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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Her Majesty's Advocate v. Loughlin & Anor [2005] ScotHC HCJ_04 (10 November 2005)
URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJ_04.html
Cite as: [2005] HCJ 04, [2005] ScotHC HCJ_4, [2005] ScotHC HCJ_04
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Her Majesty's Advocate v. Loughlin & Anor [2005] ScotHC HCJ_04 (10 November 2005) |
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HIGH COURT OF JUSTICIARY [2005] HCJ04 |
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OPINION by THE RIGHT HONOURABLE LORD MACFADYEN in causa HER MAJESTY'S ADVOCATE against JOHN BOYD LOUGHLIN and LOUISE ISABELLA MARRS ___________ |
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Act: Ablett, A.D.; Crown Agent
Alt: (first accused); Party
Alt: (second accused) Biggam; Marshall Wilson.
7 November 2005
Introduction
[1] John Boyd Loughlin ("the first accused") and Louise Isabella Marrs ("the second accused") are indicted together at the instance of Her Majesty's Advocate. The indictment contains eleven charges. All of the charges are laid against the first accused. All charges except Charges (2), (4), (5) and (11) are laid against the second accused. [2] At a continued preliminary hearing held on 18 October 2005, the preliminary hearing was further continued to 31 October 2005 for the determination of certain preliminary issues raised by the first accused. On 31 October and 3 November 2005 I heard evidence and submissions in relation to those preliminary issues, and further continued the preliminary hearing to Monday 7 November 2005 in order to give my decision on the preliminary issues and my reasons for that decision.The Preliminary Issues
[3] In his revised written record of state of preparation (Form 9A-4) dated 5 October 2005 the first accused formulated three objections to the admissibility of evidence. These are the preliminary issues which are before me for determination. Each objection relates to the admissibility of evidence obtained in the course of searches. [4] The first objection relates to evidence obtained in the course of a search of a Unit named "James Dickson Welding" at the Duncarron Estate, Broad Street, Denny, occupied by the first accused ("the Unit"). The basis of the objection, as formulated in the written record, is that the search was unlawful and contrary to the limitations created by two search warrants dated 25 April 2005 granted by the Sheriff at Falkirk, in so far as it was conducted not by officers of law or civilian officers of Central Scotland Police, but by private individuals invited onto the premises by the police. [5] The second objection also relates to evidence obtained in the course of the same search. The basis of this objection, as formulated in the written record, is that the same search warrants expired when the police failed to secure the premises after concluding the search which was carried out on 1 May 2005, and thus did not authorise further search of the premises on 3, 4 and 5 May. [6] The third objection relates to evidence obtained in the course of a search of a flat at 22 Kerse Place, Falkirk. The basis of the objection is that the police failed to obtain a warrant for that search, that they forced the occupier, the second accused, by threats to allow the search to be carried out, and that the search carried out was a general search.
The Search Warrants
[7] Two separate warrants were obtained by officers of Central Scotland Police from the Sheriff at Falkirk on 25 April 2005. The first (Crown production No. 6) authorised a search for firearms in the Unit. It is unnecessary to discuss it in detail, because, although a firearm was found, it is not suggested that it was found by an unauthorised person, and it was found on the first day of the search. Neither of the first two objections thus relates to the items recovered under that warrant. [8] The second warrant (Crown production No. 7) was obtained on a petition which narrated that it appeared that on 6 or 7 March 2005, the premises at Burnhouse Farm, Denny, were broken into and a tractor and a quantity of tools, keys and other equipment were stolen therefrom. The warrant authorised any constable of Central Scotland Police or other officers of law to enter the Unit, if necessary by force, and to search it and to secure and take possession of any articles which such officers had reason to believe were part of the proceeds of the narrated theft, and for that purpose to open lockfast places.The First Objection
[9] The first accused's contention was that several civilians, who are on the Crown list of witnesses, took part in the search which resulted in the recovery of items which are included in the list of Crown labelled productions. [10] The first witness was Joseph Carroll, Crown witness No. 14, an employee of Brogan Fuels, from whose premises the motor lorry fuel tanker and the quantity of fuel and other items mentioned in Charge (6) are alleged to have been stolen. Mr Carroll gave evidence that at the request of the police on 3 May 2005 he attended at the depot of MTS in Stirling, where he identified a tanker as being the one belonging to his employers. On 5 May, again at the request of the police, he attended at the Unit in Denny, where he was asked to identify if he could some quantities of oil. He was able to identify them as being of the same sorts as had been loaded in the tanker before it was removed from his employers' premises. Although Mr Carroll's recollection of the date was challenged in cross-examination, I accept his evidence. In any event nothing seems to me to turn on the precise date. Under cross-examination, Mr Carroll accepted that he had found other items - a high visibility jacket, a faucet key, and the multiplex system and video which are Crown labelled productions Nos. 12 and 13. He explained that he had simply happened to see these items in passing into and through the premises, and recognised them as belonging to his employers. He confirmed that he was not engaged in a search for any of these items. [11] The second civilian witness was Robert