High Court rules accused asked to return home by police for search was not searched unlawfully

About this case:

• Citation:
  [2025] HCJAC 49
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Matthews

Appellant JKP appeared on indictment at Dundee Sheriff Court on charges of possessing indecent images under the Civic Government (Scotland) Act 1982. He argued that the conduct of the police meant he had been placed under de facto custody and had been pressured into returning to his home for the search.

The appeal was heard by Lord Matthews, Lady Wise, and Lord Clark. Gravelle, solicitor advocate, appeared for the appellant and Cross, advocate depute, for the Crown.

Trickery or deception

At the evidential hearing before the sheriff in Dundee, evidence was led from three police officers, DCs Gibbs, Austin, and Fyfe, as well as the appellant, his father, and his partner. DC Gibbs testified that the police arrived at the appellant’s home address, for which a search warrant had been obtained, and were greeted by the appellant’s partner CR. It was established that the appellant was at work, and so DC Austin was sent to trace him and bring him back to his home address.

DC Austin asked the appellant to confirm his identity and told him that there was an enquiry at his home. He was not told the nature of the enquiry or shown the warrant. The appellant agreed to return to the premises, and on arrival he was informed of the purpose of the enquiry and cautioned. The appellant’s position was that he had placed his phone in his garage office on charge, had been compelled to go with the police, and told that he would need his phone in order to secure his travel home later.

The officers’ evidence was that the appellant was always free to leave, and the phone was not seen in his possession in the garage. The sheriff found that the officers had been acting in good faith and had not deployed trickery or deception to have the appellant return to the locus. Having reached the conclusion that the appellant was not in de facto custody, the procedures adopted by the police were fair, given that he was cautioned at common law on arrival at the locus and the warrant was read. The recovery of the phone was allowed in terms of the search, as it had been at the locus.

For the appellant it was submitted that suspicion had clearly crystallised on him, and the police had been informed that his social media account was the source of the criminality. His freedom of action had been significantly curtailed, and the conduct of the police left him with the impression that he had no choice. The Crown submitted that the police had expected him to be at the premises, that it was standard practice in cases of this nature to conduct the search in the presence of the person, and the sheriff was correct to find he was not in de facto custody.

No more than a disagreement

Delivering the opinion of the court, Lord Matthews began: “Despite counsel’s best efforts, we were satisfied that this case turned largely on the sheriff’s assessment of the evidence and his findings in fact. He was entitled to find that the police did not use any force or compulsion but merely invited the appellant to accompany them back to the house.”

He added: “The inquiry was still at the stage of acting on intelligence and the advocate depute was correct to say that others might have used his phone. The sheriff concluded, based on the evidence before him, that the police did not have sufficient information to allow them to arrest the appellant. He was entitled to find that there was no subterfuge or trick in asking him to return to the house, which was in accordance with the general practice.”

Considering that the police would have let the appellant out of the police car on the way to the premises if he had asked, Lord Matthews said: “The sheriff was satisfied that the officers acted in good faith. They did not ask the appellant to retrieve his phone. He went with them to the house voluntarily and indeed, voluntarily retrieved his phone before doing so. We were satisfied that the attack on the sheriff’s findings was no more than a disagreement with his conclusions on the evidence. He had full regard to the relevant tests and made findings, all of which were open to him.”

He concluded: “Even if we had been satisfied that the search was unlawful, we would have excused it for the reasons set out by the sheriff himself and by the advocate depute. These were serious offences, the officers acted in good faith, they could have waited until the appellant returned home, in which case they would have retrieved the phone, and there would have been no issue.”

The appeal against the sheriff’s decision on the preliminary issue was therefore refused.