LORD ADVOCATE REFERENCE NO.1 OF 2002 BY HER MAJESTY'S ADVOCATE IN TERMS OF SECTION 123 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| Lord Kirkwood Lord Cameron of Lochbroom Lord Caplan | Appeal No: MISC. 18/2002 OPINION OF THE COURT delivered by LORD KIRKWOOD in LORD ADVOCATE'S REFERENCE NO. 1 OF 2002 by COLIN DAVID BOYD, Q.C., HER MAJESTY'S ADVOCATE in terms of Section 123 of the Criminal Procedure (Scotland) Act 1995 _______ |
A. Turnbull, Q.C., A.D.; Crown Agent
A. Mackay; Beaumont & Co.
3 July 2002
[1]This is a reference by the Lord Advocate in terms of section 123(1) of the Criminal Procedure (Scotland) Act 1995 of a point of law which arose in the trial of the accused at Linlithgow Sheriff Court in November 2001.
[2]During August 1998 the accused, who lived in Livingston, West Lothian, was suspected by the procurator fiscal, on the basis of information which he had received, of having in his possession in his home indecent photographs of children in contravention of sections 52 and 52A of the Civic Government (Scotland) Act 1982 as amended by the Criminal Justice Act 1988. On 28 August 1998 the procurator fiscal presented a petition to the sheriff at Linlithgow. The petition was in the following terms:
"UNDER THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
IN THE SHERIFF COURT OF LOTHIAN AND BORDERS AT LINLITHGOW
THE PETITION OF LINDA MARGARET RUXTON
PROCURATOR FISCAL OF COURT FOR THE PUBLIC INTEREST
LINLITHGOW: 28 AUGUST 1998
HUMBLY SHEWETH
That from credible information received by the Petitioner it appears that [the accused], residing at [address], Livingston, West Lothian, has in his possession at said address indecent photographs of children in contravention of Section 52 and 52A of the Civic Government (Scotland) Act 1982 (as amended by the Criminal Justice Act 1988). Further from information received by the Petitioner it appears that said photographs have been produced by computer equipment which said [accused] uses to access the Internet. It is believed said [accused] has used a computer printer and paper at said address to assist in the production of said photographs.
It is in the public interest and in the interests of the investigation of said alleged offence, that the said address of said [accused] be searched and any indecent photographs or images be seized together with any computer equipment and paper used in the production of same or other evidence thereof.
May it therefore please your Lordship to grant Warrant to Officers of Lothian and Borders Police to enter premises comprising of the said house at [address], Livingston, West Lothian, and any garage, hut or outbuilding relative thereto occupied by the said [accused] and if necessary use force for making such entry whether by breaking open doors or otherwise and thereafter to search the said premises and to seize as evidence any indecent photographs or images of children, any computer discs and any other computer equipment including any printer and any paper for use in said printer all as may have been used in the production of said indecent images of children and to seize any other evidence at said premises which may assist in the investigation of the aforementioned offence and for that purpose to make patent all shut and lockfast places in said premises or to do further or otherwise as to your Lordship shall seem meet.
According to Justice
'B. Robertson'
PROCURATOR FISCAL DEPUTE".
[3]On 31 August 1998 the sheriff, having considered the petition, granted warrant as craved.
[4]The search warrant was executed by officers from Lothian and Borders Police on the morning of 2 September 1998. The accused was later charged on indictment with contraventions of section 52A(1) and 52(1)(c) of the Civic Government (Scotland) Act 1982 and the case called for trial at Linlithgow Sheriff Court before Sheriff Peter Gillam and a jury on 14 November 2001. After the jury had been empanelled, and the first witness, Mr. John Cherry, had given evidence for a few minutes, objection was taken by the defence to the admissibility of evidence relating to the finding of any items during the search of the accused's house which had been carried out on 2 September 1998 under the authority of the warrant granted on 31 August 1998. The basis of the objection was that the search warrant had authorised only officers of Lothian and Borders Police to enter the premises and carry out the search but that Mr. Cherry, who was not a police officer but was a communications controller attached to the Computer Forensic Unit at Police Headquarters in Edinburgh at the time, had been actively involved in the search. As his activities were not authorised by the search warrant, the search of the accused's house had been irregular and evidence resulting from the search should not be admitted. The sheriff decided to hear evidence and submissions outwith the presence of the jury. The next day the sheriff announced his decision which was that "this search warrant was executed irregularly because it was carried out by a person who was not authorised to do so", Mr. Cherry not being, and never having been, a police officer. The sheriff also decided that he was not prepared to excuse the irregularity which had occurred. His ruling was that evidence of items recovered in the course of the search was not admissible, and he therefore sustained the defence objection. After he had announced his decision, the procurator fiscal depute indicated that she was leading no further evidence and the sheriff acquitted the accused. The Lord Advocate has referred the following questions for the Opinion of the Court:
"(1)Did the learned Sheriff err in upholding the defence objection that the
search of the accused's home was rendered irregular by reason of the activities of Mr. Cherry?