McCarlie, Crown witness No. 18. He was the owner of the tractor mentioned in Charge (7). He noticed it missing from his farm on 25 April 2005. He checked with relatives to see if they had borrowed it, then reported its loss to the police. On 1 May 2005 he went, at the invitation of the police, to the Unit. His tractor was within the Unit. When asked what the purpose of his going to the Unit was, he said it was "to bring our tractor home". He was accompanied to the Unit by his father. Under cross-examination he accepted that he had signed labels in respect of a number of items found in the tractor. One was a soft drink can; he could not recall its being in the tractor when he last saw it before it was removed from his farm. He also signed a label in respect of a set of keys. Contradictory accounts of where these keys were found, and whether they were found by him or pointed out to him by the police, were put to him in cross-examination. It was suggested to him that he had changed his account at the behest of the police. As I have noted it, it was put to him: "the police asked you questions so it was portrayed differently". Mr McCarlie also gave evidence about a CB radio. He was asked by the police if anything was missing from the tractor. He said that a CB radio was missing. A CB radio was then shown to him by the police, and he identified it as his. Under re-examination he said that he was never asked to help in a search. The police appeared to have found the CB radio. [12] The third civilian witness was Duncan James Mair, Crown witness No. 10. He was invited by the police to attend at the Unit on 4 May 2005, and when there was asked if he could identify any items as belonging to him. The charge to which his evidence relates is Charge (3). He gave evidence that he recognised a quantity of tools contained in a red snap-on toolbox (Crown labelled production No. 11) as his. He also identified as his a water pump, a battery charger, and a generator (Crown labelled productions Nos. 18, 19 and 20 respectively). Under cross-examination he said that a number of his tools had been outside the Unit under a lorry, and that he had gone under the lorry to retrieve them. He accepted that he had had "a good search about" for the tools. He accepted that the snap-on toolbox was not his, and said that the police had allowed him to take the tool box to see which, if any, of the tools in it were his. He confirmed that when he attended at the Unit the police were in control of it and everything in it. [13] I have summarised the evidence as to the involvement of the civilian witnesses at the Unit only in so far as it seems to me to have a bearing on the first objection. The first accused asked questions, both of the civilian witnesses and of police witnesses, which strayed beyond that narrow purpose, but I do not consider it appropriate to summarise that evidence here. Much of what was asked, although not relevant to the first objection, might well constitute relevant lines of cross-examination of the witnesses at trial. [14] The first accused submitted that there was no necessity for the civilian witnesses to attend at the Unit. When there, they had taken part in the process of searching the premises. That was contrary to the terms of the warrants. That rendered the search unlawful, and evidence of what was found in the course of it inadmissible. He referred to Singh v HM Advocate 2001 SCCR 348, paragraphs [7] and [12]; Lord Advocate's Reference (No. 1 of 2002) 2002 SCCR 743, paragraph [10]; and Hepburn v Vannet 1997 SCCR 698. [15] The Advocate depute submitted that none of the civilian witnesses could properly be regarded as having taken part in the search of the Unit. What had happened, according to the evidence of Detective Sergeant McGuckin (the officer who had obtained the warrants) and Detective Sergeant Gill (who was put in charge of the search as crime scene manager), was that the police, having found the firearm, and having thereafter carried out an initial cursory search of the Unit for the allegedly stolen property mentioned in the other warrant, had formed a suspicion that other items in the Unit were also stolen. The civilian witnesses were invited to attend at the Unit as property owners to see if they could assist the police by identifying the ownership of property of which the police had taken possession in the course of the search. Having formed the suspicion that items in the Unit other than those mentioned in the warrant were also stolen, the police were entitled to extend their inquiries to cover those additional items (HM Advocate v Hepper 1958 JC 39). Other people might assist the police in carrying out a search. In particular, "where someone else might more readily recognise the items which were being sought, such assistance might be invaluable and it would be strange if such a person could not accompany the [police] officers and identify any items which had been discovered by them" (Hepburn v Vannet, at 700C). [16] In my opinion this objection is not well founded. On the basis of the evidence of the civilian witnesses and the police witnesses who gave evidence, it is in my view clear that the civilian witnesses did not take any improper part in the search. Unlike Singh, this is not a case in which the terms of the search warrant set specific limits on the number of persons who could properly take part in the search. The police, having carried out a cursory search in pursuance of the warrant, formed the view that the premises contained items, beyond those mentioned in the warrant, which were stolen. They were entitled to take possession of such items (Hepper). They were entitled to bring property owners to the Unit to see if they could identify as stolen any of the items in the Unit (Hepburn). It does not seem to me that the question of admissibility of the evidence obtained by the search of the Unit can be answered simply by reference to whether witnesses were led by the first accused to acknowledge that they "searched" for their property (as, for example, Mr Mair did). The reality is, on my view of the evidence, that the police had taken possession of the whole contents of the Unit before any of the civilian witnesses were asked to attend. The role which the civilian witnesses were performing was the identification, as stolen or not stolen, of items of property which the police had already taken under their control. In my view the first objection is not well-founded in any respect.The Second Objection
