Raymond Kyle v. Her Majesty’s Advocate [2018] HCJAC 45

Appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- The appellant and his co-accused were indicted to a first diet at the sheriff court in relation to being concerned in the supply of diamorphine, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. A preliminary issue minute objecting to the admissibility of evidence was lodged on behalf of the appellant in which it was contended that drugs recovered by the police from his house, in the absence of a search warrant, was unlawfully obtained and such irregularity should not be excused. At a continued first diet on 17 July 2018, following an evidential hearing, the sheriff repelled the objection and the appellant appealed to the High Court. The circumstances were that PC Sweetin had been allocated a missing persons inquiry relating to individuals for whom there were concerns for their lives and safety of those concerned. The police attended at a property connected to the missing persons but were unable to gain entry and there being no response to knocking and with no view into the property entry was forced. On gaining entry the police officers observed that the front and back doors were barricaded and there was dog faeces and urine in the living room. On looking through the rooms of the property it was noted that there was only a dog present. PC Sweetin gave the dog some water and looked for food for it. PC Sweetin also decided to look for documents which might disclose the whereabouts of the individuals he was looking for. On opening a cupboard PC Sweetin found the brown powder which turned out to be diamorphine. At that stage a section 23 Misuse of Drugs Act 1971 search warrant was sought and granted and the drugs were seized. It was submitted that the sheriff had erred in repelling the objection. It was submitted that the correct test to be applied to entitle entry to be forced for the preservation of life was found in Paton v Dunn 2012 SCCR 441 in which it was stated at paragraph 9:- “...The question will generally be whether the police officers had reasonable grounds for taking the intrusive step they did of forcing entry to a private dwelling. “ It was submitted here on behalf of the appellant that the sheriff did not have reasonable grounds for doing so having regard to the particular circumstances of the present case. Here the court refused the appeal. The court considered that the police were entitled to proceed in the way they had. In evidence PC Sweetin stated that he was concerned that the missing persons could be lying injured inside the property and acted in what he understood to be his common law powers where he thought there was a danger to the safety of individuals. The court considered that an important factor was that the sheriff considered that the police officers gaining entry to the property were acting in good faith. The court did not agree with the submission made on behalf of the appellant that once the police were inside the property opening the cupboard to look for food for the dog or to find documents went beyond the officers’ common law powers for intervention for the preservation of life. The court considered that the police entered the property in good faith in furtherance of their duty to protect life and their conduct was not unreasonable in the circumstances and did not amount to an unlawful breach of the appellant’s privacy. The court went on to state that in the event that they were wrong about that, the minor nature of the intrusion once entry had been gained to the property was such that the breach was readily excusable.