Bill Of Suspension By James O'neill Against Procurator Fiscal, Paisley
| Jurisdiction | Scotland |
| Judge | Lady Paton,Sheriff Principal Brian A Lockhart,Lady Smith |
| Neutral Citation | [2014] HCJAC 136 |
| Published date | 23 December 2014 |
| Docket Number | HCA/2014 |
| Court | High Court of Justiciary |
| Date | 19 December 2014 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2014] HCJAC 136
HCA/2014/3409/XJ
Lady Paton
Lady Smith
Sheriff Principal Lockhart
OPINION OF THE COURT
delivered by LADY PATON
in
BILL OF SUSPENSION
by
JAMES O’NEILL
Complainer;
against
PROCURATOR FISCAL, PAISLEY
Respondent:
Complainer: Ogg, sol adv; Paterson Bell
Respondent: McSporran, sol adv, AD; Crown Agent
19 December 2014
Introduction
[1] In this bill of suspension, the complainer challenges the legality of entry by police officers to a flat in Paisley, and a subsequent search warrant. He avers:
“1. That the Complainer has been indicted at Glasgow Sheriff Court with a contravention of section 4(2)(a) of the Misuse of Drugs Act 1971 and a contravention of section 4(3)(b) of said Act. The charges against the Complainer have been brought following searches by police officers of the premises at the locus as detailed below. A Minute in terms of section 71 of the Criminal Procedure (Sc) Act 1995, challenging the admissibility of evidence recovered in the searches, was lodged in the Sheriff Court. At a hearing regarding said Minute on 10 July 2014 the Sheriff considered that the appropriate method to review the warrant was by means of a Bill of Suspension. The diet was adjourned to enable a Bill of Suspension to be lodged. Proceedings have been continued to a first diet on 17 September 2014 with a trial diet on 30 September 2014 for suspension of the warrant to be sought.
2. That at 09.40 on 25 April 2013 a fire was reported within the common close at [an address in Paisley]. The fire services and police attended. The fire was extinguished. A mattress was noted propped against the door at Flat 2/1 there. Due to the level of smoke firemen knocked on all the doors within the building in order to evacuate persons therein. No answer was received from Flat 2/1 and entry was forcibly gained to the premises. No person was within the flat but a quantity of cannabis plants was discovered. Police officers then searched the premises without a warrant. Additional officers from the CID thereafter attended the locus and they also searched the premises without warrant. A warrant to search the premises was thereafter obtained. That warrant authorised any constable of the Police Service of Scotland with such assistance of any employee of the Scottish Police Authority to enter said premises and search same in terms of section 23 of the Misuse of Drugs Act 1971. Police officers attended at the locus at 14.15 with said warrant. The locus was photographed and a systematic search was carried out at 14.35 hours and a number of items were seized by the police.
3. That the items seized and recovered during the search by police officers are inadmissible in evidence. The warrant granted by the Justice of the Peace at Paisley was based on information obtained following upon the unlawful entries to the property by police officers and unlawful searches of the property by the police officers prior to the warrant being obtained. The police officers did not have authority prior to the granting of the search warrant to enter and search the premises. It is submitted the initial entries to and search of the premises being unlawful the subsequent application for and granting of the warrant in terms of section 23 of the Misuse of Drugs Act 1971 which proceeded on that unlawful entry and search were unlawful…
5. That the warrant dated 25 April 2013 was accordingly unlawful, erroneous and contrary to law. The Complainer is accordingly under the necessity of applying to your Lordships for suspension of said warrant.”
[2] The minute in terms of section 71 of the Criminal Procedure (Scotland) Act 1995 was in the following terms:
“That James O’Neill takes objection to evidence of a search of Flat 2/1 [at an address in Paisley] on 25th April 2013. It appears that police officers searched the property following upon information received from a Scottish Fire and Rescue Service Officer. This search was carried out prior to any search warrant being obtained under the Misuse of Drugs Act 1971. It was only following this initial search that the police applied for and were granted a Justice of the Peace search warrant. Thereafter a further search was carried out and items recovered. It is submitted that the items seized and recovered during the second search are inadmissible in evidence. The Misuse of Drugs Act warrant was granted on the basis of information obtained following upon an initial unlawful entry to the property by police officers.
[3] On 24 September 2014, the appeal court issued the following interlocutor:
“The Court having heard the representative for the appellant, and the Advocate Depute on the Bill of Suspension, continued consideration of the said Bill to a date to be afterwards fixed; remitted to the Sheriff at Paisley for resolution of the minute lodged in the pending prosecution in terms of section 71 of the Criminal Procedure (Scotland) Act 1995, which may require the Sheriff to hear evidence as to the circumstances and events which took place preceding the application for the warrant to search the property.”
