APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Mackay of Drumadoon Lady Smith	[2012] HCJAC 135 Appeal No: XC404/12 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in APPEAL UNDER SECTION 74(1) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 by SAMUEL FREEBURN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: A Ogg (Solicitor Advocate); Paterson Bell (for Tod & Mitchell, Paisley)

Respondent: A F Stewart, QC, AD; the Crown Agent

24 October 2012

General

[1] The appellant is charged at the High Court in Glasgow with a variety of drugs and firearms offences, all stemming from the search of his house at 114 Oron say Avenue, Port Glasgow on 9 and 10 May 2011. During the course of the proceedings objection was taken to the legality of that search and to the admissibility of items recovered. Evidence in that connection was heard at a preliminary hearing on 2 and 3 July 2012, after which the judge at first instance repelled the objection.

Evidence

[2] It was not disputed that, at or about 8.30pm on 9 May 2011, a police 999 call operator received an anonymous telephone call stating that a named person was being held at the appellant's house. The precise address and the name of the appellant were given. A transcript of this call was made available to the court. This made it clear that the caller was also saying that there were substantial quantities of drugs, in the form of cocaine and amphetamine, in the house along with firearms. The latter were specified as including a 9mm Beretta, two shotguns and a sniper rifle with silencer.

[3] The information was passed by the operator to a sergeant at Greenock police station. He in turn contacted his inspector, who was at Johnstone. The inspector went to Greenock to take charge of the enquiry. The police were able to ascertain the identity of the caller and he was traced to a local pub. He attended voluntarily at Greenock police station at about 9.45, when he confirmed the accuracy of his telephone call. He provided a statement at about 11.00pm. Meantime, the police had taken further action to confirm the veracity of the information by searching their databases to see if there was any further material which might support the claims. None was found other than confirmation that the appellant lived at the address specified. However, plain clothed officers were dispatched to the address in order to look for any untoward signs. They arrived there at about 10.00pm. Uniformed officers were also engaged, and they approached the door with the inspector and sergeant at about 10.45pm. No application for a warrant to search the premises had been made. The door was opened by the appellant, who was accompanied by a large dog.

[4] The police, notably the inspector and the sergeant, gave evidence that their primary objective in calling at the house was to ensure that no one was being held there against his will. They said that they wished to enter the house in order to ascertain the true position. They told the appellant about the allegation of the detention of a person but made no mention of either drugs or firearms. They asked the appellant to place the dog in a room to enable them to enter the house. At this point the appellant closed the door and, as requested, placed the dog in an upstairs room. He then returned to the door and admitted the officers. It was accepted that the police had not specifically advised the appellant that he could refuse to allow them entry. The police repeated their testimony that they had proceeded without a warrant because of the urgency of the report which they had about a detained person.

[5] Having been admitted, the police looked in the various rooms to see if anyone was being held within the house. This included opening large cupboards and looking under beds. The last act in this brief operation involved opening the door of the room in which the dog had been placed. On looking into this room, the police discovered a cannabis cultivation system with around twenty plants. At that point the occupants of the house were detained under section 23 of the Misuse of Drugs (Scotland) Act 1971. The appellant then indicated to the police the whereabouts of a quantity of amphetamine, some shotgun ammunition and what is described as an antiquated firearm. The police thereafter sought to obtain search warrants in terms of the misuse of drugs and firearms legislation. After contacting the duty procurator fiscal, these were obtained, from a sheriff, at about 2.40am on 10 May 2011. Only then was the house formally searched for evidence of illegal drug or firearms activity.

[6] The appellant's evidence told a different story in certain material respects. He said that the dogs, which he had in his house, had responded in a lively manner to the police knocking at the door. He had opened the door a little and was told by the police that they had reason to believe that he had abducted someone. The police said they had to come in and search the house. The appellant had asked if they had a warrant and had been told that the police did not need one and that they would search the house with or without one. The appellant had been asked to put the dogs away and the appellant had done so. When he returned to the front door, the police simply pushed their way into the house without the appellant's consent. This was also the evidence of the appellant's partner. She had said, as the appellant too had testified, that the police had stipulated that they did not need a warrant. It is of importance to note that the appellant made no complaint that he had in some way been deceived into thinking that he required to permit the police entry into his house. On the contrary, his position was that his consent was neither sought nor given.

