|
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Wheatley
Lord Reed
Lord Carloway
|
[2008] HCJAC 55
Appeal No: XJ358/08
OPINION OF THE COURT
delivered by LORD REED
in
APPEAL BY STATED CASE
by
JACQUELINE MICHELLE
GILLIES
Appellant;
against
PROCURATOR FISCAL, ELGIN
Respondent:
_______
|
Act: Taylor, Solicitor
Advocate; Paterson Bell, Solicitors
Alt: Beardmore, A.D.; Crown Agent
1 October 2008
Introduction
[1] This appeal raises a question of
constitutional law: whether a police
officer is entitled, without a warrant, to enter private property against the
wishes of the householder in order to detain a person under section 14 of
the Criminal Procedure (Scotland) Act 1995.
[2] The appellant
was convicted at Elgin Sheriff Court of a charge in the following terms:
"on
4 September 2007 in 1 Meadow Crescent, Elgin, Moray you JACQUELINE
MICHELLE GILLIES did obstruct Janice Wink and Werner Theron, both constables,
Grampian Police, then in the execution of their duty and did close a door on
said officers when they were lawfully detaining another who was allowed to run
from the officers as a result
CONTRARY to the Police (Scotland) Act 1967, Section 41(1)(a)".
[3] The relevant circumstances,
as found by the sheriff, can be summarised as follows. The appellant is the householder of a flat
located at the address in the charge. On
the date in question, PCs Wink and Theron visited that address in order to
ascertain the whereabouts of James Scott, whom they believed to be the
appellant's boyfriend. They wished to
trace Scott so as to interview him about an allegation that he was responsible
for an act of vandalism committed two months previously. The appellant told the officers that Scott
was not there, and they left. A short
time later they returned in order to ask her if she would consent to their
searching the flat for Scott. When the
appellant answered the door, it was sufficiently ajar for the officers to see
into the hallway. The appellant was
asked if she would consent to a search of the flat. She refused permission. As the officers were speaking to the appellant,
they saw Scott in the hallway. He was
cautioned by PC Theron and told that he was detained under section 14 of
the 1995 Act. Scott was too far away
from the officers for them to lay hands on him when he was told this. Scott then moved briskly up the hallway, away
from the officers. At about the same
time, the appellant shouted "He's not going anywhere", and attempted to close
the front door. She was prevented from
doing so by PC Wink placing her foot in the door. The officers then forced the door open by
pushing against the weight of the appellant, who ended up between the door and
the wall. The officers entered the flat
and found Scott in the kitchen. Scott
was then taken from the flat.
[4] In convicting
the appellant, the sheriff accepted a submission on behalf of the Crown that
Scott's detention was "in place" before the appellant attempted to close the
door, and that the officers were entitled to enter the appellant's house in
order to make that detention "effective".
Before this court, however, the Crown conceded that Scott could not be
said to have been detained at the point when the appellant attempted to close
the door, since he was not then in the officers' custody. That concession appears to us to be
correct: the six hour time limit under
section 14(2), which runs from the time when detention begins, cannot be
understood as being triggered by the utterance of the words "I detain you", if
the putative detainee then runs off and remains at liberty. Section 14(1) requires that a person who
is detained should be taken to a police station or other premises, and the
procedural duties imposed by section 14(6) and (9) are predicated upon
compliance with that requirement; but
the requirement can only be fulfilled if the person is under the control of the
police. That interpretation of the terms
"detain" and "detention" is consistent with their interpretation in other
contexts. In that connection, we note in
particular that the power currently contained in section 14 of the 1995
Act was first introduced by section 2 of the Criminal Justice (Scotland)
Act 1980; and the word "detained", where
used in section 14 of the 1980 Act, was interpreted in Brawls v Walkingshaw 1994 S.C.C.R. 7:
"The
essential element of detention, within the proper meaning of that word, is the
intervention of some outside agency to ensure that the person remains where he
has been put. To detain somebody is to
keep him in confinement or under restraint"
(per Lord
Justice-General Hope at pages 11-12).
[5] In the light
of the concession that Scott had not been detained when the appellant attempted
to close the door, the contention of the Crown before this court was that the
officers were entitled to enter the appellant's house, against her wishes and
without a warrant, in order to detain Scott.