[17] In support of this objection the first accused submitted that after the cursory search carried out on 30 April 2005 the police failed to secure the Unit. In particular, it was suggested to DS Gill in cross-examination that the blue door marked "Office" shown in photograph 8 in Crown Production No. 27 led into a room from which another door led into an adjoining unit, and that no steps had been taken to secure that possible route into the Unit after the initial search on 30 April. The first accused's submission was that consequently, when the Unit was left unsecured on 30 April, the search authorised by the two warrants which had been obtained came to an end. The further search carried out on subsequent days was thus beyond the scope of the warrants, and would have required fresh warrants. [18] The evidence of DS Gill was that he was unaware of any second door leading from the room behind the blue door marked "Office". After the cursory search on 30 April, an officer had been posted to maintain the security of the Unit until the search was resumed. [19] The evidence of the first accused was that there was a second door from the office which led into the adjoining unit. He gave evidence to that effect by reference to a photograph (defence production No. 1), but that photograph, while showing a blocked up doorway, did not seem to me to add anything to the evidence of the first accused. He claimed to have cited a witness to gave evidence on the point by reference to a plan of the units, but that witness did not attend. The first accused did not have an execution of citation in respect of that witness, and elected not to pursue that matter further. [20] The Advocate depute submitted that the warrant did not expire until the police concluded or abandoned the search. It was important not to confuse the legitimacy of the continued search with the question of whether there might be criticism of the quality of evidence obtained after a breach of security. In the circumstances of the present case, the validity of the search continued, so long as the police had not concluded or abandoned it, even if it might be said that the security of the premises had not been maintained. [21] In my opinion, the submissions by the Advocate depute are to be preferred. The search warrant would cease to justify further search of the Unit only if the proper inference was that the search had been concluded or abandoned, and was not continuing. Even if it be the case that the police failed to maintain the absolute security of the premises throughout the period during which they carried on the search, I do not consider that it is appropriate to infer that they had concluded or abandoned the search. I accept the evidence of DS Gill that he was unaware of the second exit from the office. It follows, in my opinion, that it cannot be inferred from the existence of the second exit, even if its existence were held to have been proved, that the search had come to an end. I am therefore of opinion that the second objection is ill founded.The Third Objection
[22] The evidence was that a number of police officers attended at 22 Kerse Place in possession of a warrant for the apprehension of the first accused. It was suggested to various police witnesses that access to the common entrance, and to the flat in question, was obtained by force, but I do not consider it necessary to reach a conclusion on that issue. Once the police gained access to the flat, and confirmed that the male person in the flat was the first accused, they arrested him and removed him to the police station. Other officers remained. The evidence of the police officers was that they then sought and obtained from the second accused, who was present and was the occupier of the flat, permission to search it. That evidence was confirmed by Rebecca Fowler, a friend of the second accused, who was present in the flat at the time. The first accused sought to adduce the evidence of the second accused on the point, but she withheld her consent and was accordingly not a compellable witness at his instance in terms of section 266(9)(a) of the Criminal Procedure (Scotland) Act 1995. [23] It was suggested by the first accused in cross-examination of the police witnesses that the second accused had not truly consented to the search of the flat. The basis of that suggestion was that she had initially been reluctant to agree to a search, but had been told that if she did not consent, a warrant would be sought and the premises would be sealed (and she excluded from them) in the meantime. The officers agreed that that had been explained to the second accused. I did not regard that explanation as illegitimate, or as placing the second accused under improper pressure to agree to a search. [24] The first accused further submitted that the search carried out at the house was invalid because it was a general search. He cited Stewart v Roach 1950 SLT 245 and Funke v France [1993] 16 EHRR 297. In reply the Advocate depute submitted that if consent were given to a general search, a general search was legitimate. In any event, the uncontradicted evidence of the police officers was that they indicated that they wished to search for vehicle keys and items relating to the theft of motor vehicles. [25] In my opinion, the search of the flat was warranted by the permission obtained from the second accused. I do not consider that the fact that she was advised that if she did not consent to a search, a warrant would be sought and the flat would be sealed in the meantime, amounted to an improper inducement to consent. I am therefore of opinion that the third objection is ill founded.
Result
[26] For the reasons which I have given, I am of opinion that each of the three objections taken by the first accused is ill founded. I accordingly repel all three objections.