First Appellant: Alonzi, advocate; Lawson Coull & Duncan

Second Appellant: McCluskey; Muir Myles Laverty

Respondent: Prentice QC, AD; Crown Agent

1 May 2014

Introduction

[1] These are appeals, at the instance of JL and EI, in terms of section 74 of the Criminal Procedure (Scotland) Act 1995, against a decision made by the sheriff at Dundee at a first diet in a case where the two appellants had been indicted on a charge of assault to injury and permanent disfigurement. The respective notes of appeal are in identical terms. The submissions made by Mr Alonzi, on behalf of the first appellant, and Mr McCluskey, on behalf of the second appellant, overlapped.

[2] Both appellants had given notice, by way of minute, as is provided for by section 71(2) of the 1995 Act, that they wished to raise certain preliminary issues relating to the admissibility of evidence sought to be relied on by the Crown which had been obtained by police officers following upon the appellants' detention in terms of section 14 of the 1995 Act and their conveyance to Bell Street police station some five days after the alleged assault. These issues were canvassed before and determined by the sheriff at a hearing which, as he explains in his report, extended over three days. However, the sheriff's determination of only one of these issues is the subject of appeal. As it is identified in the minute for the first appellant that issue was as follows:

"Police officers unlawfully took possession of and interrogated the Minuter's mobile phone. Detective Constables Gareth Ewing and Sharon Mitchell, Crown Witnesses numbers 22 and 23 respectively, were requested by a Police Sergeant Winter (who is not a Witness in these proceedings) to examine a mobile phone which was within the Minuter's property when she was presented at the Charge Bar in terms of section 14 of the Criminal Procedure (Scotland) Act 1995. The Minuter's permission was neither sought nor obtained to allow her phone to be interrogated and the said Officers carried out the interrogation of her mobile phone without the authority of a properly obtained and executed Warrant. Various pieces of data were thereafter copied from the said mobile phone by Detective Constable Robert O'Donnell and Police Sergeant Robert Prudom, Crown witnesses numbers 18 and 19 respectively and recorded on disc form, Label number 8 on the Crown's List of Productions. The information contained within the said disc was thereafter passed to Officers carrying out interviews of the Minuter and were put to her. The Minuter complains that the seizure and interrogation of her phone was unlawful and that all evidence obtained during said procedures is unlawful, ought not to be admitted in evidence and ought not to have been used in her interrogation by Police Officers".

[3] On 28 February 2014 the sheriff dismissed the minute. He granted leave to appeal in terms of section 74(1) of the 1995 Act.

Procedure before the sheriff

[4] The case called for a first diet on 26 November 2013. After a number of adjournments consideration of the section 71 minute was continued to the trial diet. The hearing in terms of section 71 was commenced on 11 February 2014 with the leading of a witness for the Crown. A further six witnesses were led for the Crown on 12 February 2014. On 13 February 2014 and again on 14 February 2014, the first diet was adjourned by reason of the ill-health of the first appellant. On 28 February 2014 a further witness was led for the Crown. Both appellants also gave evidence. The sheriff then heard submissions after which he dismissed the minute.

Ground of appeal

[5] The grounds upon which the appellants appealed to this court are set out in their respective notes of appeal as follows:

"that the ground of submission raised at the First Diet was that Police Officers had unlawfully accessed a mobile telephone belonging to the [first appellant]. From said telephone the Police Officers had accessed a text conversation between the two accused. Said text conversation had been transcribed into a document namely Crown Production 11. That document was shown to accused prior to her interview by Police Officers. It was submitted on behalf of the appellant that the Police Officers had no lawful authority to examine the contents of said mobile phone and accordingly, it was submitted that Police Officers had acted unlawfully in so doing. It was also submitted that the interview conducted by Police Officers with the appellant should be held as inadmissible given that the unlawfully obtained material had been used in the course of the interview with the appellant".

......

"that the [first appellant] appeals to the High Court of Justiciary against that decision on the following grounds. It is respectfully submitted that the Sheriff has erred in dismissing the Section 71 Minute. It is respectfully submitted that Police Officers had no authority to allow them to examine the mobile telephone without either seeking the permission of the [first appellant] or alternatively seeking a warrant to allow them to do so. It is respectfully submitted that there is no power in terms of Section 14 of the Criminal Procedure (Scotland) Act 1995 that allows a Police Officer to examine the contents of a mobile telephone".