The appellant had therefore obstructed the officers in the execution of
their duty when she attempted to prevent them from entering her house in order
to detain Scott. Although police
officers possessed no statutory right to enter private premises in order to
detain a person, they possessed such a power at common law in circumstances of
urgency. Such circumstances existed in
the present case, since the officers were (in the sheriff's words) "in hot
pursuit". So ran the argument. It was unsupported by any reference to
authority. The contrary argument on
behalf of the appellant was equally unburdened by any relevant
authorities. Our attention was however
directed to the fact that Parliament had conferred on police officers a power
to use reasonable force in exercising the power to detain (under
section 14(8)), but had refrained from conferring any power of entry.
Discussion
[6] Section 2 of the 1980 Act conferred
upon the police entirely new powers of detention and inquiry, which are now to
be found in section 14 of the 1995 Act.
That provision, like its predecessor, makes significant inroads upon
rights of private citizens that are recognised and protected by the common
law. It applies to a person who is
suspected on reasonable grounds of having committed an offence, but who has not
been arrested, and who is, of course, presumed to be innocent. Such a person can be detained and taken to a
police station, held for up to six hours, questioned and searched. He is required to provide information to the
police about his personal details. Force
can be used in order to detain him and search him. Police officers are thus authorised by
section 14 to do several things to private individuals which, in the
absence of statutory authorisation, would amount to delicts actionable in
damages, or restrainable by interdict, at the instance of the person whose
common law rights had been infringed. In
conferring these powers upon the police, Parliament also made elaborate
provision in sections 14 and 15 (and their predecessors) for procedural
safeguards designed for the protection of detained persons.
[7] A person whom
a police officer wishes to detain may be in a public place, or on private
property on to which the officer has been invited (expressly or impliedly) or
where he is entitled to be by virtue of some statutory power of entry. The person may however be on private property
- his own or that of some third party - on to which the officer has not been
invited, and to which he may indeed have been refused entry. If a police officer enters private property
without permission to do so, he is (unless authorised by common law or statute)
acting unlawfully under the civil law: a fortiori, if force is used without
lawful justification. As Brennan J
observed in Halliday v Nevill (1984) 155 C.L.R. 1 at
paragraph 4:
"A
police officer who enters or remains on private property without the leave and
licence of the person in possession or entitled to possession commits a
trespass and acts outside the course of his duty unless his entering or
remaining on the premises is authorized or excused by law."
That principle is, in Brennan J's words, "of ancient origin
but of enduring importance", and forms part of the common heritage of the legal
systems of the United Kingdom and the wider common law world (cf. Entick v Carrington (1765) 19 St Tr 1029, 95 ER 807 ;
Great Central Railway Co v Bates [1921] 3 K.B. 578; Eccles
v Bourque (1974) 50 D.L.R. (3d)
753; Kuru
v State of New South Wales [2008]
H.C.A. 26).
[8] That common
law principle is reinforced by section 6 of the Human Rights Act 1998, in
terms of which it is unlawful for a public authority (such as the police) to
act in a way which is incompatible with a Convention right, such as the right
to respect for one's home under Article 8 of the European Convention on
Human Rights. Article 8(2) requires
that any interference by a public authority with the exercise of that right
must fulfil a number of requirements. It
must, in the first place, be "in accordance with the law": a requirement which entails not merely that
the interference has a legal basis, but that the law meets the tests of
accessibility and foreseeability, and determines with sufficient clarity the
scope of any discretionary authority conferred.
The interference must in addition be "necessary in a democratic society"
on one of a number of grounds, including the prevention of disorder or crime.
[9] It follows
that, in order to enter private property without invitation (and, a fortiori, to enter private property
forcibly and against the will of the occupier), police officers ordinarily
require the authority of the courts in the form of a warrant. A number of statutes also authorise a police
officer to enter premises without a warrant, for particular purposes. In the absence of a warrant, or of statutory authority,
it is only in limited circumstances that a police officer is entitled to enter
private property under the common law.