First Instance Findings

[7] The judge at first instance did not accept the appellant's account of the incident, nor did he find the appellant's partner to be credible or reliable. His reason for the latter was that her testimony differed significantly from the other witnesses, including the appellant. The judge preferred the evidence of the police, that there had initially been a discussion of sorts at the door while the dogs were loose, but that the appellant had permitted the officers to enter the premises after he had locked the aggressive dog in an upstairs bedroom. The judge concluded that the action of putting the dog away in a room only made sense as a prelude to allowing the officers into the house at their request. That is how the police had described the episode at the door and that is what the judge found in fact.

[8] The judge at first instance accepted that the concern of the officers had been to ensure the safety of a person, who had reportedly been detained at the appellant's address, and not to search for drugs or firearms. He did not consider that there had been any misrepresentation made by the police in order to secure admission to the house and that the police actions, in conducting a quick and cursory search of each room after entry, were consistent with their stated concern. All that they had done after entry was to look around each room, rather than to conduct any form of drug or firearm search, as such searches are normally described. The judge attached no significance therefore to the police declining to mention any information about firearms or drugs. The judge specifically rejected the claim that the police had simply barged into the house, saying that they did not need a warrant. Indeed, although one of the officers had made reference to the police stating that they could "easily" obtain a warrant, the judge rejected that evidence and, in any event, stressed that this was not even the appellant's position.

[9] Having accepted the essentials of the police testimony, that they had gone to the house with a view to ascertaining whether a person was being held there against his will and had been admitted to the house with the consent of the appellant, the judge concluded that the search was lawful and that any evidence flowing from it, and in particular from the results of the subsequent search under warrant, was admissible. Furthermore, even if there had been some irregularity in the actions of the police, the judge reasoned that there had been a degree of urgency in the circumstances of the case, such as entitled the officers to act under their powers at common law. Although it had been submitted to him that the police had not acted in an urgent manner, this contention was rejected by the judge having regard to the various timings set out above and to the reasonableness of taking rational and necessary steps to ensure that any risk posed by the occupants of the house, notably in relation to firearms, was properly understood. Finally, even if the actions of the police had been unlawful, the judge founded upon the principles enunciated in Lawrie v Muir 1950 JC 19, to the effect that any irregularity could be excused having regard to the urgency of the situation. In particular, as distinct from the particular facts of Lawrie, there had been no deception on the part of the police, who had been acting throughout in good faith. The public interest in ensuring that a person's life was not in danger outweighed the appellant's private interests. The judge held, in general, that the appellant had not been treated unfairly and that accordingly the evidence of the subsequent search and recovery of items was admissible.

Submissions

[10] The appellant advanced two submissions. The first was that the judge at first instance had erred in his assessment of the credibility and reliability of the police, as set against the version of events spoken to by the appellant and his partner. This submission, which was primarily directed to the question of whether the appellant had consented to the entry of the police into the house, was not developed further. This is perhaps understandable in the circumstances, given that assessment of the credibility and reliability of the officers and the appellant and his partner was primarily for the judge at first instance, who had the advantage of hearing and seeing the witnesses and assessing all the evidence in the case, to carry out. The judge gave adequate reasons for his conclusion relative, in particular, to the question of consent. This reasoning, in relation to the appellant's action in putting the dog into a room as demonstrating his consent, cannot be faulted and it provides a sufficient basis for the judge's ultimate conclusion of fact that consent had been given. This submission must therefore be rejected.

[11] The second submission was that it was not enough that the appellant had consented to the officers entering his house. The police normally required a warrant to enter private property without consent (Gillies v Ralph 2008 SCCR 887, Lord Reed, delivering the Opinion of the Court, at para [9]). The proposition was that any consent had to be "informed". The police had to have advised the appellant that he had the right to decline their request for entry. The failure to admonish the appellant about his right of refusal was fatal to the admission of the evidence. It was accepted that, at the point when the police went to his door, the appellant was a suspect. Therefore, on an analogy with the police questioning of suspects, he required to be so admonished (Brown v Glen 1997 SCCR 636, Lord Sutherland, delivering the Opinion of the Court, at 640). Not only had the appellant not been advised of his right to decline the police request, there had been misrepresentation in that the police had not advised the appellant of the information about drugs and firearms. Had he been so advised, the appellant might have declined the police entry. In these circumstances, following Lawrie v Muir (supra), there was no scope for excusing the irregularity of the search.