Submissions

First appellant

[6] Mr Alonzi began by summarising the circumstances in which the appellants had been detained on 28 December 2013. As the sheriff had reported, suspicion had fallen on the appellants partly because of information gleaned from social media including Facebook. The mobile which had been seized by the police had been an iPhone 5 which the first appellant had only recently acquired. It was important to understand what this device was. It was not just a mobile phone. It was a "Smartphone", a portable computer in effect, but a computer that was continuously connected to the internet. It provided access to email as well as social media sites including Twitter and Facebook. Potentially at least, it might provide access to personal banking details and health records. It provided means of storing still and moving images and audio files. It was very different from the Memomaster electronic diary which was considered in the case of Rollo v HM Advocate 1997 SLT 958. It was not static in that, for example, a personal calendar might be updated by persons other than the owner of the phone. It was a "living filing cabinet". It could not be compared to, for example, a letter or a paper diary. In the present case the police had no authority for "going into the phone". What that involved was going into the first appellant's "private cyber-space". There was no authority for that. The first appellant's privacy required to be protected. Valuable information was held on the phone, including video footage which had to be safeguarded from corruption. The police had not even asked the first appellant's permission before accessing the phone. They could have obtained a warrant but they did not do so. This had not been a case of urgency. The evidence obtained as a result of this unauthorised search was accordingly inadmissible.

Second appellant

[7] Mr McCluskey began by addressing the question of urgency. The appellants had been detained in terms of section 14(1) of the 1995 Act. That provision authorised their detention for a period of 12 hours: section 14(2). However, section 14A(2) gives power to a custody review officer to extend the period of detention for a further 12 hours, provided that he is satisfied that the conditions specified in section 14A(4) apply. Here that power had not been exercised. Had there been a genuine issue of urgency, the obvious first step would have been to extend the period of detention. As that step had not been taken, it was to be inferred that there had been no urgency.

[8] Mr McCluskey adopted Mr Alonzi's submissions with one exception: he could not agree with Mr Alonzi that there was a material distinction which could be made between a Smartphone such as the iPhone 5, on the one hand, and a computer, laptop or tablet, on the other, on the basis that a Smartphone (switched on) can be in constant contact with the internet, whereas other devices depend for their internet connection on broadband or WiFi links. The distinction which was important, according to Mr McCluskey, was between information "held" on a particular device (such as the messages sent to and from the first appellant's iPhone 5) and information which can be accessed by that device, for example, the information on the first appellant's Facebook page. As Mr McCluskey explained the matter to us, the first appellant has a Facebook account. Accordingly, she has a Facebook page, that is a webpage containing information particular to her. Depending on the privacy settings which the first appellant has imposed (about which we were told nothing) some people will have access to some of that information but others will not. Access to the first appellant's Facebook page can be had using any device with an internet connection. However, access to the information on the page is controlled by the privacy settings. That restriction does not apply when the first appellant's Facebook page is accessed using the first appellant's iPhone. Thus, by accessing the first appellant's Facebook page using the first appellant's iPhone, the police were able to circumvent such restrictions which the first appellant had put in place by adopting particular privacy settings. According to Mr McCluskey, the police had originally intended to access the first appellant's Facebook page and also to interrogate the phone with a view to ascertaining its whereabouts at relevant times by reference to geo-positioning data, albeit that the evidence to which objection had been taken consisted of the contents of messages viewed by looking at the phone and transcribed by a police officer (for this information Mr McCluskey relied on his interpretation of the witness statement of the detective sergeant who had instructed officers to examine the iPhone 5). These text messages, Mr McCluskey conceded, were to be regarded as "held on" the iPhone. That did not matter. When they accessed the iPhone the police had intended to view the first appellant's Facebook page. That was an unlawful act for which they had no authority and that illegality tainted everything which followed. It might have been different if the police had only ever intended to access the text messages, although Mr McCluskey made no concession on that. What mattered was whether the police had lawful authority at the point when they began the interrogation of the phone. If the case had only concerned a device containing material which had been downloaded, it would have been "a different ballgame". However, that was not the present case. Here the police had intended to interrogate the phone in order to access "virtual material". This was of the nature of an interception of a communication: cf R v Coulson (Andrew) [2013] 2 CrApp R2. For that the police required a warrant which they did not have. The evidence acquired as a result of the unlawful conduct on the part of the police officers was accordingly inadmissible.

Respondent

[9] The advocate depute submitted that it was important to bear in mind the precise terms of the note of appeal which is under consideration, which he presumed had been carefully drafted by counsel. The proposition founded on in the note of appeal was that the police "had no lawful authority to examine the contents of said mobile phone". The first appellant had been detained under section 14 of the 1995 Act. Accordingly, the police had the same powers of search as are available following an arrest: section 14(7)(b), Jackson v Stevenson (1897) 2 Adam 255 at 260. The evidence objected to was data in the form of text messages which, it had been conceded, at least on behalf of the second appellant, could be the subject of such a search as a police officer is empowered to carry out following an arrest (transmitted text messages being among the contents of the mobile phone). There was accordingly no substance in the appeal. Interesting as the arguments deployed on behalf of the appellants may be, they were for another case on another day.

