12th Jul 2012
by CHRIS FYFFE
The admissibility of evidence arising from police searches of vehicles under the Misuse of Drugs Act 1971 has become fertile ground for legal argument in recent years. The argument which found prominence in McAughey v HM Advocate  HCJAC 163; 2014 SCCR 11 has resulted in a relative flood of cases centring upon the state of mind of the officer who detains a suspect under Section 23 of the Act.
Section 23(2) provides that if a constable has reasonable grounds to suspect that any person is in possession of a controlled drug he may detain and search him and any vehicle in which he suspects the drug may be found.
McAughey v HM Advocate
The appellant took a preliminary objection to the admissibility of his detention and search of a vehicle he was driving. Crucially, the detaining officers did so after being told by their dayshift supervising officer that the Scottish Crime and Drug Enforcement Agency (SCDEA) had provided information that the vehicle was thought to be carrying drugs and money. The officers were directed to stop the vehicle and detain the occupants under Section 23 for the purposes of a search. The presiding Judge refused the objection and the appellant appealed on the basis that the detaining officers did not have sufficient information from which they could form a suspicion that the vehicle contained controlled drugs.
The opinion of the Appeal Court raised a number of important matters.
The test under Section 23(2) relates to what is in the mind of the detaining officer when the power is exercised.
It is, in part, subjective – the officer must have formed a genuine suspicion in his own mind.
The fact that someone else, say a superior officer, however eminent or worthy of credit, has formed such a suspicion is irrelevant.
The test is also objective – the officer must have reasonable grounds for the suspicion he has formed. The officer must, therefore have equipped himself with sufficient information so that he has reasonable cause to suspect.
Put another way, “someone else’s suspicion based on information which is not shared with the detaining officer will not do.”¹ Since the detaining officers had been acting on an instruction from a superior officer without any direct knowledge as to the nature of any suspicion on the part of the SCDEA, it could not be said that they had reasonable grounds to suspect. The appeal was granted.
The Upshot of McAughey
It is fair to observe that McAughey did not reinvent the wheel. Section 23(2) of the 1971 Act has been in existence for some time. The authorities, from England and Northern Ireland, referred to in the case were not new. Yet, the judgement appeared to take on an almost revolutionary status. An objection to the admissibility of a roadside drug search became known as a “McAughey point.” It is an exaggeration to say that the courts were awash with McAughey-type objections, but since the judgment was released there have been at least four similar cases which have made there way into the Appeal Court. The most recent judgement suggests that McAughey is not as wide-reaching as the number of cases brought in it’s wake might suggest.
Borland v HM Advocate
This is the most recent decision and the opinion of the court, delivered by the Lord Justice Clerk demonstrates how narrow a point the McAughey-type objection relies upon. In Borland, there was an ongoing drugs surveillance operation involving the appellant’s vehicle which was en-route to Dundee. The investigating officer had intelligence that there were drugs on board the vehicle and told the detaining officer about (a) the ongoing surveillance and (b) the drugs on board. The detaining officers stopped the vehicle before it got to Dundee. The appellant was detained and his vehicle was searched under Section 23 of the 1971 Act.
Refusing the appeal, the Lord Justice Clerk made the following observation at paragraph : –
“PC Gillies had been told by a detective officer engaged in an active, on-going surveillance operation that he (the officer) was aware that the car was carrying drugs. That was sufficient in the context of this type of case for a reasonable suspicion to be formed, without the need for further interrogation of the source officer.”
McAughey could be distinguished because that case involved an instruction without any supporting information. Borland followed upon another appeal where McAughey was distinguished on the facts. In McKenzie v Murphy  HCJAC 163 the Court was at pains to point out that McAughey was decided on the basis that “the evidence did not go beyond a mere order to instruct detention and search.”²
Is McAughey Dead and Buried?
It is tempting to see Borland as an attempt to close the door on McAughey a little. On one view, the information provided to the detaining officer in Borland was little different from the instruction in McAughey. In neither case did the detaining officer have direct involvement in the surveillance operation. In McAughey the officer was merely told second-hand that there was an ongoing SCDEA operation and it was suspected that the vehicle contained drugs. In Borland, the information came directly from an officer involved in the operation. The detaining officer was told that there were drugs in the car. That was enough to give reasonable grounds to suspect. Yet,the detail of that knowledge or how the investigating officer came by that knowledge was never explained.
The distinction appears to be this – in Borland the detaining was told that there were drugs in the car, in McAughey he was told that it was suspected that there are drugs in the car. (This begs the question of how the investigating officer in Borland “knew” rather than “suspected”.) Nonetheless, the point raised in McAughey remains good law. It must be borne in mind that it remains very much fact-specific. It is arguable that Borland might have been decided differently if the investigating officer had merely advised the detaining constable that he suspected the vehicle contained drugs.