[12] In reply, the Crown stressed, as the judge at first instance also had, the duty upon the police to protect life contained in section 17 of the Police (Scotland) Act 1967. Following the reasoning in Pham Ngoc Meo, also known as Son Gnoc v Her Majesty's Advocate, High Court, 19 July 2012, unreported, the police had the same powers to enter upon private property as an ordinary citizen. They could do so, provided they were acting in good faith, in order to ascertain, amongst other things, whether an offence was being committed and, in particular, if life was being endangered. In the latter situation, they were entitled to break into premises without warrant in the event of urgency (Paton v Dunn 2012 SCCR 441). No misrepresentation had been made. The judge had held that the police's primary concern had been the protection of the person said to have been detained. Their actions in looking around the house were consistent with that position, as distinct from one involving a search for drugs or firearms. There was urgency, standing the information that the police had received. It could not be said that they had behaved in an unreasonable manner. Even if entry to the house had been irregular, following Lawrie v Muir (supra), any such irregularity ought to be excused, since it had not involved any unfairness in the police's dealings with the appellant. Upon specific enquiry by the court, the Crown submitted that, where the police requested entry to private premises, there was no legal requirement that they should advise an occupant of any right to refuse to comply with the request.

Decision

[13] Ultimately, the facts, as found by the court of first instance, reveal that this is a straightforward case in which the police had intelligence that a person was being held against his will in the house of a person who was in some way involved in drugs and had access to firearms. The police were therefore in a situation whereby they were entitled to take urgent action to prevent harm coming to that person. In that type of situation, provided (as here) that they acted in good faith, the police would have been entitled, even in the absence of consent on the part of the householder and without a warrant, to force entry in order to prevent serious harm occurring (Pham Ngoc Meo, also known as Son Gnoc v Her Majesty's Advocate, High Court, 19 July 2012, unreported). However, that is not what happened here.

[14] The police asked the appellant if they could enter the house with a view to looking for a person being held there. The judge at first instance found that the appellant had consented to that action. In that situation there was no illegality or irregularity in the police action, and therefore no question that the evidence subsequently obtained should be rendered inadmissible.

[15] Where the police request entry to private premises, the owner or occupier of those premises is entitled to refuse the police entry. In that event, and where the premises are securely closed against entry, the police will normally require to obtain a warrant to overcome the refusal (Gillies v Ralph 2008 SCCR 887, Lord Reed, delivering the Opinion of the Court, at para [9]) or security. However, no warrant is needed where a valid permission to enter is given. The police cannot secure consent by deliberately making misrepresentations of fact, including statements suggesting that they do not require a warrant or already have one (eg Lawrie v Muir 1950 JC 19). However, there was no misrepresentation in this case and no obligation upon the police to divulge to the householder their intelligence about drugs or firearms. There is no legal requirement on the police to advise someone specifically of his ability to refuse a police request to enter a private property, at least in normal circumstances. Indeed, seeking consent in the first place carries with it the idea that the person requested is entitled to refuse permission.

[16] The situation cannot be equiperated to that in which a suspect in police custody is to be questioned. Such a suspect is not to be assumed to be aware of his right to silence and the privilege against self-incrimination and to understand the consequences of answering questions. That right and privilege are of such importance that the law requires a caution to be given, and indeed legal advice to be taken if requested. These considerations have no direct application relative to the recovery of real evidence, nor, in that connection, to issues of entry into premises (see eg Davidson v HM Advocate 1951 JC 33, LJC (Thomson) at 37; Jalloh v Germany (2007) 44 EHRR 32 at para 102; and HM Advocate v P 2012 SC (UKSC) 108, Lord Hope at para 10). In this regard the court does not consider that the dictum of Lord Sutherland, delivering the Opinion of the Court, in Brown v Glen 1997 SCCR 636 (at 640), which applies the general common law test of fairness, carries with it an implication that any form of caution is required as a precursor to consent to enter premises.

[17] Finally, even if there had been a degree of irregularity in the police actions, the principles outlined in Lawrie v Muir 1950 JC 19 (LJG (Cooper) at 26-7) would have applied (see Gafgen v Germany (2011) 52 EHRR 1, paras 163 and 178). Having regard to the need to protect life and the urgency of the situation, such irregularity would require to be excused. On the facts found, the actions of the police were a necessary, proportionate and fair response, taken in good faith, to an urgent situation involving an imminent threat to the safety of a person. This appeal is accordingly refused.