APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Clarke Lord Kingarth	[2011] HCJAC 36 Appeal No: XJ1146/10 AND XC404/10 OPINION OF THE COURT delivered by LADY PATON in BILL OF SUSPENSION AND APPEAL AGAINST CONVICTION by HE WUCHAO Appellant; against PROCURATOR FISCAL, LANARK Respondent:

Appellant: L K Kennedy; Jim Friel & Co, Glasgow

Respondent: D Bain QC, Advocate depute; Crown Agent

15 April 2011

Introduction

[1] The appellant is a Chinese national. In 2007 he was charged with being concerned in the production of cannabis, contrary to section 4(2) of the Misuse of Drugs Act 1971. He failed to appear at a trial diet on 3 January 2008. When traced, he was re-indicted with the drugs charge and the failure to appear. He pled guilty to the second charge and, in respect of the first charge, went to trial before a jury in Lanark sheriff court on 10 May 2010. The jury returned a verdict of guilty on 11 May 2010. He was subsequently sentenced to 30 months (Charge 1), and 6 months (Charge 2), to run consecutively. The sheriff also recommended deportation.

[2] The appellant now appeals against conviction in respect of Charge 1, challenging the legality of the search procedures leading to the recovery of cannabis plants. He has also raised a Bill of Suspension in relation to the search warrant.

The search procedures

[3] In the course of the trial, objection was taken to the search procedures which led to the recovery of cannabis plants. A trial within a trial took place. One witness gave evidence, namely Police Constable Ferguson, aged 51. A transcript of his evidence in the trial within a trial was available to the appeal court.

[4] Constable Ferguson stated that he and two other officers, Constables Henry and Given, had received intelligence that a cannabis-growing operation existed somewhere in their locality. With that in mind, the officers drove around Lesmahagow on 17 April 2007, looking for any signs of illegal drugs cultivation. They were in plain clothes, and in an unmarked police car. At about late morning or midday, they noticed a new two-storey private detached house at 54 Priory Lane, Lesmahagow. The windows were blacked out by bin bags. Constable Ferguson knew that cultivation of cannabis plants required the exclusion of daylight and the use of artificial light. Accordingly the officers went to the house to investigate further. They saw that not only the windows at the front of the house were blacked out, but also those at the rear except the kitchen window. As they stood discussing the situation, the appellant climbed out of the kitchen window and ran away. A pursuit then took place, involving all three plain-clothed officers (who were shouting "Stop! Police!"). They were assisted in the chase by uniformed officers and by a police helicopter. While being pursued, the appellant lost his footing in a gorge with a drop of about 200 feet. He rolled to the bottom, got up, and began running again. After about an hour, the appellant was found hiding in vegetation at a riverbank. He was detained. No meaningful communication was possible as he spoke only Mandarin Chinese.

[5] Having left the appellant with uniformed officers, the plain-clothed officers returned to 54 Priory Lane. The doors were locked. The kitchen window was open. Constable Given heard noises inside the house. He asked his colleagues to listen. In the trial within a trial, Constable Ferguson said that he went to the kitchen window and heard the sound of running water and a whirling noise. He stated that he had some experience in these matters, and formed the view that he was hearing the waterworks (hydroponics) necessary for the cultivation of cannabis, and fans clicking in. However while he was 90 per cent sure, he was not 100 per cent sure, and he commented that although he had experience, he had on occasions been wrong. Constable Ferguson then gave evidence that his colleagues, Constables Henry and Given, proceeded to climb in through the open kitchen window. The two officers looked around the house, both on the ground floor and the upper floor. They saw inter alia many cannabis plants, a fact which they reported to Constable Ferguson. During cross-examination in the trial within a trial, Constable Ferguson said:

"I think the reason for going in was to see if there was anyone else there, anyone in danger, and, you know, to preserve life or property if that was the case, but you're 90 per cent sure what you're going to find is the cultivation. However, you're not 100 per cent sure."

An excerpt from Constable Ferguson's evidence can be found at paragraph [8] below.

[6] At that stage, Constable Henry applied to the sheriff for a search warrant for 54 Priory Lane, which was owned by Craig Hepburn. A warrant was granted. The sheriff, in a report responding to the Bill of Suspension, explained that:

" ... The warrant was granted by me, having considered the terms of a petition at the instance of the procurator fiscal, and having been given verbal information on oath by police officers, the outlines of which I briefly noted, which satisfied me that there were reasonable grounds for suspecting that an offence under the [Misuse of Drugs Act 1971] was being committed at that address.

My notes are brief and abbreviated in my normal manner, and will not reflect every word told to me in the course of the application. They are likely to reflect my assessment on that date of what parts of the information I was being presented with were relevant to support an application for a warrant in respect of a particular property, as opposed to the careful notes of evidence I take in the course of a trial. They are as follows:

'Craig Hepburn - 54 Priory Lane. Info re house used to cultivate cannabis. Att earlier today for look - man jumps out of window - we give chase. Return to house - pump working - can see it's full of cannabis. Chinese national."

