Veronica Logan v. Her Majesty’s Advocate [2020] HCJAC 10

Note of appeal against conviction:- On 23 September 2019, at Falkirk Sheriff Court, the appellant was convicted after trial on indictment of three charges of being concerned in the supply of drugs (Etizolam, Diamorphine and Amphetamine) contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. The evidence against the appellant included the recovery of drugs from her flat at 22 Douglas Street Bannockburn on 4 February 2019. In advance of the trial the appellant objected to the admissibility of that evidence under section 71(2) of the Criminal Procedure (Scotland) Act 1995. Following the leading of evidence from 4 police officers, the appellant and a joint minute the sheriff refused the minute and refused the appellant’s motion for leave to appeal. At the trial the only evidence led was in the form of a joint minute of agreement which set out that the drugs were recovered from the appellant’s property in the course of a search carried out under warrant on 4 February 2019. The joint minute having been read the sheriff directed the jury that they were required to find the appellant guilty which they did. The appellant appealed against her conviction on the grounds that the sheriff was wrong to refuse the preliminary issue minute objecting to the admissibility of the recovery of the drugs on 4 February 2019. The circumstances were that, on 27 January 2019, an anonymous call was made by a male caller to police Scotland informing them that a female by the name of ‘Veronica’ at the locus had been coerced into holding controlled drugs within her flat. Senior police officers considered that the source of information was insufficiently reliable to request the procurator fiscal to seek a search warrant and police officers subsequently attended at the locus to inquire as to the appellant’s welfare and if she was being coerced into criminality against her will. The appellant stated to the police officers that she was not being coerced into storing drugs. However, the appellant became upset and teary and one of the officers stated:- “I’m getting the impression you want to tell us something, are you being coerced into storing drugs?” At which point the appellant said she had two bags while pulling the cover off two bags on the floor and lifting them up onto the bed revealing to the police officers that they contained white tablets. The police thereafter arrested her and obtained a search warrant and the recovery of the drugs took place. It was submitted on behalf of the appellant that the sheriff erred in refusing to uphold the preliminary issue minute in that the comments made by the appellant and the evidence recovered as a result of what she said were inadmissible. It was submitted that the evidence which the sheriff accepted made clear that the appellant was suspected of being involved in criminal activity by the police prior to their arrival at her home and, as such, she ought to have been cautioned before the police asked her any questions. It was clear that the police did not accept her initial denial and probed further. It was further submitted that the police officers deliberately misled the appellant as to the purpose of their questions. On behalf of the Crown it was submitted that there was no unfairness to the appellant in admitting the evidence in that the appellant was not under suspicion when the police attended. It was submitted that by virtue of section 20 of the Police and Fire Reform (Scotland) Act 2012 the police officers had a duty to protect life and property. Here the court allowed the appeal. The court observed that powers of detention and search may be exercised on the basis of suspicion emanating from an informer or a tipoff from a member of the public and it will be a matter for the police to decide whether such information is sufficient to request a search warrant. In the present case there was an e-mail exchange between senior officers following the anonymous call which made reference to the need to visit the locus and “test the intel”. The court considered that the sheriff’s approach to view the police officers’ attendance and conduct as the preliminary stage of the investigation entitling them to ask questions without administering a caution was wrong. The court considered that the sheriff had given insufficient weight to the actual questions which the officers had asked the appellant. The Crown maintained here that the appellant was not a suspect, however, the court disagreed. Referring to Gilroy v HMA 2013 JC 163, the court reiterated that normally where a suspect is questioned by the police then any questions should be preceded by a caution. The court considered that the police did not characterise the appellant as a witness as there were two aspects to their interest in speaking to her:- (1) to test the intelligence received that she was in possession of a quantity of drugs; and (2) to enquire after her welfare by ascertaining if she was being coerced into criminality against her will, both of which would point to the appellant being suspected of being engaged in criminal activity and thus requiring a caution to be administered before she was questioned. In these circumstances the failure to administer a caution and the encouragement given to her to respond to the questions being asked of her resulted in unfairness which ought to have resulted in the sheriff sustaining the objection to the admissibility of evidence. It was conceded by the Crown that if the evidence was wrongly admitted by the sheriff there was no other available evidence against the appellant and the court quashed the appellant’s conviction.