[10] In the present
case, the officers had obtained no warrant authorising them to enter the
appellant's house: section 14 of
the 1995 Act makes no provision for the obtaining of a warrant to detain or to
enter premises for that purpose. Nor
does section 14 make provision for a power of entry on to private
property. No contention was advanced in
the present appeal that such provision was implicit in section 14; and we could not in any event have accepted
such a contention. As we have mentioned,
Parliament has in other contexts authorised entry by police officers upon
private property for purposes intended to assist in the investigation or
suppression of crime. Parliament's
omission of any such power from section 14 is unlikely to have been
unintended, particularly in the context of the elaborate provision made in
respect of the procedure to be followed on detention, and the conferral of an
express power to use reasonable force in exercising the power to detain. Parliament cannot have considered that a
power of entry would necessarily follow from the creation of a power to detain,
by analogy with the power of entry attendant (at least in certain
circumstances, as explained below) upon the power to arrest: detention was not created as a statutory
substitute for arrest, but was a novel concept, of a different legal nature. To treat a power of forcible entry on to
private property as implicit in the legislation would also be contrary to the presumption
noted by Brennan J in Halliday v Nevill at paragraph 15:
"The
common law presumes that when Parliament creates a novel power, it does not
intend thereby to authorize the commission of a trespass to facilitate its
exercise: Morris v Beardmore [1981]
A.C. 446; Colet v The Queen (1981)
119 DLR (3d) 521 . The general protection
which the common law accords to persons in possession of private property is
undiminished by the creation of the novel power unless Parliament expressly
provides otherwise."
Reference might also
be made to the speech of Lord Scarman in Morris
v Beardmore at page 463:
"When
for the detection, prevention, or prosecution of crime Parliament confers upon
a constable a power or right which curtails the rights of others, it is to be
expected that Parliament intended the curtailment to extend no further than its
express authorisation. A constable, who
in purported execution of his duty has infringed rights which Parliament has
not expressly curtailed, will not, therefore, be able to show that he has acted
in execution of his duty, unless (and this will be rare) it can be shown by
necessary implication that Parliament must have intended to authorise such
infringement ...
[I]t
is not the task of judges, exercising their ingenuity in the field of
implication, to go further in the invasion of fundamental private rights and
liberties than Parliament has expressly authorised."
[11] There remains
the question whether, as was submitted on behalf of the Crown, the actions of
the police officers in the present case were authorised by the common law. In that regard, a general statement of
principle can be found in Renton &
Brown's Criminal Procedure, 6th edition, at paragraph 7-05:
"Where
the constable is carrying out an arrest for a serious crime, but not for a mere
breach of the peace or other minor offence, he may force entry into premises
without warrant if refused admission".
That statement is amply supported. Hume, in his discussion of arrest without a
warrant, states (Commentaries on Crimes, II.76):
"As
to the breaking open of doors on such occasions, I have not found any
authority, to warrant a constable in doing so, in his pursuit of one who flies
after committing a breach of the peace ...
But it is not to be imagined, that a constable shall be subject to the
like restraint in cases of murder, housebreaking, robbery, or the like,
committed in his presence, or known to him by complaint of others who were
present, or have been the sufferers on such occasions."
Alison is to similar effect (Criminal Law, II.118):
"As
to the power of breaking open doors in pursuit of a criminal on such occasions,
it is undoubted, that in cases of murder, robbery, housebreaking, rape,
fire-raising, treason, or the like, which by their violence threaten the peace
of society, he may break open doors where the fugitive has taken refuge, or he
has received reasonable information he has taken refuge, without any warrant at
all. But this does not hold with persons
charged with a breach of the peace, unless he actually hears a tumult or affray
going on, when it becomes his duty to break in to prevent a breach of the peace."
MacDonald's Criminal
Law (5th edition, p.197) states the general principle in similar
terms to Renton & Brown:
"In
cases of serious crime officers may without a warrant break open doors and
enter premises incidentally to the apprehension of an offender. But in mere breaches of the peace they may
not break in, except to quell a disturbance actually proceeding."
A relatively recent example of the application of that
principle is the case of Campbell v Vannet 1997 S.C.C.R. 787, where officers
who had just seen a serious crime (of supplying or offering to supply heroin)
being committed from within premises were held to be entitled to force entry to
the premises with a view to apprehending the person who was suspected of having
committed the crime. In the present
case, on the other hand, the officers did not enter the premises for the
purpose of making an arrest; nor, in any
event, was Scott suspected of having committed a serious crime. There is no question in the present case of
the officers having entered the premises in order to quell a disturbance (cf. Smith v Hawkes (1980) S.C.C.R. Supp. 261;
Moffat v McFadyen 1999 G.W.D. 22-1038, BAILII: [1999] ScotHC 117).