My memory of the application is non-existent, given that it took place 31/2 years ago. There clearly was sufficient information presented to me, as documented in my note, given contemporaneous eye witness evidence of the existence of controlled drugs at the named premises to justify the granting of the warrant sought. I am not in a position to assist further in relation to the issues raised at statement of fact 14 [in the Bill of Suspension, i.e. whether or not the sheriff was told that the property had already been entered without a warrant]."

[7] The officers returned to 54 Priory Lane with the search warrant. Entry was again effected through the kitchen window. The locked doors were unlocked from the inside, using keys obtained inside. The first recovery was made at about 2.30 pm, and the search continued until about 11 pm. 471 cannabis plants, compost, fertilisers, high-powered fluorescent lights and fans were found. The cannabis was worth between £65,800 and £197,800.

Excerpt from the evidence in the trial within a trial, and the sheriff's ruling

[8] In the course of cross-examination of Constable Ferguson, the following exchanges took place (pages 29 to 32 of the transcript):

Q ... you had gone to that area with specific intelligence that there might be a cultivation factory in that area?

A The possibility, yes ...

... we were roaming around the Clydesdale area, which was our, our area, and we did decide 'We've heard about it, we've had this intelligence, let's have a wee run round there and see what we can see'. It was part ... I'd say, the biggest part of our job going in there was to have a look to see if we could pinpoint which house this was.

Q And when you saw this house blacked out ...

A Yes.

Q ... did that crystallise your suspicion?

A Pardon? I would say, yes, it did ...

Q I think when my friend asked you the same question, you said 'Yes, very much so'"

A Yes.

Q And I think you went on to say that when you later on came back to the house and you heard the sound of running water and whirling sound, you said it made you more suspicious that it was 'probably' a cultivation, is that so?

A Myself, I've, I've, ah, had the experience of coming across them before, and eh, it was the same sort of sounds.

Q Right.

A However, you couldn't be certain.

Q Right. What was it about the sounds that made you suspicious that this was probably cultivation?

A Well, running water could have been anything. However in my own experience, I thought it could be the hydroponics, possibly. That was what I was thinking. Ehm, the other sounds could have been anything, but again, through my own experiences, I would say it could have been the fans coming ... clicking in, you know, but you, you couldn't be sure ...

Q I understand that.

A You just couldn't be sure.

Q But certainly there was a very firm suspicion and it was a suspicion that you had based on a reason?

A Based on experience for me. I can't speak for other officers, but ...

Q Well in relation to the other officers, did you communicate what your suspicions were to them?

A I, eh ... It was so long ago, I can't remember exactly what I said to who, sir. I possibly did.

Q Okay.

A Actually I think I would do.

Q In hindsight, and hindsight's a marvellous thing, I appreciate, but in hindsight, having had that suspicion, and I take it from your evidence it was quite a firm suspicion, would you have sought a warrant sooner?

A I think the reason for going in was to see if there was anyone else there, anyone in danger, and, you know, to preserve life or property if that was the case, but you're 90 per cent sure what you're going to find is the cultivation. However, you're not 100 per cent sure.

Q No, but 90 [per] cent sure is pretty certain, isn't it?

A It's still a doubt. There could have been someone in there ...

Q Yes.

A ... and ... or it could have been something else altogether. There was no explanation for why the man had come from the window, he ran from us when we shouted who we were, and then he couldn't explain to us because he couldn't understand a word I was talking about.

Q But your experience ...

A There was an ... there was still an element of doubt but it wasn't much, but there was still an element of doubt, sir.

Q Your experience allows you to form a view as to what was likely going on in there?

A Yes, but I ... my experience is ... I mean (inaudible) used before and I've been wrong.

[9] At the end of the trial within a trial, the sheriff ruled that the evidence recovered during the search conducted with the warrant was admissible, stating inter alia (pages 36 et seq of the transcript):

"The purpose of the trip to Lesmahagow ... was not directed at the specific property at 54 Priory Lane; there was no intelligence received by the officers involved relating to that specific property at that time. Their suspicions were increased in relation to that property when they noticed the blacked out windows. That was not (inaudible) of whether or not the drug production was going on internally, but, in any event, before having the opportunity to determine the next step in relation to that, their attention was drawn with their attempts to stop the man who exited the property via the window and ran away. Having successfully apprehended that individual, they returned to the house. Their attention was then drawn to noises consistent with hydroponic production, but also with a danger to property and to life, namely the sound of running water and whirring noises. It was at that stage, and I am mindful on the evidence of PC Ferguson of the possibility that someone was in the house, in danger, the officers entered the house to preserve life, and I am quoting 'to preserve life and property'. So that was, in my view, an appropriate step without the obtaining of a warrant. Accordingly the objection to the line, I repel..."

