Jacqueline Gillies V. Procurator Fiscal, Elgin
| Jurisdiction | Scotland |
| Judge | Lord Wheatley,Lord Carloway,Lord Reed |
| Judgment Date | 01 October 2008 |
| Neutral Citation | [2008] HCJAC 55 |
| Court | High Court of Justiciary |
| Published date | 01 October 2008 |
| Docket Number | XJ358/08 |
| Date | 01 October 2008 |
| 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...
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