|
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Osborne
Lord Macfadyen
Lord Johnston
|
[2007] HCJAC56
Appeal No: XJ195/07
OPINION OF THE COURT
delivered by LORD OSBORNE
in
CROWN STATED CASE
by
PROCURATOR FISCAL,
DUMBARTON
Appellant;
against
SEAN JAMIESON
Respondent:
_______
|
Act: Stewart, A.D.; Crown Agent
Alt: Keenan,
Solicitor/Advocate; Croziers
20 September 2007
The background circumstances
[1] The respondent
was charged on summary complaint by the appellant that:
"(1) on 5 March 2006 at Balloch Road, Balloch, being a
public place you Sean Jamieson did have with you an article to which section 49
of the aftermentioned Act applies, namely a
knife; CONTRARY to the Criminal Law
(Consolidation) (Scotland) Act 1995, section 49(1)".
The respondent pled not guilty to the charge and, after
sundry procedure, the case called before the sheriff at Dumbarton Sheriff Court for trial on 15
December 2006. The respondent was present and was
represented by Mr Crozier, Solicitor, Dumbarton. The appellant's Depute provided a list of
Crown witnesses indicating that the Crown intended to call two police officers
to give evidence for the Crown. The
appellant's Depute called the first Crown witness on that list, namely
P.C. David Taylor, a serving officer with Strathclyde Police having 5
years police service.
[2] P.C. David
Taylor gave evidence that he had been on duty on 5 March
2006 and
that he had attended at the Golden Star, a take-away restaurant in Balloch, at around 10.45pm.
He said that his attention had been attracted to two male persons seated
in the take-away area of the restaurant.
He identified the respondent as one of the male persons he had seen on
the evening in question. P.C.Taylor said that the respondent was heavily intoxicated
at the time and was shouting and swearing at the other person, as well as at
passers by. He said that he asked the
respondent to step outside the restaurant so that he could have a word with
him, with a view to calming him down. He
said that he had noticed the manner in which the respondent had stood up. He said that the respondent had stood up as
if something was wrong, or as if he had something concealed. P.C. Taylor said that he noticed something
bulging out from the waist area of the respondent's jacket. P.C. Taylor volunteered that he had "no idea
what it was at that time". He said
however that he noticed an object which was not part of the respondent's
body.
[3] Under further
questioning by the appellant's Depute, this witness said that the respondent
had had a bump in his clothing. When
asked if he could give a better description, the witness said that the
respondent had had something sticking out and he then demonstrated the kind of
shape by pulling an article of his clothing over a small section of the top of
his police truncheon. The witness went
on to say that he suspected that the respondent might have been in possession
of an offensive weapon. The witness
stated that his grounds for this were the way in which the respondent had got
up from a seated position in the restaurant, which the witness described as
"gingerly", and because the witness had seen an item protruding from the
respondent's clothing, although the witness said that he had had no idea then
what the item was. The witness stated
that these factors had given him concern that the respondent might be carrying
something. When asked by the appellant's
Depute what that might be, the witness said that he considered that it was an
item that should not have been there.
[4] The solicitor
for the respondent objected to the Crown's line of questioning at this
point. However, the sheriff allowed the
appellant's Depute to ask further questions of the witness, on the basis that
the witness had given evidence that he had seen something protruding and it had
appeared to the sheriff that the Crown was entitled to explore that issue
further with the witness.
[5] On being
asked to elaborate on what he had seen and why that might have given reasonable
grounds for suspecting that the respondent had been carrying an offensive
weapon, the witness reiterated that he had seen something protruding through
the respondent's clothing, that it had been two or three inches long and that
he did not normally expect to see items protruding "at the waistband, above the
genitalia area". The witness said that
therefore he had been suspicious that the respondent might have been in
possession of an offensive weapon. The
witness said that he had then informed the respondent that he would be searched
in terms of section 48 of the Criminal Law (Consolidation) (Scotland) Act
1995, "the 1995 Act".
[6] At that stage
in the leading of evidence, the solicitor for the respondent had intimated that
he had an objection to the admissibility of any evidence which the Crown
proposed to obtain from the witness in respect of the results of the search
which had been conducted. The sheriff
then proceeded to deal with that objection by hearing submissions upon it from
Mr Crozier on behalf of the respondent and from the
appellant's Depute. The details of those
submissions are set forth in the stated case.