Discussion

[10] Implicit in the appellants' submissions were at least two propositions both of which we would take to be uncontroversial. The first proposition is that any interference with a person's lawful possession of an item of moveable property without sufficient justification constitutes a legal wrong and if the nature of the interference includes examination of the object with a view to discovering information which it is reasonably apparent is confidential in nature, that constitutes an additional wrong. The second proposition is that in criminal proceedings when evidence has been obtained as a result of a wrongful act or other irregularity on the part of a public authority, that is a strong factor pointing to the evidence being inadmissible in the event of objection on the part of the accused. To these propositions may be added a third: where evidence is seized by a public authority acting under a power of search conferred by common law or by statute or by order of the court (a warrant) then that is sufficient justification to render lawful what might otherwise be unlawful acts, thereby eliminating a possible ground of objection to the admission of the evidence in subsequent criminal proceedings.

[11] A power of "search" of the person comprehends looking for an item (going through pockets, for example: Bell v Leadbetter 1934 JC 74 at 77), seizing it and examining it. Accordingly, if a police officer has lawfully arrested a person that officer may in exercise of the common law power of search following an arrest take possession of the person's jacket or handbag, look inside the jacket pocket or handbag and, on finding, for example, a diary, examine the entries made in that diary with a view to these entries forming a basis for a further inquiry or being admitted as evidence in future criminal proceedings. By virtue of section 14(7) of the 1995 Act, police officers have the same power following a detention. No speciality is introduced simply because what is found in the jacket pocket or handbag is a diary or notepad in electronic form, such as the Sharp Memomaster 500 discussed by the court in Rollo v HM Advocate (supra). The issue in that case was whether what was described as an electronic diary fell to be regarded as a "document" for the purposes of a warrant issued in terms of section 23 of the Misuse of Drugs Act 1971. The court held that it was a document and that was so notwithstanding the fact that the secret part of the device where incriminating information had been found was password protected against unwanted access and that the evidence founded on by the Crown had only been retrieved by guessing the password without the co-operation of the accused. Seizure of the evidence was accordingly authorised by the search warrant and the evidence was admissible. The court observed (at supra 960G):

"It does not matter if, to be meaningful, the information requires to be processed in some way such as translation, decoding or electronic retrieval".

[12] None of this was challenged by Mr Alonzi and Mr McCluskey on behalf of the appellants. Rather, counsel founded their submissions on a number of factual assertions about the capabilities of the iPhone 5 which had been seized by the police, the characteristics of social media sites and, in particular, Facebook, and the intentions of the police officers when they began their interrogation of the device. They distinguished between data "held" on this particular iPhone and data, confidential to the first appellant, which although not held on the iPhone could be accessed using it. One difficulty about counsel's approach was that it depended upon matters of fact which are not subject to any finding made by the sheriff and contained in his report. We do not suppose this to be due to any failure on the part of the sheriff. He heard the evidence of eight witnesses for the Crown and two for the defence in relation to the various issues which had been raised by the appellants, but we assume that this evidence had not been focused on the technology relevant to the use of the iPhone 5 or, indeed, the precise intentions of the police and exactly what they did in furtherance of these intentions. No doubt there was reason for that. Such evidence would not have been necessary in order simply to present and respond to the submissions advanced before the sheriff which are narrated in his report. As appears from that report, what was put forward before him was a challenge "to the action of accessing these electronic devices (as they put it 'interrogating') to download or read and transcribe any data stored in the memory". That formulation is reflected in the note of appeal where the submission to the sheriff is summarised as being that "the police officers had no lawful authority to examine the content of the mobile phone", a submission which is essentially repeated in the note of appeal as the grounds of appeal before this court. Thus, the submission developed by counsel before us, depending as it did on a distinction between data which could be accessed from the iPhone 5 independent of any connection with the internet (which might be recoverable in terms of the section 14(7) power of search) and data which could only be accessed by virtue of an internet connection (which, according to counsel, was not recoverable by virtue of the section 14(7) power) is not at all foreshadowed by the note of appeal. It is therefore not available to the appellants in this appeal. However, had that submission been properly focused as a ground of appeal we could only have considered it had there been sufficient findings in fact as to the relevant technology, the actions and intentions of the police and, if the first appellant's Facebook page was to feature in the argument, how that webpage is configured with a view to giving or restricting access to information recorded on it. There are no such findings.

[13] With no findings in fact or ground of appeal to support the submission advanced on behalf of the appellants, we are left with what we took to be conceded and which is what we would have in any event understood from the note of appeal and the sheriff's report, that the data subject to challenge, being in the form of text messages, is information which was "contained" within the iPhone 5 in digital format. The section 14(7) power of search includes power to examine. What will be required for the effective examination of a particular item will depend on the nature of that item and what is the nature of the information which it is hoped to elicit from the examination. For all that we were told, in the present case, examining the iPhone 5 involved little more than connecting the device to a power supply, switching it on and touching the appropriate portions of the screen. In our opinion, so doing was clearly within the powers conferred by section 14(7). We are not satisfied that there was any illegality or irregularity in recovering the evidence objected to. In our opinion the evidence is admissible. We agree with the conclusion of the sheriff and accordingly refuse the appeal.