge agreed with the submissions made on behalf of the appellant that the appellant had been unlawfully detained as the Crown had failed to demonstrate that the detaining officer had reasonable grounds to suspect that the appellant was in possession of a controlled drug. However, the trial judge concluded that the property which had been searched was a crime scene and as the situation was an urgent one the police were entitled to preserve the scene which included seizing the mobile telephone and allowed the evidence of the recovery of the phone and its subsequent interrogation to be admitted. During the course of the appeal the court raised with parties the issue of whether the trial judge had been correct to allow the objection to be taken during the course of the trial despite the failure by the defence to raise the objection timeously. Here it was accepted by counsel for the appellant that even if the judge had erred in repelling the objection, in the event it was decided the trial judge should not have heard the objection in the first place then a miscarriage of justice had not occurred. On behalf of the Crown it was submitted that the trial judge had disregarded the statutory provisions relating to the raising of objections to the admissibility of evidence and even if the ground of appeal was well founded it could not be said that a miscarriage of justice had occurred. The trial judge in her report to the court referred to the cases of Wade and Coates v HMA [2014] HCJAC 88 and Murphy v HMA 2013 JC 60 and considered that an accused’s right to a fair trial may be adversely affected in the event that an objection not timeously raised was not considered. Here the court refused the appeal without considering the merits of the ground of appeal itself. The court concluded that the trial judge had afforded the appellant an opportunity to object when she had no power to do so. The court considered that the trial judge had failed to apply the statutory provisions relating to the raising of objections against the admissibility of evidence and in the particular circumstances of the case the objection should not have been allowed to be raised when it was. There was no information upon which the trial judge could conclude that the objection could not reasonably have been raised earlier and there is no other dispensing provision attached to the mandatory requirement provided for by section 79A(4). In relation to the issue of whether an accused may be denied a fair trial by the refusal to allow such an objection to be raised at such a late stage the court observed that the question of a fair trial relates to the proceedings as a whole and the defence through the disclosure regime are granted ample time to comply with the time limits specified in the 1995 Act and ensure compliance with the High Court of Justiciary Practice Note No 1 of 2005. The court reiterated that in relation to the assessment of whether trial proceedings are unfair it is inappropriate to examine any single factor in isolation.