CHARLES GRAY LAFFERTY MCKENZIE AGAINST THE PROCURATOR FISCAL, DUNDEE
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 59
HCA/2015-000929-XJ
Lady Paton
Lord Bracadale
Sheriff Principal M M Stephen QC
OPINION OF THE COURT
delivered by LADY PATON
in
STATED CASE
by
CHARLES GRAY LAFFERTY MCKENZIE
Appellant;
against
THE PROCURATOR FISCAL, DUNDEE
Respondent:
Appellant: C Fyffe, Solicitor Advocate; Bruce Short & Co, Solicitors, Dundee
Respondent: A Edwards, AD; Crown Agent
30 June 2015
[1] The appellant was charged with theft of electricity as follows:
“(001) Between 31st May 2013 and 27th September 2013 both dates inclusive at 14C Dudhope Court, Dundee you CHARLES GRAY LAFFERTY MCKENZIE did steal a quantity of electricity you CHARLES GRAY LAFFERTY MCKENZIE did commit this offence while on bail, having been granted bail on 26 June 2013 at Dundee Sheriff Court;
and
(002) Between 31st May 2013 and 27th September 2013 both dates inclusive in the premises at 14C Dudhope Court, Dundee to which the supply of electricity had been cut off by a public electricity supplier otherwise than in the exercise of a power conferred by regulations under Section 29 of the aftermentioned Act, you CHARLES GRAY LAFFERTY MCKENZIE did restore the supply of electricity to said premises in contravention of paragraph 3(1) of the aftermentioned schedule to the aftermentioned Act; CONTRARY to the Electricity Act 1989 Section 24 and Paragraph 3(2) of Schedule 6 you CHARLES GRAY LAFFERTY MCKENZIE did commit this offence while on bail, having been granted bail on 26 June 2013 at Dundee Sheriff Court.”
[2] Evidence was led at his trial, and he was convicted of both charges. He was sentenced to nine months imprisonment in respect of charge 1, and admonished in respect of charge 2. He appeals by way of stated case.
[3] Leave to appeal against conviction has been granted at the sift in respect of the sheriff’s second and third questions which are in the following terms:
“(2) Was I entitled to find that the entry into the appellant’s flat and the inspection thereof were both lawful?
(3) On the facts admitted or proved, was I entitled to convict the accused of both charges?”
As the sheriff explains at page 6 of the stated case:
“The appeal in this case is based on whether the SSE [Scottish and Southern Energy] officers were entitled to look through the letterbox of the appellant’s flat and whether the SSE officers and the police officers were thereafter lawfully entitled to enter the flat occupied by the appellant without a search warrant.”
[4] The facts found proved by the sheriff are set out at pages 2 to 5 of the stated case as follows:
“1. The appellant resided at Flat 14C, Dudhope Court, Dundee, during the period of the libel, namely 31 May 2013 to 27 September 2013. He rented the property from Dundee City Council.
2. The electricity supply to his rented accommodation at that address was cut off on 31 May 2013 due to his having interfered with that supply.
3. The electricity supplier required to check on a regular basis that neither the appellant nor anyone else had further interfered with the electricity supply to the premises occupied by the appellant.
4. On 27 September 2013, two officers of the electricity supplier, namely Scottish and Southern Energy (henceforth referred to as SSE), attended at the appellant’s flat to carry out an inspection of the electrical system in order to ensure that the appellant had not interfered with it in any way.
5. The block of flats, known as 14 Dudhope Court, Dundee, is unusual in its design. When originally built, the flats had two front doors, an outer and an inner door, between which there is a vestibule, with a ceiling light fitment. The outer front door was not originally intended to be lockable and as a result, the ceiling light in the vestibule of each flat was part of the stair lighting system for the whole block.
6. Over the years, these outer front doors had been rendered lockable and the vestibule had therefore become part of each flat. However, the ceiling light in each vestibule remained connected to the communal stair lighting system and accordingly was maintained and its use paid for by Dundee City Council.
7. On the afternoon of 27 September 2013, the SSE officers knocked on the door of the appellant’s flat at 14C Dunlop Court and received no reply. They heard movement within and one of the officers, Leslie Winter, called through the letterbox in an effort to obtain a response, but received none.
8. Mr Winter looked through the letterbox, into the vestibule (as described above in findings in fact numbers 5 and 6) and saw an orange cable running from the ceiling light over the inner front door and into the flat. As this latter door was more or less closed, he could not see where the cable led thereafter.
9. His colleague, James Hogg, also looked through the letterbox and saw the same cable running from the ceiling light into the flat itself.
10. The officers were concerned regarding the safety of the block of flats and the occupants of these flats, including the appellant himself. They therefore contacted the police. They also spoke to Ian Storrar, a housing officer of Dundee City Council, who happened to be at the block of flats on housing visits. They asked him to contact the public works section of Dundee City Council, and to request the attendance of a joiner. The purpose of obtaining the services of a joiner was to remove the lock from the outer front door of the flat without causing any damage and to replace it once the officers and the police had carried out an inspection and, if necessary, rendered safe the electrical installation in the property.
