Scottish High Court of Justiciary Decisons

Act: I Bryce, solicitor advocate; Central Criminal Lawyers, Livingston

Alt: AF Stewart QC, AD; the Crown Agent

14 June 2012
[1] The respondent was indicted to a first diet at Kilmarnock Sheriff Court on 19 December 2011 on charges libelling that, on 23 December 2010 at 72 Sinclair Court, Kilmarnock, he produced cannabis; contrary to the Misuse of Drugs Act 1971 section 4(1) and was concerned in its supply; contrary to section 4(3)(b) of that Act. The trial diet was scheduled for 9 January 2012, but this was postponed for a variety of reasons including the determination of this Bill of Suspension.

[2] On the date libelled, an electrician with Scottish Power was called to a neighbouring house to that in the libel, because of an interruption in the normal power supply. He required access to the property libelled as its supply fed that house. He went to that property with the neighbouring householder. The door was eventually opened by a man of Vietnamese appearance who could speak very little English. He was on the telephone to the householder of the property libelled and the electrician spoke to him. The householder declined the electrician's request that he be allowed access. At this point, the electrician was able to see past the man at the door and observed large polythene sheets covering the internal and external doors. He detected a particular smell. Having had experience of similar events, he concluded that a cannabis cultivation was in progress. He called the police and advised them that the power failure was connected with the cannabis cultivation. Meantime, the man who had answered the door had fled the scene.

[3] Two uniformed police officers arrived. They spoke to the electrician. They went to the door, which was "insecure" and had been left "slightly open". The police entered the property; identifying themselves as police officers as they did so. The purpose of entering was, according to the Crown, in order to check to see if there was anyone present and to detain such persons if they had been. There was no response. The police allowed the electrician into the property in order to check the safety of the electrics, given that there was substantial cabling throughout the property intended to meet the substantial needs of the cultivation equipment. The fuse for the property had blown and had been replaced by the one serving the neighbouring house; hence the interruption to the supply. The electrician discontinued the supply to the property. During the course of their actions, the police were able to confirm their preliminary observations that the property was indeed being used for cannabis cultivation.

[4] After these preliminaries, the police stopped their enquiries and requested a warrant to carry out a search from the local Sheriff. The sheriff reports that she was told of the problem with the power supply and that the electrician had called the police with the information about the sheets and the strange smell. She was told that the police had attended and had noted the same suspicious circumstances. She had no note of being told that the police had entered the property. The sheriff granted the warrant and states that she would have done so on the basis of the information of the electrician alone.

[4] The appellant sought suspension of the search warrant, granted under section 23(3) of the 1971 Act, in advance of the trial diet. This was said to be necessary following Allan v Tant 1986 SCCR 175 and Stuart v Crowe 1992 SCCR 1981. The ground for suspension is that the sheriff had not been appraised of the actions of the police in entering the property, without lawful authority, before seeking the warrant. The actions of the police were said to have amounted to an "unlawful and illegal" entry and that, had the sheriff been told of this, she would have been bound to refuse to grant the warrant. There was a need to ensure that the principles governing police investigations were adhered to with reasonable strictness (McGovern v HM Advocate 1950 JC 33, LJG (Cooper) at 37). Without having been given the full information, the sheriff could not be seen to be acting as an independent judicial figure considering the circumstances (Birse v HM Advocate 2000 SCCR 505, LJG (Rodger) at para [10]; Hay v HM Advocate 1968 JC 40, LJG (Clyde) at 46). The case was distinguishable from the facts in He Wuchao v HM Advocate 2011 SCCR 317, where the police had a concern that there might have been someone in the property and the situation involved a potential risk to life and/or property (see the Opinion of the Court delivered by Lady Paton at para [20]).

[5] The Advocate Depute stated that the property was entered with a view to ascertaining whether there were others present and to ensure that the electrical supply was safe. The police had entered lawfully. The door had been open and the police had been given information that there was a cannabis cultivation in progress. They were entitled to enter as a matter of urgency to ensure that there were no persons within and that evidence was not destroyed. There was also urgency from the safety viewpoint. The police had done no more than was necessary in a situation of urgency and had stopped once that urgency had passed pending the arrival of the warrant. Since the sheriff would have granted the warrant on the basis of the information from the electrician alone, the actings of the police had been immaterial.

[6] It is important to put the actions of the police into context. What is complained about is not so much that a search of the premises was conducted (since it was not) but that the police entered the premises without a warrant. There is no suggestion, in that context, that the police broke into the house (cf Paton v PF, Glasgow [2012] HCJAC 49) or overcame its security by entering using an unconventional method (cf He Wuchao v HM Advocate 2011 SCCR 317) or were told by those with right to do so that they could not enter. There is no complaint that any right of privacy or property has been infringed.

[7] As a generality, the police have no more power to enter upon private property than the ordinary citizen has. They risk being ejected or otherwise dealt with as trespassers if they do. However, at least providing that they are acting in good faith (ie having reasonable cause for their actions), they are able to enter private property lawfully to ascertain, amongst other things, if an offence is being committed (eg Shepherd v Menzies (1902) 2 F 443, Lord Ordinary (Kyllachy) at 445-446; Southern Bowling Club Ltd. v Ross (1902) 4 F 405, Lord Ordinary (Kincairney) at 410-411) and also, no doubt, if life or property is in danger. Indeed, in the latter situation, they are also entitled to break into premises without warrant in the event of urgency (He Wuchao v HM Advocate (supra) Paton v PF, Glasgow (supra). In the present case, it cannot be maintained that the police were not acting in good faith or that their actions were otherwise unjustified. Whether they entered in order to prevent any person inside from interfering with any evidence, or to see that no-one was endangered as a result of the interference with the electricity supply, or even just to confirm their suspicions of criminality and to arrest any culprit, their actions cannot be classified as unlawful so as to vitiate the grant of a warrant for search. Indeed, the information provided by the electrician was itself sufficient for the grant of the warrant irrespective of the police actions. In these circumstances, the court has refused to pass the Bill.