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Evidence recovered from phone justified second detention: appeal court

23 May 2017

A man suspected of drugs offences was lawfully detained for a second time on the basis of information recovered from a mobile phone which was among items seized during a search prior to his initial detention, the Criminal Appeal Court has ruled.

Lord Menzies, Lady Clark of Calton and Lord Turnbull gave the decision on an appeal by Lee Dunsire against a judge's decision to refuse a preliminary issue minute which objected to the admissibility of evidence of his police interview in the course of his detention on the second occasion.

The appellant's house had been searched under warrant, as had his brother's. From the appellant's house police recovered two small quantities of drugs, digital scales, notations on a piece of paper, £140 in cash and four mobile phones. A larger quantity of drugs was recovered from the brother's house. Each brother was taken to a police station, formally detained and interviewed. The appellant made no admissions and was released without arrest or charge.

The mobile phones were sent for analysis, and data downloaded to a disc contained information that appeared to relate to drugs transactions. The appellant was again detained, on the basis of that information. He challenged the lawfulness of that detention, and the admissibility of evidence of the interview that then took place, as contrary to s 14(3) of the Criminal Procedure (Scotland) Act 1995, which prohibits further detention "on the same grounds or on any grounds arising out of the same circumstances".

It was argued that the section meant that re-detention was only available where there was fresh evidence, such as a new witness. That was not the case here. The police suspected the appellant of involvement in drugs when they obtained the search warrant. Their suspicion deepened on 23 March when they recovered the four mobiles, and hardened further when they received the disc.

Lord Menzies, who delivered the opinion of the court refusing the appeal, said the most relevant reported case was HM Advocate v Mowat (2001), where Lord Osborne held that "arising out of the same circumstances" had to refer to the circumstances on the basis of which reasonable suspicion of the commission of an offence had arisen before the initial detention, and which therefore had to be in existence "at the latest immediately before the initiation of the detention".

Applying that approach, the second detention could not be said to be on the same grounds as the first detention. "The officers did not have as their grounds for suspecting the appellant at the first detention, the contents of the phones and in particular the texts which might relate to the supply of amphetamine, because they were not aware of this content and had not seen these texts. Similarly it cannot be said that the second detention was on any grounds arising out of the same circumstances because those circumstances, i.e. the knowledge of the contents of the phones and the texts which might relate to the supply of amphetamine, were not in existence immediately before the initiation of the first detention." 

The second detention was therefore not illegal.

Click here to view the opinion of the court.

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