He Wuchao v. Procurator Fiscal, Lanark [2011] HCJAC 36

Bill of Suspension and Appeal Against Conviction:-The appellant was convicted after trial before a sheriff and jury at Lanark of being concerned in the production of cannabis contrary to section 4(2) of the Misuse of Drugs Act 1971. He was sentenced to 30 months imprisonment in relation to that charge and 6 months imprisonment in respect of a failure to appear at an earlier trial diet to run consecutive to the drugs charge. Here the appellant appealed against his conviction in respect of the drugs charge on the grounds that the search procedures were illegal in relation to the recovery of the cannabis plants. During the course of the trial objection had been taken to the search of the locus which was repelled by the trial sheriff. Here it was submitted that the sheriff erred in law in repelling the objection to the admissibility of the evidence of the search. The circumstances were that police had entered the locus without a search warrant, however, on entering and observing the cannabis plants the police officers subsequently sought and obtained a search warrant under section 23 of the Misuse of Drugs Act 1971. The sheriff took the view that the reason that the officers had entered the house was “to preserve life and property” having seen the unexplained escape of a Chinese man from a window together with background noises which were described as “the sound of running water and whirring noises”. It was submitted that the sheriff had erred in that the police had no authority for entering the house initially and the fruits of search should have been held inadmissible, and the objection sustained. It was submitted on behalf of the Crown that the officers had a legitimate concerns and when they went inside, saw what was there, and went to get a warrant, the sheriff was entitled to adopt the reasoning she did. It was further submitted on behalf of the Crown that if the sheriff was not correct, the initial entry to the premises, during which the officers had taken nothing, should be viewed as an excusable irregularity. Here the court considered whether, in the circumstances of this case, no reasonable sheriff would have repelled the objection.