Robert Gilmour vs. Her Majesty’s Advocate

12th February 2014

Background

On 8th August 2013, police entered Mr Gilmour’s house using an extant warrant dated 9th July, based upon a suspicion that the appellant had been dealing drugs from the vicinity of his home. On the morning of the search, an officer observed Mr Gilmour on a bus in the Whitesands, Dumfries. Checking the police intelligence data base, the officer found B and E grade intelligence to the effect that the appellant had been travelling by bus to source his drugs. After returning to the station the officer shared this information during a briefing concerning the warrant.

Two officers were tasked with finding and detaining Mr Gilmour. They did so at about 1.15pm in the vicinity of Friar’s Vennel and detained him. Mr Gilmour was taken to the police station for a full search, during this search certain drugs were said to have been found between his buttocks.

After the arrest a sheriff heard an objection to the evidence of the recovery of the drugs. This objection addressed the absence of reasonable grounds of suspicion. The sheriff rejected the objection.

The appellant was ultimately charged with “concern in the supply, or the possession in the alternative, of heroin, contrary to sections 4(3)(b) or 5(2) of the Misuse of Drugs Act 1971.”

Appeal

The appeal is builds on the original objection presented to the sheriff. The Note of Appeal contains the following ground:

“there was insufficient evidence that this officer, from his own knowledge, had reasonable grounds for the suspicion which was formed and accordingly the sheriff misdirected himself in rejecting the submission that the search was unlawful.”

The submission restricted the objection to whether the suspicion was founded on reasonable grounds, although this was expanded to question the genuineness of the suspicion itself. The appeal was submitted with reference to Knaup v HM Advocate 2002 SCCR 879 and McAughey v HM Advocate [2013] HCJAC 163. These cases show that what is required is information that the suspect is in possession of controlled drugs at this time and not that they had been in the past or would be in the future.

Conclusion

The appeal concluded that the sheriff found that the detaining officer did have a genuine suspicion that that the appellant was in possession of controlled drug and that this suspicion was based on reasonable grounds. The decision’s reasonable grounds were based on a number of factors. These include the following:

  • background intelligence regarding the location and timing of Mr Gilmour’s dealing
  • an actual search warrant based on Mr Gilmour’s dealing
  • an existing judicial determination of the existence of reasonable grounds to suspect possession at least at his his home
  • the appellant’s behaviour indicating probably possession of controlled drugs.

Due to these reasons, the sheriff’s conclusion was found to be justified and the appeal was refused.

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