[10] As the sheriff further explained in her two reports to this court (relating to the appeal and to the Bill of Suspension):

"[In the trial within a trial, it was submitted on] behalf of the appellant ... that a warrant should have been obtained on the basis of the blacked out windows and sound of running water. PC Ferguson had indicated he was 90% sure. On behalf of the Crown the procurator fiscal depute invited me to have regard to the officer's evidence that no intelligence related to the specific property, that whilst blacked out windows raised the officer's suspicions, they could have had a legitimate purpose, that the reason for the officers entering the property was to take steps to ascertain that neither property nor persons were in danger, having seen a man escape the property through a window and run away and having heard the sound of running water and of whirring coming from inside.

I took the view that in entering the house, officers were responding, in circumstances of urgency to a set of circumstances which, whilst raising suspicions of drug production, also raised concerns about danger to persons and property which required to be investigated. An Asian man, who on apprehension seems to speak no English, is seen escaping and running away from a house and hiding. Why he does so is not clear. Who he is evading is not clear. He does so against a background of noises coming from within which could point to drug cultivation but alternatively could point to property damage. The officer was 90% confident but not certain that there was no-one else inside the house (for the avoidance of doubt, my notes indicate that it was this issue that his assessment of 90% confidence arose in relation to). I took the view that the officers did not behave improperly in entering the house without a warrant to ensure that the property, its contents and anyone who might be in it [were] safe and secured. Given such concerns it would have been impracticable to await a warrant before entering. This search took place against the suspicion, reasonably held, that offences of a serious nature, namely the cultivation of illegal drugs, might be taking place upon the premises. Having regard to the nature of the crime under investigation and to the circumstances outlined above, I took the view that the entering of the premises without warrant was justified, and I accordingly repelled the objection to the line and the trial continued before the jury."

Submissions

Submissions for the appellant

[11] Counsel for the appellant submitted that the police had entered and searched 54 Priory Lane before they had obtained a warrant. The sheriff erred in law in repelling the objection to the admissibility of the evidence of the search. On the evidence led at the trial within a trial, the sheriff was not entitled to rely upon urgency as a consideration. Moreover, as it was the same sheriff who granted the warrant and who heard the trial, that sheriff was entitled to go behind her own warrant: contrast with the circumstances in Allan v Tant 1986 SCCR 175. That would obviate the need for a Bill of Suspension, as the sheriff could review her own warrant on the basis of the objection to the admissibility of the products of the search. However a Bill of Suspension had, in any event, been brought.

[12] The objection to the admissibility of the evidence had been taken mid-trial without any earlier preliminary objection, as the disclosure statements had been silent on the issue of prior intelligence. The sheriff permitted the objection to be argued.

[13] In ruling on the objection, the sheriff took the view that the reason that the officers had entered the house was to see if anyone else was there, perhaps in danger: in other words, "to preserve life and property". The sheriff took the view that, in entering the house, the officers were responding to an urgent situation, to a set of circumstances which, while raising suspicions of drug production, also raised concerns about persons and property requiring to be investigated. In her view, the combination of the unexplained escape of the Chinese man together with the background noises possibly pointed to property damage or persons at risk. The sheriff therefore held that the officers were not acting improperly in entering the property to ensure that the property, its contents, and any occupants were safe. Given the officers' concerns, it was impracticable to await a warrant before entering. The police had, in a sense, been acting in the capacity of negotiorum gestor.

[14] However counsel submitted that the sheriff had erred in her conclusion. The evidence disclosed that the facts known to the police included: general intelligence about illegal cannabis cultivation in the area; a house with blacked-out windows; an oriental person climbing out of the kitchen window and making good his escape; and sounds similar to those caused by hydroponics and equipment used in the cultivation of cannabis plants. Those facts pointed to the inescapable conclusion that 54 Priory Lane was a centre of cannabis cultivation. It was difficult to see what other information was needed. The sheriff's view about urgency was not an objective view based upon the material available to the investigators at the time. The police gave no specification about any concerns for life and property. In the light of Constable Ferguson's 90 per cent certainty, the sheriff was not entitled to accept as plausible the alternative reason of concern for "risk to life or property". That alternative stretched plausibility and barely survived scrutiny. The explanation about "risk to life or property" had emerged only in cross-examination, not in evidence-in-chief. In effect there had been a circumventing of the regular procedure for obtaining a search warrant. Counsel invited this court to conclude that the police had no authority for their initial entry to the house, and that all that followed was vitiated by the illegal entry. Accordingly the ultimate fruits of search should have been held inadmissible, and the objection sustained. The sheriff had erred when she accepted the officers' explanation for the initial entry to the house. The appeal should be allowed; the conviction in respect of Charge 1 quashed; and the bill passed simpliciter.

