Latest criminal cases, including searches (with and without warrant); contempt of court; applications for recovery of evidence

Search: personal search

There has been controversy about the number of personal searches conducted by police in recent years. McKenzie v Procurator Fiscal, Forfar [2014] HCJAC 132 (4 November 2014) helpfully covers the relevant law. O’Neill v Procurator Fiscal, Paisley [2014] HCJAC 136 (19 December 2014) does the same in respect of search warrants.

In McKenzie, the appellant was stopped in the street by two police officers and detained under s 23 of the Misuse of Drugs Act 1971, allowing her to be searched. She removed two tinfoil wraps of heroin. The question was whether the police had reasonable grounds to suspect that she was in possession of a controlled drug entitling them to search.

Police on duty had seen the appellant enter a block of flats; she was not previously known to them. They knew that a man distributing heroin lived in one of the flats and also knew that he suffered health problems. Less than a minute later the appellant was seen leaving the flats. Police stopped her and asked where she had been; she said she had been to see the man as he had a blood clot. Police then suspected her of being in possession of controlled drugs and shortly afterwards she handed over the wraps of heroin. The sheriff was satisfied the officers had reasonable grounds for the search, and convicted her.

The defence submission focused on McAughey v HM Advocate 2014 SCCR 11: it was incumbent on the Crown to lead evidence as to the basis of the police intelligence concerning the man in question. There had been nothing suspicious in the appellant’s actings. The Crown contended that McAughey was frequently misunderstood and there was no suggestion in the present case that the officers had detained the appellant simply on the basis of following orders from a superior.

The appeal court was content that the officers had formed their own view on the basis of specific information known to them about the man living in the block of flats.

The court quoted with approval the criteria laid down by Lord Steyn in O’Hara v Chief Constable of the RUC [1997] AC 286 at 293, namely that to arrest (or search), (1) a constable need not have evidence amounting to a prima facie case: since matters are at a preliminary stage, a tipoff from an informer or information from a member of the public may be enough; (2) hearsay information may be sufficient: this may come from other officers; (3) information which causes the constable to be suspicious must be in existence to the knowledge of the constable at the time; and (4) an executive discretion to arrest (or search) vests in the constable, not his superior officers.

Search: time for warrant

In O’Neill, police and fire officers attended at a common close about 9.40am where fire had been detected. A burning mattress was seen propped against what turned out to be the appellant’s door and the fire was extinguished. Due to the level of smoke in the building, residents were roused and evacuated. No answer was received at the appellant’s door and the property was forced open to check there were no occupants within. Fire officers and police found no one within the premises, but noticed a cultivation of cannabis and obtained a search warrant.

A bill of suspension was taken in that the warrant had been obtained based on information obtained following illegal entries to the property. When the fire officer forced entry to the property, he noticed and smelt what he believed to be a cultivation of cannabis plants within the flat and two tents which had been erected in the bedrooms. Police were contacted, and when they arrived they entered the flat to investigate possible wilful fireraising and possible cannabis cultivation. A constable was able to see inside one of the tents and counted 17 plants. He and his colleague waited outside the flat until detectives arrived. They too entered the property on the same basis and to check whether there were any electrical issues.

It was submitted on behalf of the accused that police need not have entered once they received the fire officer’s report and should have sought a warrant immediately; they had not faced a situation of possible emergency or danger to life. The Crown contended that the officers had been acting in good faith in investigating possible criminal offences and had looked in the premises but had not searched them. There was no suggestion that the police had broken into the property, or overcome its security using an unusual method or had entered when permission had been refused. There was no complaint that any right of privacy or property had been infringed.

The appeal court agreed and said that police officers were entitled at common law to check the whole locus, both inside and out, to check no person or body was in the premises, check the electricity supply and cabling were in a safe condition and take charge of the premises with a view to further examination, including forensic examination and the collection of evidence. The court refused the bill of suspension, holding that police procedures were in order and the crucial observations and information gathered had justified the obtaining and execution of the search warrant.

Contempt of court: failure to appear

A recurrent problem, particularly in the summary court, is the failure of accused and witnesses to appear at court at the proper time. In most instances, warrants will be granted, and proceedings may be taken against accused by the Crown. In other cases the failure may amount to contempt of court.

In Scott v Procurator Fiscal, Alloa [2014] HCJAC 134 (4 November 2014), a bill of suspension was considered by the appeal court (surely this should have been a petition to the nobile officium?) in relation to an accused who had failed to appear.

Following the grant of a warrant by the sheriff, the accused was arrested about 12.30pm the same day in Alloa town centre, and appeared in court the following day. It was explained that he had slept in and had been on his way to court. Inquiries confirmed that he had been arrested at a locus between his home and the court. The sheriff placed little weight on the explanation, and asked what steps the accused had taken to try to ensure he would be at court on time and why he had not telephoned the court or his solicitor.

While the sheriff said that he had applied the test in Robertson & Gough v McFadyen 2008 SCCR 20, namely that contempt of court requires an act which constitutes wilful defiance of, or disrespect towards, the court, or consists of conduct which wilfully challenges or affronts the authority of the court or the supremacy of the law itself, the appeal court quashed the finding of contempt.

It reiterated that the test of wilfulness is a high one and should not be met in circumstances where an appellant’s behaviour might be categorised as careless or negligent. The sheriff should first of all have ascertained whether the Crown was taking proceedings for failure to appear under s 27(1)(a) (or 150(8)) of the Criminal Procedure (Scotland) Act 1995. These offences only require the Crown to establish that the failure was without reasonable excuse. The sheriff should have afforded the solicitor more time to consider his client’s position if he was proposing to draw an adverse inference from the explanation presented.

Applications for recovery of evidence

Section 301A of the 1995 Act, introduced by the Criminal Proceedings etc (Scotland) Act 2007, s 37, extended to the sheriff court the power to deal with applications for commission and diligence or recovery of documents. This has obviated the need to make application to the High Court, except in relation to cases being dealt with there. Generally the provision seems to be working well.

In DM v HM Advocate [2015] HCJAC 4 (2 July 2014), an appeal was considered against the sheriff’s refusal to grant a commission to recover a psychiatric report prepared on the appellant’s wife. The indictment contained various charges of public disorder involving, among others, his wife and also of assaulting her during the period 2009 to 2013.

A psychiatric report had been prepared on the wife’s mental state in 2013 in connection with separate proceedings where she had been accused of assaulting the appellant. The report had resulted in the wife’s trial being adjourned, and ultimately the proceedings were deserted pro loco et tempore, partly because of what was contained in the report.

The appellant had already obtained psychotherapy and general practitioner records relating to the wife’s mental health. He contended that his wife had been suffering from a major depressive disorder and that her complaints were made in an attempt to escape prosecution herself. Production of the report would allow her credibility and reliability to be explored and might be of material assistance to the preparation of his defence.

The sheriff had regard to the test in McLeod v HM Advocate 1998 JC 67 at 80: “The court does not grant such orders unless it is satisfied that they will serve a proper purpose and that it is in the interests of justice to grant them.” The wife’s medical records had already been obtained and a balance had to be struck between the appellant’s right to a fair trial and her article 8 right to respect for her private life.

The appeal court took the view that the application was a fishing exercise and designed to explore a collateral issue. The report requested had been prepared for other proceedings; the wife’s article 8 rights had to be given weight and accordingly it was not in the interests of justice to grant the appeal.

The Author
Frank Crowe, sheriff at Edinburgh
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