J.l.+e.i. V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young,Lord Bracadale,Lord Brodie |
| Judgment Date | 01 May 2014 |
| Neutral Citation | [2014] HCJAC 35 |
| Court | High Court of Justiciary |
| Date | 01 May 2014 |
| Published date | 01 May 2014 |
| Docket Number | No 22 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| [2014] HCJAC 35 | |
| Lord Brodie Lord Bracadale Lord Drummond Young | Appeal Nos HCA 2014/001274 & HCA 2014/001291 OPINION OF THE COURT delivered by LORD BRODIE in APPEAL UNDER SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 by J L and EI Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
First Appellant: Alonzi, advocate; Lawson Coull & Duncan
Second Appellant: McCluskey; Muir Myles Laverty
Respondent: Prentice QC, AD; Crown Agent
1 May 2014
Introduction
[1] These are appeals, at the instance of JL and EI, in terms of section 74 of the Criminal Procedure (Scotland) Act 1995, against a decision made by the sheriff at Dundee at a first diet in a case where the two appellants had been indicted on a charge of assault to injury and permanent disfigurement. The respective notes of appeal are in identical terms. The submissions made by Mr Alonzi, on behalf of the first appellant, and Mr McCluskey, on behalf of the second appellant, overlapped.
[2] Both appellants had given notice, by way of minute, as is provided for by section 71(2) of the 1995 Act, that they wished to raise certain preliminary issues relating to the admissibility of evidence sought to be relied on by the Crown which had been obtained by police officers following upon the appellants' detention in terms of section 14 of the 1995 Act and their conveyance to Bell Street police station some five days after the alleged assault. These issues were canvassed before and determined by the sheriff at a hearing which, as he explains in his report, extended over three days. However, the sheriff's determination of only one of these issues is the subject of appeal. As it is identified in the minute for the first appellant that issue was as follows:
"Police officers unlawfully took possession of and interrogated the Minuter's mobile phone. Detective Constables Gareth Ewing and Sharon Mitchell, Crown Witnesses numbers 22 and 23 respectively, were requested by a Police Sergeant Winter (who is not a Witness in these proceedings) to examine a mobile phone which was within the Minuter's property when she was presented at the Charge Bar in terms of section 14 of the Criminal Procedure (Scotland) Act 1995. The Minuter's permission was neither sought nor obtained to allow her phone to be interrogated and the said Officers carried out the interrogation of her mobile phone without the authority of a properly obtained and executed Warrant. Various pieces of data were thereafter copied from the said mobile phone by Detective Constable Robert O'Donnell and Police Sergeant Robert Prudom, Crown witnesses numbers 18 and 19 respectively and recorded on disc form, Label number 8 on the Crown's List of Productions. The information contained within the said disc was thereafter passed to Officers carrying out interviews of the Minuter and were put to her. The Minuter complains that the seizure and interrogation of her phone was unlawful and that all evidence obtained during said procedures is unlawful, ought not to be admitted in evidence and ought not to have been used in her interrogation by Police Officers".
[3] On 28 February 2014 the sheriff dismissed the minute. He granted leave to appeal in terms of section 74(1) of the 1995 Act.
Procedure before the sheriff
[4] The case called for a first diet on 26 November 2013. After a number of adjournments consideration of the section 71 minute was continued to the trial diet. The hearing in terms of section 71 was commenced on 11 February 2014 with the leading of a witness for the Crown. A further six witnesses were led for the Crown on 12 February 2014. On 13 February 2014 and again on 14 February 2014, the first diet was adjourned by reason of the ill-health of the first appellant. On 28 February 2014 a further witness was led for the Crown. Both appellants also gave evidence. The sheriff then heard submissions after which he dismissed the minute.
Ground of appeal
[5] The grounds upon which the appellants appealed to this court are set out in their respective notes of appeal as follows:
"that the ground of submission raised at the First Diet was that Police Officers had unlawfully accessed a mobile telephone belonging to the [first appellant]. From said telephone the Police Officers had accessed a text conversation between the two accused. Said text conversation had been transcribed into a document namely Crown Production 11. That document was shown to accused prior to her interview by Police Officers. It was submitted on behalf of the appellant that the Police Officers had no lawful authority to examine the contents of said mobile phone and accordingly, it was submitted that Police Officers had acted unlawfully in so doing. It was also submitted that the interview conducted by Police Officers with the appellant should be held as inadmissible given that the unlawfully obtained material had been used in the course of the interview with the appellant".
......
"that the [first appellant] appeals to the High Court of Justiciary against that decision on the following grounds. It is respectfully submitted that the Sheriff has erred in dismissing the Section 71 Minute. It is respectfully submitted that Police Officers had no authority to allow them to examine the mobile telephone without either seeking the permission of the [first appellant] or alternatively seeking a warrant to allow them to do so. It is respectfully submitted that there is no power in terms of Section 14 of the Criminal Procedure (Scotland) Act 1995 that allows a Police Officer to examine the contents of a mobile telephone".
Submissions
First appellant
[6] Mr Alonzi began by summarising the circumstances in which the appellants had been detained on 28 December 2013. As the sheriff had reported, suspicion had fallen on the appellants partly because of information gleaned from social media including Facebook. The mobile which had been seized by the police had been an iPhone 5 which the first appellant had only recently acquired. It was important to understand what this device was. It was not just a mobile phone. It was a "Smartphone", a portable computer in effect, but a computer that was continuously connected to the internet. It provided access to email as well as social media sites including Twitter and Facebook. Potentially at least, it might provide access to personal banking details and health records. It provided means of storing still and moving images and audio files. It was very different from the Memomaster electronic diary which was considered in the case of Rollo v HM Advocate 1997 SLT 958. It was not static in that, for example, a personal calendar might be updated by persons other than the owner of the phone. It was a "living filing cabinet". It could not be compared to, for example, a letter or a paper diary. In the present case the police had no authority for "going into the phone". What that involved was going into the first appellant's "private cyber-space". There was no authority for that. The first appellant's privacy required to be protected. Valuable information was held on the phone, including video footage which had to be safeguarded from...
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