[7] The sheriff
indicates in the stated case that, having heard and considered the evidence led
and the submissions made in relation to the objection, he was not satisfied
that the terms of the statutory test set out in section 48(1) of the 1995 Act
had been met. He concluded that the
evidence of the results of the search carried out in terms of that section were
inadmissible in evidence. The
appellant's Depute then led no further evidence and the respondent was
acquitted. In elaborating the reasons
for his decision, the sheriff gives a summary of the evidence given by
P.C. Taylor in the stated case.
Having done so, the sheriff states that he considered that the objection
made by the defence agent was well founded and that the "bump" under the
respondent's clothing could have been caused by any number of items. He indicates that, having had regard to the statutory
test, he did not consider that the police officer had had reasonable grounds
for suspecting that the respondent had been carrying an offensive weapon. He observes that the shape demonstrated by
the witness could have been any number of items and that the officer did not
say in evidence that it resembled a weapon, nor that he had received any
information from any other source that the respondent might be carrying a
weapon.
[8] Following the
sheriff's decision, at the request of the appellant, he has stated a case for
the Opinion of this Court in which two questions are posed. These are: (1) Was I entitled to uphold
the objection by the solicitor for the respondent to the evidence which the
Crown intended to lead from the police officer regarding what the police
officer recovered from the respondent following a search of the respondent in
terms of section 48(1) of the Criminal Law (Consolidation) (Scotland) Act
1995? (2) Was I entitled to
disallow the evidence of the results of the said search on the basis that the
police officer had no reasonable grounds for suspecting the respondent was
carrying an offensive weapon?
Submissions
[9] The Advocate depute,
in supporting the appeal, submitted that the sheriff had adopted too stringent
a test in making his decision on the respondent's objection. Section 48(1) of the 1995 Act authorised
the conduct of a search of a person by a constable without warrant, where the
constable "has reasonable grounds for suspecting that any person is carrying an
offensive weapon and has committed or is committing an offence under section 47
of this Act". In connection with that
matter, there were two issues. The first
was whether the constable had formed a suspicion that a person was carrying an
offensive weapon. The second was whether
the constable had reasonable grounds for forming that suspicion. There
was no doubt that P.C. Taylor had formed a suspicion that the respondent
might have been carrying an offensive weapon.
He had stated that expressly in the course of his evidence. The live issue in the case was whether there
existed "reasonable grounds" for his having entertained that suspicion. It was submitted that such grounds were
described in his evidence. In
particular, he had described the manner in which the respondent had risen from
a seated position in the restaurant, which he had described as "gingerly". Furthermore, he had testified that he had
seen an item protruding from the respondent's clothing, although he had no idea
at that stage what it was. It had been
seen at the waistband of the respondent's clothing, above the genitalia
area.
[10] The Advocate depute
drew our attention to Druce
v HM Advocate 1992 S.L.T.1110. That case was one concerned with the
operation of section 60 of the Civic Government (Scotland) Act 1982, which permitted a
constable who had reasonable grounds to suspect that a person was in possession
of stolen property to search without warrant that person and any vehicle or
vessel in which he suspects that that thing might be found. The circumstances of that case were that
evidence had been led by the Crown relating to the stopping of a car driven by
the accused, the search of the vehicle and the discovery of stolen property
which formed the basis of the charges.
The search had taken place after a co-accused had been seen to put
something under the dashboard of the car.
An objection to the admissibility of this evidence was repelled and the
accused were convicted. They appealed to
the High Court, arguing that a suspicion that something was amiss, a phrase
used in evidence by the police officers involved, did not amount to sufficient
suspicion to justify a search under section 60. The Court had held that it was sufficient for
the purposes of section 60 that the suspicion entertained raised as one of
the alternatives that the article in question had been stolen, and, one of the
officers having stated that what he saw could have been stolen property or
drugs, there was sufficient suspicion to render the search lawful and the
evidence admissible. The importance of
that case was that, provided that the grounds for suspicion could reasonably
give rise to suspicion of the relevant nature as one of a number of
alternatives, that was sufficient. The
sheriff in the present case appeared to have thought that because the "bump"
under the respondent's clothing could have been caused by any number of items,
it could not be seen as reasonable grounds for suspicion. That approach was erroneous. If the "bump" could reasonably have been
caused by an offensive weapon, albeit that it could have been caused by other
agencies, the requirements of the law were satisfied. In all the circumstances the appeal should be
allowed.