(2)Esto question (1) is answered in the negative, did the learned Sheriff
err in holding that such irregularity as there was resulting from the activities of Mr. Cherry was inexcusable in all the circumstances narrated above?
(3)Where a search warrant grants authority to officers of a named police
force, to what extent are other persons, whether officers of another police force or forces or persons who are not police officers, entitled to participate in any search carried out under the warrant without detriment to the regularity of the search and the admissibility of evidence recovered during the search?".
[5]At the "trial within a trial" the Crown led evidence from four witnesses, namely (1) Mr. John Cherry, (2) Detective Sergeant David Reid, (3) Detective Inspector James Mackintosh and (4) the wife of the accused. We were provided with transcripts of the evidence given by those witnesses and we also have a report from the sheriff.
[6]Mr. John Cherry gave evidence that he was a communications controller employed by Lothian and Borders Police but that on 2 September 1998 he had been temporarily attached to the police Computer Forensic Unit. He had been attached to that unit for about 4 or 5 weeks and he had received special training on a course in Oxford for a week. He was a civilian employee and not a police officer. He had attended at the accused's house in company with D.S. Reid, who was the head of the Computer Forensic Unit. Mr. Cherry said that he was assisting D.S. Reid. When he and D.S. Reid arrived at the house an identification branch vehicle and two or three search team vehicles were already there. The identification branch took video photographs and then the police search team went in followed by D.S. Reid and himself. He said that his role was just to mark up and take any computer units and software that were there. He was shown a search schedule (Crown Production No. 3) which contained an entry stating that a system unit had been found in the study by D.S. Reid and him, and he said that it had been on the table but he had not been the first to see it. He had not searched for the unit. They had marked it, marked all the cables and taken it away in the vehicle in which they had arrived. They had also taken ten zip discs which were beside or just below the system unit. In cross-examination, he said that he had not previously been called upon to be present at a search of premises. Before he was employed by the police force he had had no particular expertise in the field of computers. D.S. Reid had a far greater expertise in issues on computer matters. Mr. Cherry understood that he had been asked to go along to the search for experience. He went because he was part of the unit. He had not been with the original party of police officers who had gained entry to the house. He believed that the first room he went into was the study. He had followed D.S. Reid into the room as his assistant. He knew that he and D.S. Reid were going to take away the computer equipment. He had not carried out a search. When he walked into the room, the computer was there on the table, and it and the zip discs were the sort of things that D.S. Reid and he were looking for. The system unit had been marked by him and D.S. Reid to allow for easy assembly when they got back. The decision that it should be marked up was taken by D.S. Reid. He and D.S. Reid together had found the items when they were in the study, and they had both been looking for computer equipment.