Hearing of evidence before the sheriff and findings‑in‑fact
[4] On 30 September and 1 October 2014, the sheriff (Sheriff W Seith S Ireland) heard evidence. He then reported to this court. In paragraph 4 of his report, he recorded certain findings-in-fact. Read short, the sheriff found that at about 9.26 am on 25 April 2013, fire officers attended a fire in the close of a tenement in Paisley (finding‑in‑fact 1). They found a burning mattress propped up against the door of flat 2/1 (findings‑in‑fact 2 and 9). They extinguished the fire. They then checked with the occupants of the flats in the close to establish that there were no fires within and no other fire-related damage to property or danger to residents (finding‑in‑fact 3). As there was no response from flat 2/1, they forced entry and went in to carry out those checks (finding‑in‑fact 4). Once in the flat, Watch Commander Cracknell noticed what he believed to be a cultivation of cannabis plants (finding-in-fact 5). In particular,
“[he] observed two tents, one in each of the two bedrooms within the flat. He could smell cannabis but he himself did not look into either tent. There was in one of the two bedrooms, signs of a nursery which is to say smaller plants in trays which he thought were cannabis plants [finding-in-fact 8].”
He also noted a power cable which had been led out of a window down to another flat (finding‑in‑fact 7).
[5] Commander Cracknell then contacted the police. At about 9.35 am, two constables arrived, namely Constables Walsh and Gaffney. Having heard what Commander Cracknell had to report, they entered the flat to investigate (i) a possible wilful fireraising, and (ii) a possible cannabis cultivation (finding‑in‑fact 9). They too observed the tents and the small plants. Constable Walsh was able to see into one open tent and to count 17 plants (finding‑in‑fact 10). Although he could see into the other tent, he was unable to count the plants as he remained at the bedroom door and did not go far enough into the room (finding‑in‑fact 10).
[6] Constables Walsh and Gaffney then advised police control of events, and waited outside the flat. At about 10.00 am, a senior officer, Detective Sergeant McCrae, arrived, accompanied by another officer (finding‑in‑fact 12). After speaking to the constables and Commander Cracknell, Detective Sergeant McCrae (accompanied by another officer) entered the flat in order to investigate first, whether there had been a wilful fireraising, and secondly, an alleged cannabis cultivation (findings‑in‑fact 13 and 17). He also had in mind that there might be electrical issues involved (finding‑in‑fact 15). Having seen what appeared to him to be a cannabis cultivation, he instructed another officer, Constable Feeney, to obtain a search warrant under the Misuse of Drugs Act 1971 in respect of flat 2/1 (finding‑in‑fact 16). At about 11.30 am a justice of the peace, on the information presented (all as noted in her report dated 12 August 2014), granted a warrant in terms of section 23 of the Misuse of Drugs Act 1971 (finding‑in‑fact 18). A search was then carried out at about 2.15 pm (finding‑in‑fact 18). Finding‑in‑fact 19 was as follows:
“19. Apart from observing the presence of apparent cannabis plants, and in the case of Constable Walsh, counting the apparent numbers of plants in one bedroom, there had been no search conducted of the flat, nor seizure of any physical items or removal of any items from the flat, until the warrant was executed in or around 2.15 pm on that date.”
[7] The justice’s report dated 12 August 2014 explains inter alia:
“Police Constable Feeney stated that there had been a fire at the building at [an address in Paisley], that the police and the fire brigade had attended and that when they reached the second floor of the close they found a mattress, which was on fire, propped against the door of flat 2/1. The fire brigade extinguished the fire and then forced entry into the flat to check that there were no persons within the flat.
Police Constable Feeney stated that no persons were found within the flat but there was in plain view an area of the flat being used for the cultivation of approximately 30 plants, which she believed were cannabis plants.”
[8] As the sheriff notes in paragraphs 5 and 6 of his report:
“5. The factual findings I have made above were not substantially in dispute excepting whether the two tents referred to in each of the two bedrooms were closed with zip fasteners so that no one could see into them and whether it was open to the Court to make a finding (number 19 above) that there had not been any search by those attending police officers in advance of the warrant being obtained. As regards the first dispute, the difference lay in...
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Continued Appeal Under Section 74 By As Against Her Majesty's Advocate
...questions of fact has led to the adoption of some rather cumbersome procedures – see for example the procedure adopted in O’Neill v Harvie 2015 SLT 55 where the sheriff adjourned a hearing on a section 71 minute objecting to the admissibility of evidence, so that a Bill of Suspension could ......