[11] The solicitor
advocate for the respondent moved the Court to answer both of the questions
posed by the sheriff in the affirmative.
In all the circumstances the sheriff's approach had been a correct
one. Looking at the evidence of
P.C. Taylor, it was submitted that he had not articulated grounds for his
suspicion which the Court could regard as reasonable.
The Decision
[12] The search
conducted by P.C. Taylor had been undertaken under section 48(1) of
the 1995 Act, which authorises a constable who "has reasonable grounds for
suspecting that any person is carrying an offensive weapon and has committed or
is committing an offence under section 47 of this Act" to search that
person without warrant. As can be seen
from the narrative of the evidence of this witness, for the reasons which he
explained, he had formed a suspicion that the respondent might have been in
possession of an offensive weapon. As
the argument before us developed, the issue focused was whether there had
existed in the evidence led before the sheriff "reasonable grounds" for that
suspicion. The sheriff's conclusion was
that there were no such grounds. He
considered that that was so because, in particular, the "bump" under the
respondent's clothing could have been caused by any number of items. It is to be observed that the sheriff did not
appear to attribute any significance to the evidence given by the witness to
the effect that, when the respondent had stood up in the restaurant, he had
done so "gingerly". However, leaving
that aside, we consider that the sheriff fell into error, since he appeared to
consider that the "reasonable grounds" had to be referable exclusively to the
subject of the suspicion. In other
words, because there could have been some explanation other than the possession
of an offensive weapon for the "bump" under the clothing of the respondent,
that matter could not constitute reasonable grounds for the necessary
suspicion. In our view that approach is
erroneous in law. In Druce v HM Advocate Lord Justice-General Hope, as he then was, at
page 1111 said this:
"Now the suspicion which must be
established is that a person is in possession of any stolen property. The submission which was made to the sheriff,
which he rejected, was that it was not good enough if the officers had a
suspicion merely that something was amiss but did not know what this was. The submission was invited by the fact that
when the officers were asked about the nature of their suspicion, they said
initially that they were merely suspicious that something was amiss. One of the police officers then went on to
say that the object which he saw being secreted could have been stolen property
or drugs. What we have therefore in this
case is a suspicion on the part of one of the two police officers and one of
them is enough to satisfy the requirements of the section, that the item which
was being secreted under the dashboard could have been stolen property or
drugs. In our opinion that is a
sufficient suspicion for the purposes of the section. It is in the nature of a suspicion that
knowledge as to precisely what character the article possesses has not yet been
established. The purpose of the search
is to resolve that question which has been raised by the suspicion. Clearly when a suspicion is entertained by a
police officer, other possibilities may also occur to him which will require to
be excluded once the article is found and examined. But it is sufficient in order to entitle him
to carry out his search that the suspicion which he entertains raises as one of
the alternatives that the article in question has been stolen".
[13] We consider
that what is said in the foregoing passage has equal force in the context of a
search under section 48(1) of the 1995 Act.
While, no doubt, the "bump" under the respondent's clothing, and indeed
the manner in which he rose from a seated position in the restaurant might have
had other explanations than that he was carrying an offensive weapon, in our
view, that possibility can plainly be seen as one of the several alternative
explanations for the things which P.C. Taylor observed. We consider that
what he observed plainly constituted reasonable grounds for the suspicion that
he entertained. On that view, we
consider that the sheriff's decision to sustain the defence objection to the
eliciting of the outcome of the search was unsound. It is worth observing that, if the sheriff's
approach were correct, the effectiveness of section 48(1) would be almost
completely undermined; we cannot think
that that was the intention of Parliament.
[14] In all these
circumstances we shall answer questions (1) and (2) in the negative.
The Disposal
[15] The Advocate
Depute moved us, if we were to allow the appeal, to set aside the verdict of
the sheriff and grant authority to the Crown to bring a new prosecution in
accordance with sections 183(1)(b) and 185 of the Criminal Procedure (Scotland) Act 1995. Mr Keenan, for the respondent, upon the
assumption that the appeal were to be allowed, did not oppose that motion. In these circumstances we shall accede to the
appellant's motion, set aside the verdict of acquittal of the sheriff and grant
authority for the bringing of a new prosecution in accordance with section 185
of that Act.