[7]Detective Sergeant Reid gave evidence that he had 22 years police service and was based at Police Headquarters in Edinburgh in the Computer Forensic Unit. He had a degree in programming systems and a number of professional qualifications and he had given expert evidence in court. In September 1998 he had been a police sergeant working in the same unit. There were three other part-time members of the unit. On 2 September 1998 he had gone to the accused's house in Livingston. He had travelled there by car accompanied by Mr. Cherry. Detective Sergeant Mackintosh, who was in charge of the operation, and some of his team had initially gained entry, followed by the search team and the video crew. He and Mr. Cherry had entered the premises some time after that. Mr. Cherry was subject to his instructions as he was the head of the unit. When they got inside the house they had spoken to a number of police officers who were already present, and two rooms were indicated to them where there appeared to be computer equipment. D.S. Reid said that as he entered the house there was a study on the left and a lounge-type room on the right, and they confirmed that there was indeed computer equipment in both of these rooms. The computer equipment was tagged to allow them to remove it from the premises. They had been looking for any computer hardware and/or associated storage media for future examination. Mr. Cherry would have assisted in the tagging of the equipment. A system unit and ten zip discs were found in the study by himself and Mr. Cherry. The zip discs had been in plain view. In cross-examination, he said that he and Mr. Cherry had gone into the study first, having been told that there was believed to be computer equipment in the two rooms, and they confirmed that there was, indeed, computer equipment in each room. The object of going to the house had been to find and seize computer equipment which might have been used in the commission of a crime. He agreed that he and Mr. Cherry had found the system unit and zip discs, and taken charge of them. They had been there to identify computer equipment. There had been a search team there to conduct the search. He had not gone trawling through drawers or cupboards in terms of what he recognised as being a search. They had been part of the search from the identification point of view. They had gone into the study, seen the equipment in plain view and taken charge of it. He had had training in relation to good practice and taking charge of computer equipment. There were guidelines in relation to storage and packaging. D.S. Reid said that he had taken Mr. Cherry along because he was attached to the unit at that time and was there when this particular operation had been mounted.
[8]Detective Inspector James Mackintosh had been a Detective Sergeant in the Serious Crime Squad in September 1998 based at Police Headquarters at Fettes. In relation to the search of the accused's house he had held a briefing on 1 September at Police Headquarters which had been attended by a number of police officers. He had been in charge of the operation. The following morning he had attended at the accused's house with the search warrant in his possession. A uniformed police officer had knocked on the door and the witness was the first officer to walk into the house. He showed the search warrant to the accused who was taken to the police station in Livingston. D.S. Reid and Mr. Cherry had been at the briefing the day before and they were required for dealing with the computer equipment. He had been aware that there was a computer in the study as the door was open or had a glass panel. There was a police search team who had come to conduct the search. In cross-examination, he said that Mr. Cherry would not have been in the house when he was there. The search had taken place after the accused had been taken from the house.
[9]Evidence was also given by the wife of the accused who said that the police had explained that they were going to search the house and that she had assumed that the people who came in were police officers. That morning there were two computers in the house, one of which was in the study.
[10]After the evidence had been heard, the sheriff heard submissions from the procurator fiscal depute and the solicitor for the accused. He decided that the search warrant had been executed irregularly because it was carried out by a person who was not authorised to do so. The only persons who had been authorised to enter the premises, carry out the search and seize goods belonging to the accused were police officers, but Mr. Cherry was not, and never had been, a police officer. The sheriff then considered whether or not he should exercise his discretion to excuse that irregularity. He said that he noted that there had been a deliberate, and not accidental, use of a person not authorised to execute the warrant, and that the warrant was executed by a person who was not of the same level of authority, training or responsibility as the actual persons authorised. He also took into account the fact that it was known, or ought to have been known, when the warrant was obtained that Mr. Cherry was going to be involved in the execution of the warrant, and stated that it would have been possible for the sheriff who granted the warrant to have been asked to include him in the list of authorised persons. The sheriff also stated that he considered the fact that an unauthorised person was entering the premises, carrying out the search and removing items was not disclosed to the occupiers of the house, who were thus denied the opportunity of objecting to a search being carried out by Mr. Cherry. There had been no evidence to suggest that the involvement of Mr. Cherry was necessary, and he did not have authority to enter the premises, search them and seize items. The sheriff, after referring to Lawrie v. Muir 1950 J.C. 19, Hepburn v. Brown 1998 J.C. 63 and Singh v. H.M. Advocate 2001 S.C.C.R. 353, decided that he would not excuse the irregularity which he had identified.
