Drugs offence accused fails in legal challenge against admissibility of evidence recovered following ‘forced entry’ into property
A man accused of being concerned in the supply of heroin who challenged the admissibility of evidence of the recovery of bags of brown powder found by police in his home following entry into the property which was forced for the “preservation of life” has had his appeal dismissed.
The High Court of Justiciary Appeal Court upheld the sheriff’s decision that the evidence was “admissible” after ruling that the police’s entry into the property “did not constitute an unlawful invasion” of the appellant’s privacy.
‘Missing persons inquiry’
The Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Turnbull, heard that he appellant Raymond Kyle and a co-accused were charged with being concerned in the supply of the class A drug.
At a First Diet on 17 July 2018 the court heard evidence of a police constable, PC Scott Sweetin, and debate on a preliminary issue raised by the defence challenging the admissibility of certain evidence upon which the prosecution were seeking to rely.
That evidence related to the finding by police of bags of brown powder in the appellant’s house, which turned out to be heroin, following an entry which was forced for the preservation of life or property.
The court was told that PC Sweetin had been allocated a missing persons inquiry of a “high risk” nature, a categorisation given when there is a fear of risk to the life and safety of the individuals concerned.
With a colleague he went to the property but was unable to gain entry, there being no response to his knocking, although he could hear a dog barking inside.
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 and 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, who could have been lying hurt inside the property.
Against that background the officer forced entry.
Once inside the property, the officers found that the front door had been barricaded by a sofa and that the back door was similarly barricaded, but there was no-one inside.
The officers found dog faeces and urine in the living room, suggesting that the dog had been there untended for some time, at least a day.
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.
The sheriff was satisfied that the officers were acting in “good faith” and ruled that the evidence was “admissible”, but the appellant appealed against that decision.
It was maintained that the officers “did not have sufficient grounds for forcing entry to the property”; and that in any event, once they had entered the property and found no-one there, the police should have left.
It was argued that the actions which led to the recovery of the drugs were “neither reasonable nor necessary”, and therefore the evidence should not be admitted.
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.
But it was submitted that opening a cupboard – either to look for documents or to feed the dog – “went beyond it”.
The appeal judges rejected that argument, having noted that the officers were proceeding on the basis of concern for life and safety of individuals.
Delivering the opinion of the court, the Lord Justice Clerk said: “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.
“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.”
© Scottish Legal News Ltd 2020