Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2018/[2018]_HCJAC_45.html
Cite as: [2018] HCJAC 45, [2018] ScotHC HCJAC_45, 2018 GWD 27-341, 2019 SCCR 1

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Menzies

Lord Turnbull

[2018] HCJAC 45

HCA/2017/449/XC

OPINION OF THE COURT

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

SECTION 74 APPEAL

RAYMOND KYLE

against

HER MAJESTY’S ADVOCATE

Appellant

Respondent

Appellant: Mackintosh; McCusker McElroy & Gallanagh

Respondent: Fraser AD; Crown Agent

14 September 2017

[1] The appellant and a co-accused are charged with being concerned in the supply of a

Class A drug, namely Diamorphine. A First Diet on 10 July was continued to 17 July for

evidence of a police constable, PC Scott Sweetin, and for debate on a preliminary issue

raised by the defence challenging the admissibility of certain evidence upon which the

prosecution rely. That evidence related to the finding by police of bags of brown powder in

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the appellant’s house, following an entry which was forced for the preservation of life or

property. This turned out to be heroin and the recovery provided the evidential basis for the

charge. Following the finding of this item, the police immediately took no further action

other than to obtain a search warrant.

[2] The sheriff ruled that the evidence was admissible, and this appeal relates to that

decision. It was maintained that (a) the officers did not have sufficient grounds for forcing

entry to the property; and (b) that in any event, once they had entered the property and

found no-one there, the police should have left, and the actions which led to the recovery of

the drugs being neither reasonable nor necessary, the evidence should not be admitted.

[3] The circumstances were that PC Sweetin had been allocated a missing persons

inquiry of a “high risk” nature which is a categorisation given when there is understood to

be a fear of risk to the life and safety of the individuals concerned. With a colleague he went

to the property. He was unable to gain entry to the property, there being no response to his

knocking, and he could not see into it. He was aware that there was a dog inside, because he

could hear it barking. Inquiry with the neighbours indicated that the occupiers had not been

seen since the missing persons report had been made. PC Sweetin was advised by his

superior officer that there had been threats made against the individuals concerned. He was

instructed to gain entry. In evidence he stated that he did so because he understood he had

common law powers to do so if there were concerns for the safety of individuals, and he

wished to check that no harm had come to the persons who were the subject of the missing

persons inquiry. He considered that they could be lying hurt inside the property. It is

important to note that the officers were not investigating a crime, but proceeding on the

basis of concern for life and safety of individuals. It is also important to note that the sheriff

was satisfied that they were acting in good faith. Against that background the officer forced

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entry. Counsel submitted that the appropriate test for whether PC Sweetin was entitled to

force entry in the circumstances of this case could be found in Paton v Dunn 2012 SCCR 441,

paragraph 9:

“We note the opinion of the court in Turnbull v Scott that there is no absolute rule

that police officers may only enter private premises if they have a warrant or

statutory authority to do so; that, in the absence of such authority, their right

depends on the circumstances; and that one of the important circumstances is

whether they are acting in the execution of their duty. … It is plain that

circumstances will regularly occur in which it will be appropriate for police

officers to implement their duty to protect life by taking reasonable steps designed

to achieve that end. The question will generally be whether the police officers had

reasonable grounds for taking the intrusive step they did of forcing entry to a

private dwelling.”

In our view the sheriff was entitled to conclude that there were reasonable grounds for

doing so in this case.

[4] Once inside the property, the officers found that the front door had been barricaded

by a sofa. They found that the back door was similarly barricaded. This, incidentally, might

well have given an increased basis for concern. The officers found dog faeces and urine in

the living room, the number of these suggesting that the dog had been there untended for

some time, at least a day. They looked in the rooms and found no one. In the kitchen,

PC Sweetin gave the dog some water, and decided to look for food for the dog. He also

decided to look for documents which might disclose the whereabouts of the individuals. He

opened a cupboard and found the brown powder which turned out to be heroin. It was

accepted that had the officers found documents lying about that would have been within the

acceptable limits of what they were entitled to do. It was also accepted in relation to both

parts of the argument that the threshold for intervention for the preservation of life or

property was not the same as that for the investigation of crime. However, it was submitted

that opening a cupboard – either to look for documents or to feed the dog – went beyond it.

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We are unable to accept that argument. In assessing the actions of the police it remains

relevant that they were not investigating a crime, as is the fact that they were acting in good

faith in this regard. They had lawfully entered the property in pursuit of their duty to

protect life and in our view looking in the cupboard for dog food – or documents to help

trace the occupants- was not unreasonable and did not constitute an unlawful invasion of

the occupiers’ privacy.

[5] Even if we were in error in reaching this latter conclusion, the minimal nature of the

intrusion once inside the property, and the whole circumstances, would have made the

actions readily excusable.