[11]Before us, the advocate depute reminded us that the search warrant had been granted at common law and authorised the police to enter and search the premises and seize as evidence the items described in the search warrant. The objection which had been taken had related to the involvement of Mr. Cherry, who was a civilian employee of Lothian and Borders Police and was attached to the police Computer Forensic Unit. That unit assisted in the investigation of crime involving the use of computers, and Mr. Cherry had a certain amount of expertise in the operation of computers, having received some training in Oxford. D.S. Reid was in charge of the unit and he had attended at the accused's house accompanied by Mr. Cherry. There was also a search unit, consisting only of police officers, who were to carry out the search. On the evidence it was clear that the search team had gone in before D.S. Reid and Mr. Cherry, whose function was not to search the premises but to provide assistance in the form of giving advice and making arrangements for the tagging and removal of the computer equipment and software. The advocate depute submitted that the actions of Mr. Cherry fell within the terms of the search warrant. When executing a search warrant the police are entitled to assistance if deemed necessary. For example, they may require the assistance of a locksmith or a joiner. In the present case Mr. Cherry was only assisting D.S. Reid, and it may be that the evidence to that effect had been misunderstood by the sheriff. While Mr. Cherry accompanied D.S. Reid to the house, he did not say that he had been there in order to carry out the search. D.S. Reid had been directed to the two rooms which had contained the computer equipment, and advice was needed as to the proper dismantling and removal of the computer and the associated discs. Mr. Cherry had participated in the search but only in the sense of being an assistant providing specialist advice, and it was D.S. Reid who decided what was to be marked up. The advocate depute submitted that a civilian employee of a police force is entitled to take part in a search of premises providing he acts under the guidance and control of the police officers present. The search team was there to search and D.S. Reid and Mr. Cherry were there to identify, tag and remove computer equipment. The role of D.S. Reid and Mr. Cherry was supplementary to that performed by the police search team, and it was to advise, preserve and remove. Mr. Cherry had acted as D.S. Reid's assistant and in accordance with his direct instructions. The case of Hepburn v. Brown, supra, could be distinguished as in that case the English police officer had taken an active role and conducted part of the search himself. While there had been an irregularity in that case, it had been held that it could be excused. In the present case Mr. Cherry had been assisting D.S. Reid, who had been directed to the rooms where the computer equipment had been found. It was submitted that the sheriff had not appreciated the fact that Mr. Cherry's function had been to assist D.S. Reid, and that Mr. Cherry had not been executing the search warrant. When a search warrant was granted there was no objection to a forensic scientist, or a fingerprint expert, employed by the police attending at the premises in question provided that they were acting under the instructions of police officers who were present. When a search warrant is sought and granted it cannot always be known in advance what items will be found, and the police should be able to call on skilled assistance to identify and arrange for the removal of what has been found. It was accepted that it was important that the civilian assistant was under the direction and control of the police at the premises. In the circumstances question 1 should be answered in the affirmative. If, however, question 1 was answered in the negative, and there had been an irregularity due to the presence of Mr. Cherry, then that irregularity should have been excused by the sheriff. The sheriff had taken no account of the fact that Mr. Cherry, who was a police employee, had done everything that D.S. Reid had done and that Mr. Cherry was all along acting in the presence of, and on the instructions of, D.S. Reid. If there had been an irregularity, it had been a very trivial one, and question 2 should be answered in the affirmative. The advocate depute did not invite us to answer question 3 as he recognised that it raised too many hypothetical and variable considerations.
[12]Counsel for the accused submitted that the factual position as disclosed by the evidence showed that, irrespective of why Mr. Cherry was told to attend at the premises, he in fact took an active part in the search. His participation had gone further than simply identifying and removing articles found by police officers. However, it was accepted that he did not do anything that he had not been instructed to do by D.S. Reid. D.S. Reid was the head of the Computer Forensic Unit and it could not be said that he had relied on the expertise of Mr. Cherry whose training and experience had been of a very limited nature. Mr. Cherry and D.S. Reid had both gone into a room and found computer equipment, and they had taken charge of it. The sheriff had been entitled to hold on the evidence that Mr. Cherry had been one of the persons engaged in searching the house. He and D.S. Reid were both looking for computer equipment. Mr. Cherry's involvement in the search had not been authorised by the terms of the search warrant, and as a result of his participation there had been an irregularity. Counsel submitted that the case of Hepburn v. Brown, supra, supported his position. In the circumstances question 1 should be answered in the negative. On the assumption that there had been an irregularity, the sheriff had to consider if that irregularity should be excused and that was a matter for the exercise of his discretion. He had set out in his report the factors which had influenced him in reaching his decision and they are all factors which he was entitled to take into account. He had been right to refuse to excuse the irregularity and it could not be said that he had exercised his discretion unreasonably. Accordingly, question 2 should be answered in the negative. Counsel stated that he had no submissions to make in relation to question 3.
