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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Procurator Fiscal, Dumbarton v. Jamieson [2007] ScotHC HCJAC_56 (20 September 2007)
URL: http://www.bailii.org/scot/cases/ScotHC/2007/HCJAC_56.html
Cite as: 2007 SCCR 497, 2007 GWD 32-548, 2007 SLT 1180, [2007] HCJAC 56, [2007] ScotHC HCJAC_56

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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.

 

 

 

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