QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(SIR BRIAN LEVESON)
MR JUSTICE MALES
| THE QUEEN
(on the application of AMBER DALY)
|- and -
|THE COMMISSIONER OF POLICE OF THE METROPOLIS
- and –
SOUTH EAST MAGISTRATES COURT
Pravin Fernando (instructed by Department of Legal Services, Metropolitan Police)
for the Defendant
The Interested Party did not appear and was not represented
Hearing date: 13 February 2018
Crown Copyright ©
Sir Brian Leveson P :
"Whilst the police helicopter was flying over the local area, the crew noticed the address that is the subject of this … report. It was seen on the thermal image camera to be emitting a significantly greater amount of heat from the roof/chimney stack area compared to all the neighbouring and surrounding premises.
A significantly high proportion of incidences of buildings displaying similar heat levels to this have in the past proven to be caused by the use of hydroponic lighting to accelerate the cultivation of cannabis plants. The heat, which these lights also produce, is usually vented through the loft space which is why the roofs stand out well on an airborne thermal imager. Alternatively, the heat could be routed through multiple flues making the chimney stack stand out in a similar way.
Greater temperature differentials, or greater proportions of any roof being heated, tend to indicate that the factory is very active and cropping is imminent.
There is also a significant risk to public safety due to the elevated risk of fire and overloading and bypassing of the electrical circuits within the premises. For those reasons the ASU recommend a timely investigation into the causes of the high heat emissions from this property."
"As PC Layton passed the location, a scent of cannabis could be smelt in the air upon the terraced housed road. … The lower half of the address bay window open and nets seemed slightly dirty and a bicycle was locked to the railings outside the premises. The upper windows of the address were in complete darkness where it is apparent they have been blacked out with some film or black bag material. PC Layton is a drugs expert and suspects based on information from the air support unit of high heat emitted from the location in combination with the scent of cannabis and the windows being blacked out are in keeping with the premises being used as a cannabis factory."
"The address came to police attention based on the database system … air support unit. The best you can get. The air unit were not specifically targeting the address. I smelt cannabis. The windows are blacked out. I've been to the address this morning as postman. It appears to be one premises. There were droplets in the air from not using a carbon filter."
"The boiler was put on full power thereafter to dry out the renovation work."
"There is uncertainty around whether the thermal images supplied represent warm temperatures with light or dark tones and this could not be clarified in the time available. This issue is pivotal to the case and would need to be settled in order to provide a reasonable degree of certainty as to whether or not there is an unusual amount of heat emission from the roof of the Claimant's property.
If it is confirmed that the thermal images follow the usual practice of dark tones representing cold temperatures, then accordingly there is no evidence of unusually high heat emission …"
"The image has been captured in Infra Red and the operator has selected black as the 'hot' source. It has been captured at night where there are no natural sources of heat (sun). … Within the image the vehicle bonnets can clearly be identified and show as 'black' sources. This is because the heat from the vehicles' engines has caused the bonnets to absorb some of this heat from underneath and transmit it into the atmosphere. Equally, the same can be said about a chimney stack in the bottom left of the image … which again clearly shows up as black because it is transmitting heat. …
Therefore my opinion is that the roof of 109 Marsala Road clearly identifiable in black was absorbing some form of active heat source from within the house or loft space which was being transmitted into the atmosphere and viewed by the aircraft's thermal sensor."
"If you are referring to the IR image, it is definitely using White hot. You can tell by the car in the for ground (sic) has very white areas. All roofs are pale, whereas if black hot it would be reversed."
"In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of CICB. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been 'established', the sense that it was uncontentious and objectively verifiable. Thirdly, the open (or his advisers) must not have been responsible for the state. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning."
"It is therefore clear that, in administrative law, mistake of fact resulting in unfairness can be a ground for judicial review if five conditions are met, namely that:
(1) All the participants had a shared interest in co-operating to achieve the correct result.
(2) There was a mistake as to an existing fact (which could include a mistake as to the availability of evidence on a particular matter).
(3) The fact or evidence has been "established" – in the sense that it is uncontentious and objectively verifiable.
(4) The person relying on the mistake, and/or his advisers, was not responsible for the mistake.
(5) The mistake played a material (not necessarily decisive) part in the court's reasoning."
"Given the danger of opening unintended floodgates, my conclusion as to the application of material mistake of fact leading to unfairness being available as a ground of judicial review in the context of criminal proceedings is strictly limited to applications concerned with the determination of applications to adjourn trials in the Magistrates' Courts - which, as Balogun v DPP already makes clear, should only be made if the circumstances are exceptional."
Males J :