Submissions for the Crown

[15] The Advocate depute argued that the police officers had a suspicion that there was probably cannabis cultivation in the house, but it was impossible to say for certain. The officers had to balance a number of factors. The information available to them included a person leaving by the kitchen window and running away despite shouts of "Stop! Police!"; a determined attempt by that person to get away (so determined that he risked personal injury when rolling down to the bottom of the gorge); the officers ultimately returning to premises (which were not secure as the kitchen window was open) and hearing sounds coming from inside; and an inability to see inside coupled with a concern that someone might be inside. The officers had a legitimate concern. They went inside, saw what was there, and went to get a warrant. The evidence led at the trial within a trial permitted the sheriff to adopt the reasoning she did. It could not be said that no reasonable sheriff would have reached the view which the sheriff reached on the evidence available. There had been no unfair trickery, and no bad faith. The officers were acting in the public interest in relation to a serious offence that was difficult to detect. Even if the sheriff was not correct in her conclusion on the evidence, the initial entry to the premises should be viewed as an excusable irregularity, during which the officers had taken nothing and done nothing. Matters were then regularised when the officers obtained a warrant and a search proceeded on the basis of that warrant. Reference was made to Lawrie v Muir 1950 SC 19. Both the appeal and the bill should be refused.

Discussion

[16] We accept the force of many of the points made by counsel for the appellant. Few would dispute that the officers had sufficient material upon which to base an application for a search warrant without having to enter the house. In particular, they had the general intelligence that there was a cannabis factory somewhere in the locality; the fact that the windows were blacked out by bin bags against the background of their knowledge that cannabis plants required the exclusion of daylight and the use of artificial light; the escape of a Chinese man from the kitchen window and his determined attempts to run away; and the sounds of water and a whirling noise which Constable Ferguson was 90 per cent sure came from the hydroponics necessary for cannabis cultivation and from fans clicking in. Those circumstances would, in our view, clearly have justified the grant of a search warrant. Standard procedure would therefore have been to seek a warrant at that stage, before entering the house.

[17] However the question at issue in this appeal is not whether this court (or indeed another sheriff) would have sustained the defence objection in the light of the evidence led at the trial within a trial, but whether, in the circumstances of this case, no reasonable sheriff would have repelled the objection.

[18] At the outset we acknowledge that there may be cases in which an officer simply asserts a concern for risk to life and/or property, unsubstantiated by any circumstances or reasons supportive of that alleged concern. In such circumstances there would, in our view, not only be a strong basis for questioning his credibility but also insufficient material to justify entry without a warrant. But this was not such a case. On the contrary, there was evidence of circumstances or reasons supportive of the plain-clothed officers' concerns. The hurried escape by one occupant of the house by an unusual route (a window, rather than a door), and his desperate attempt to run away even at some danger to himself, was open to several interpretations, including an interpretation that there was someone or something in the house presenting a risk to that occupant and possibly to other occupants. The officers were unable to allay any concerns or to discover why he had acted the way he did, as on apprehension he was found to speak no English. On their return to the house the officers noticed unusual noises from within, namely the sound of running water and a whirling sound. While Constable Ferguson was 90 per cent sure, on the basis of his experience, that the noises emanated from cannabis cultivation, he had been proved wrong on previous occasions. As the windows were blacked out, the officers could not carry out the simple check of looking through the windows to see whether anything untoward was occurring. All of those circumstances could reasonably be said to have left the officers with an unanswered concern about risks to life and/or property within the building.

[19] We accept of course that the circumstances were also open to the interpretation that there was a cannabis-growing concern in the house. Indeed Constable Ferguson was 90 per cent sure that that was what they would find. But there were other possible interpretations, including one which gave rise to a concern about the existence and safety of someone else inside the house, and the safety of the property. And the credibility and reliability of the police officer's evidence was for the sheriff to determine.

[20] In the result, we are unable to conclude that no reasonable sheriff, faced with the evidence of Constable Ferguson and the supporting circumstances, would have accepted that the officers entered the premises because they had a concern that there might be someone else inside the house and that there might be a situation giving rise to risks to life and/or property. In conclusion therefore we accept, first, that while there is no definitive record of the information given to the sheriff during the application for the warrant, the sheriff had, on any view, sufficient information upon which to grant the search warrant (see paragraph [16] above). Secondly, we accept that in the subsequent trial the sheriff was entitled to make the ruling she did having heard the evidence led in the trial within a trial. In these circumstances, it is unnecessary to consider the Crown's alternative submission that any irregularity would have fallen to be excused.

Decision

[21] For the reasons given above, we refuse the appeal, and refuse to pass the Bill of Suspension.