Decision
[13]On the basis of the evidence led at the "trial within a trial" we are satisfied that the defence objection to evidence of items recovered in the course of the search on 2 September 1998 should not have been sustained.
[14]The search warrant authorised officers of Lothian and Borders Police to enter the accused's house, to search the premises and to seize as evidence any indecent photographs or images of children, any computer discs and any other computer equipment which may have been used in the production of indecent images of children.
[15]In Hepburn v. Brown, supra, the Lord Justice General (Rodger) observed (at page 65):
"The warrant which was granted in this case, by its terms, authorised a search by constables of Strathclyde Police. Doubtless other people might assist them in their search. In particular, it appears to us that where someone else might more readily recognise the items which were being sought, such assistance might be invaluable and it would be strange if such a person could not accompany the Strathclyde officers and identify any items which had been discovered by them. But it appears that in this case Detective Constable Markhill of the City of London Police went further and actually conducted part of the search himself.
In our view, it is plain by the very terms of the warrant that Detective Constable Markhill, not being a constable of Strathclyde Police, had no authority under that warrant to carry out a search".
[16]In Hepburn it was held that, although the search was irregular, the irregularity was one which could be excused and that the sheriff had been entitled to hold that the evidence of the results of the search was admissible. In the present case the warrant authorised a search by officers of Lothian and Borders Police. The sheriff observed that the only persons authorised to enter the premises, carry out the search and seize goods belonging to the accused in terms of the warrant were police officers. He went on to hold that this search warrant had been executed irregularly because it was "carried out by a person who was not authorised to do so", and he refers to the fact that Mr. Cherry was not, and never has been, a police officer. The sheriff does not explain or expand on his finding that the "search warrant" had been carried out by Mr. Cherry without authorisation. However, in our opinion, on a fair reading of the evidence led before the sheriff, Mr. Cherry was not conducting a search himself. He was a member of the Computer Forensic Unit which was headed by D.S. Reid, a police officer, and he was in the house in his capacity as D.S. Reid's assistant, to assist him in identifying, tagging and removing computer equipment. It is clear that he was acting under the directions of D.S. Reid throughout and that there was no question of Mr. Cherry having gone off and conducted a search on his own. It is not clear from the sheriff's report that he appreciated that Mr. Cherry's function was simply to assist D.S. Reid who was clearly authorised by the search warrant to do all that was done by him when the search warrant was executed.
[17]As the Lord Justice General observed in Hepburn, where a search warrant authorises a search of premises by police officers, other people might assist them in their search and the example was given that where someone, who is not a police officer, might more readily recognise the items being sought, such assistance might be invaluable, and it would be strange if such a person could not accompany the police officers and identify items which had been discovered by them. Similarly, police officers conducting a search could well require the services of a locksmith to open a lockfast cupboard or a safe on the instructions of police officers present. What assistance can legitimately be provided must, of course, depend on the circumstances of each individual case, and that was why the advocate depute did not invite us to answer question 3. In the present case the police officers were searching for inter alia computer equipment. The police search team had been in the premises for some time before D.S. Reid and Mr. Cherry went in and were told of the presence of computer equipment in the study and the other room. When D.S. Reid entered the study, followed by Mr. Cherry, the computer and the zip discs were in plain view. It is obvious that if computer equipment is being removed from a house there is a risk of damage to the equipment, and loss of the data contained therein, unless the work is done properly and that was why D.S. Reid, the head of the Computer Forensic Unit, was there. As a police officer, he was authorised to tag and remove the computer equipment found in the house. In our opinion, the fact that he was accompanied by Mr. Cherry, a police employee and a member of the same unit, who was there to assist him in tagging and removing the equipment and who, on the evidence, worked under his directions while in the premises, did not have the effect of rendering the search irregular.
[18]On the whole matter we shall answer question 1 in the affirmative. Question 2 is superseded and, in accordance with the submission of the advocate depute, we shall find it unnecessary to answer question 3.