11. The SSE officers and the housing officer waited outside the block of flats for the arrival of the joiner and the police. They waited more than 30 minutes.
12. During this period, the appellant left the building and was recognised by the SSE officer, Mr Winter and also by the housing officer, Mr Storrar both of whom had had previous dealings with the appellant. The appellant did not speak to these officers, nor did they speak to the appellant. There was a reason that the officers did not approach the appellant but they were prevented by the defence solicitor from explaining that reason in the course of their evidence.
13. A police officer, Constable Ross Czerek, arrived, as did the joiner. The police officer was there to ensure that everything was safe and having heard from the SSE officers what they had seen, he authorised the council joiner to remove the lock of the outer front door and the outer flat door was opened.
14. When entry was gained, it was established that there was no-one inside. There was no sign of the orange cable which the officers had seen running from the vestibule ceiling light.
15. The ceiling light fitting in the vestibule has a square cover and deep back box for cable entries, one of which had been knocked out to provide access by the orange cable to the fitting. The screws which normally secured the cover of the fitting were not fully screwed in.
16. The SSE officers looked at the fuse box in the flat and found that the cover was off. The cables for the ring circuit were disconnected from their circuit breaker and were sitting in such a way as to suggest that the orange cable from the ceiling fitment, as been by the officers, had been connected to these cables.
17. The main living room of the flat was considerably warmer than the ambient temperature and the electrical fire was warm. The television set was also warm. Constable Czerek ran the hot tap in the kitchen and the water was warm.
18. The appellant had illegitimately provided electricity to the flat occupied by him, by linking a cable from the light fitting in the vestibule of the flat to the cables in the fuse box of that flat. This was potentially dangerous.
19. The police officer and the SSE officers were lawfully entitled to gain entrance to the flat occupied by the appellant.
20. Between 31 May 2013 and 27 September 2013, the appellant had unlawfully restored a supply of electricity to the flat occupied by him at 14C Dudhope Court, Dundee. As a result he had stolen a quantity of electricity.
21. The appellant committed these offences while on bail, having been granted bail on 26 June 2013.”
[5] The solicitor advocate for the appellant submitted that there were no circumstances of urgency which might justify entry into private property without a search warrant. The appellant, who was the householder and sole tenant, had been seen to leave the property prior to the entry and search. There was nothing to prevent an application being made for a search warrant. It could not be said that there was a risk of evidence being destroyed and the police witness did not speak to there being any circumstances of urgency. The only possible suggestion of urgency of any degree came from the evidence of witness, Leslie Winter, who described the possibility that the suspected improper arrangement could “trip” and cause the lights in the common close to go out. However, it was submitted that, as the officers had visited the premises at approximately mid-day, that possibility was not such as to justify entry without warrant on the grounds of danger to life or danger to property. A contrast was drawn with the circumstances in the case of He Wuchao v HM Advocate 2011 SCCR 317, particularly paragraph 18.
[6] On behalf of the Crown, the advocate depute submitted that there was no irregularity in the search. There was a sufficient degree of urgency. Attention was drawn to findings‑in‑fact 5, 10 and 14 in the stated case. In particular the building in question was a block of flats. The officers were concerned about the safety of the block of flats and the occupants of those flats, including the appellant himself. The officers did not know whether there was anyone else inside the appellant’s flat. They had seen the cable being routed into the appellant’s flat from the lobby, and were concerned about the safety of the block. The sheriff’s tenth finding-in-fact about the block of flats was supported by evidence (noted at page 7 of the stated case) namely that Leslie Winter had said that he was concerned that the connection he could see “would be unsound and create a hazard”. One example he gave was that because the light fitting was part of the stair lighting circuit, if the illegitimate connection “tripped” the system, there would be no communal lighting in the block.
[7] We accept that there may be circumstances of urgency and/or danger to life or property which may justify entering premises without a search warrant: see for example the circumstances in He Wuchao v HM Advocate 2011 SCCR 317. However in the present case there was no evidence, in our opinion, to suggest a situation of urgency or a possible danger to the premises or to the lives of those living in the premises. One witness, Leslie Winter, described the possibility that the suspected improper arrangement might “trip” and cause the lights in the common close to go out. No other example of a hazard or danger was given by that witness. We note that the visit by the officers took place at mid-day, and at such a time daylight would, in our view, be sufficient for the safety of the occupants.
[8] We consider, in this case, that a general reference to “the safety of the block of flats and the occupants of these flats” (findings-in-fact 10) is too inspecific. To entitle police officers to dismantle a door lock and enter private premises without a warrant requires more than was contained in the findings-in-fact in this case.
[9] We are not therefore satisfied that what occurred in this case justified entry without a warrant. The evidence obtained on entering and inspecting the flat was, in our opinion, inadmissible, and the defence objection to that evidence was well‑founded. It is our view that what was seen through the letterbox was insufficient on its own to justify a conviction of theft of electricity. Accordingly we allow the appeal, and we answer questions 2 and 3 in the negative.