The common law principle which we have discussed therefore has no
application.
[12] It is
unnecessary for us to consider another line of authority, concerned with the
admissibility of evidence recovered in circumstances of urgency by entering
premises without a warrant (e.g. McPherson
v HM Advocate 1972 S.L.T. (Notes)
71; Cairns
v Keene 1983 S.C.C.R. 277). Whether or not officers entering premises for
that purpose might, in some such circumstances, be regarded as acting in the
execution of their duty is not a question which need be considered in the
present case, where the officers had no such purpose in mind.
[13] We also
require to note the case of Turnbull v
Scott 1990 S.C.C.R. 614. The circumstances were that police officers
had gone to the appellant's house in order to detain him under section 2
of the 1980 Act. They obtained no
response after knocking at the front door, although at one point the appellant
appeared at an upper window. Finding the
back door ajar, the officers entered the house through the open door "and, this
is important, they did so because they were unsure whether the appellant was
still in the house or had gone away" (per
Lord Cowie, delivering the opinion of the court, at page 617). The court held that the officers were acting
in the execution of their duty when they crossed the threshold. The court stated (at page 617) that the
question whether the police have acted unlawfully and gone beyond the execution
of their duties in entering premises without a warrant must be dependent on the
particular circumstances of each case.
That is of course correct; but
the relationship between those circumstances and the answer to the question
must depend on a principle of law. In
the absence of any clear indication of what that principle might be, the
decision in Turnbull is of limited assistance. It is however apparent that the court
regarded as important the finding that the officers entered the house because
they were unsure whether the person they wished to detain was still there or
had gone away. The court also considered
that "obviously" the position might have been different if the officers had
been told to leave or if the door had been closed (which suggests that the
decision might be explained on the basis that a licence to enter the house had
impliedly been given).
[14] If, then, no
existing common law principle authorises police officers to enter private
property in order to detain a person, the question might be asked whether the
common law ought to be developed by this court so as to confer such authority
(e.g. by drawing an analogy between arrest and detention, or between search and
detention). In our opinion that would
not be appropriate. As Lord Scarman
indicated in Morris v Beardmore at page 463, in the
dictum which we have already cited, it is not for the courts to alter the
balance between individual rights and the powers of public officials. We also note that any such development of the
common law would involve an interference with Convention rights protected under
the Human Rights Act 1998: in
particular, the right guaranteed by Article 8(1). (Article 7 might
also be engaged, in so far as such a development had the effect of
criminalising the conduct of a person resisting what would otherwise have been
a trespass). The law authorising such an
interference must, as we have explained, meet Convention requirements of
accessibility, foreseeability and clarity, and must also meet the Convention
test of necessity. In that regard, we
note the observations of Lord Bingham of Cornhill in R (Laporte) v Chief Constable
of Gloucestershire [2007] 2 AC 105 at para.52, where police powers to
control demonstrations were in issue:
"I
would add, lastly, that if (on which I express no opinion) the public interest
requires that the power of the police to control demonstrations of this kind
should be extended, any such extension should in my opinion be effected by
legislative enactment and not judicial decision... The Convention test of necessity does not
require that a restriction be indispensable, but nor is it enough that it be
useful, reasonable or desirable: Handyside v United
Kingdom (1976) 1 EHRR 737, para 48; Silver v United
Kingdom (1983) 5 EHRR 347, para 97.
Assessment of whether a new restriction meets the exacting Convention
test of necessity calls in the first instance for the wide consultation and
inquiry and democratic consideration which should characterise the legislative
process, not the more narrowly focused process of judicial decision. This is not a field in which judicial
development of the law is at all appropriate."
Conclusions
[15] For these reasons, we are of the opinion
that the police officers possessed no authority to enter the appellant's house
on the occasion in question. It follows
that they were acting unlawfully, and that she was entitled to close her front
door so as to prevent them from entering her house notwithstanding her refusal
of permission.
[16] The questions
asked by the sheriff in the stated case are:
(1) Was I entitled to repel the submission
of No Case to Answer made in terms of Section 160 of the Criminal
Procedure (Scotland) Act 1995?
(2) Was I entitled to convict the Appellant?
We shall answer those questions in the negative, and quash
the conviction.
