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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Gillies v. Procurator Fiscal, Elgin [2008] ScotHC HCJAC_55 (01 October 2008)
URL: http://www.bailii.org/scot/cases/ScotHC/2008/HCJAC_55.html
Cite as: 2008 SCL 1316, 2008 GWD 31-476, [2008] ScotHC HCJAC_55, 2008 SLT 978, 2009 JC 25, [2008] HCJAC 55, 2008 SCCR 887

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APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Wheatley

Lord Reed

Lord Carloway

 

 

 

 

 

 

 

 

 

 

 

[2008] HCJAC 55

Appeal No: XJ358/08

 

OPINION OF THE COURT

 

delivered by LORD REED

 

in

 

APPEAL BY STATED CASE

 

by

 

JACQUELINE MICHELLE GILLIES

Appellant;

against

 

PROCURATOR FISCAL, ELGIN

Respondent:

 

_______

 

 

 

Act: Taylor, Solicitor Advocate; Paterson Bell, Solicitors

Alt: Beardmore, A.D.; Crown Agent

 

1 October 2008

Introduction
[1] This appeal raises a question of constitutional law: whether a police officer is entitled, without a warrant, to enter private property against the wishes of the householder in order to detain a person under section 14 of the Criminal Procedure (Scotland) Act 1995.

[2] The appellant was convicted at Elgin Sheriff Court of a charge in the following terms:

"on 4 September 2007 in 1 Meadow Crescent, Elgin, Moray you JACQUELINE MICHELLE GILLIES did obstruct Janice Wink and Werner Theron, both constables, Grampian Police, then in the execution of their duty and did close a door on said officers when they were lawfully detaining another who was allowed to run from the officers as a result

CONTRARY to the Police (Scotland) Act 1967, Section 41(1)(a)".

[3] The relevant circumstances, as found by the sheriff, can be summarised as follows. The appellant is the householder of a flat located at the address in the charge. On the date in question, PCs Wink and Theron visited that address in order to ascertain the whereabouts of James Scott, whom they believed to be the appellant's boyfriend. They wished to trace Scott so as to interview him about an allegation that he was responsible for an act of vandalism committed two months previously. The appellant told the officers that Scott was not there, and they left. A short time later they returned in order to ask her if she would consent to their searching the flat for Scott. When the appellant answered the door, it was sufficiently ajar for the officers to see into the hallway. The appellant was asked if she would consent to a search of the flat. She refused permission. As the officers were speaking to the appellant, they saw Scott in the hallway. He was cautioned by PC Theron and told that he was detained under section 14 of the 1995 Act. Scott was too far away from the officers for them to lay hands on him when he was told this. Scott then moved briskly up the hallway, away from the officers. At about the same time, the appellant shouted "He's not going anywhere", and attempted to close the front door. She was prevented from doing so by PC Wink placing her foot in the door. The officers then forced the door open by pushing against the weight of the appellant, who ended up between the door and the wall. The officers entered the flat and found Scott in the kitchen. Scott was then taken from the flat.

[4] In convicting the appellant, the sheriff accepted a submission on behalf of the Crown that Scott's detention was "in place" before the appellant attempted to close the door, and that the officers were entitled to enter the appellant's house in order to make that detention "effective". Before this court, however, the Crown conceded that Scott could not be said to have been detained at the point when the appellant attempted to close the door, since he was not then in the officers' custody. That concession appears to us to be correct: the six hour time limit under section 14(2), which runs from the time when detention begins, cannot be understood as being triggered by the utterance of the words "I detain you", if the putative detainee then runs off and remains at liberty. Section 14(1) requires that a person who is detained should be taken to a police station or other premises, and the procedural duties imposed by section 14(6) and (9) are predicated upon compliance with that requirement; but the requirement can only be fulfilled if the person is under the control of the police. That interpretation of the terms "detain" and "detention" is consistent with their interpretation in other contexts. In that connection, we note in particular that the power currently contained in section 14 of the 1995 Act was first introduced by section 2 of the Criminal Justice (Scotland) Act 1980; and the word "detained", where used in section 14 of the 1980 Act, was interpreted in Brawls v Walkingshaw 1994 S.C.C.R. 7:

"The essential element of detention, within the proper meaning of that word, is the intervention of some outside agency to ensure that the person remains where he has been put. To detain somebody is to keep him in confinement or under restraint"

(per Lord Justice-General Hope at pages 11-12).

[5] In the light of the concession that Scott had not been detained when the appellant attempted to close the door, the contention of the Crown before this court was that the officers were entitled to enter the appellant's house, against her wishes and without a warrant, in order to detain Scott. The appellant had therefore obstructed the officers in the execution of their duty when she attempted to prevent them from entering her house in order to detain Scott. Although police officers possessed no statutory right to enter private premises in order to detain a person, they possessed such a power at common law in circumstances of urgency. Such circumstances existed in the present case, since the officers were (in the sheriff's words) "in hot pursuit". So ran the argument. It was unsupported by any reference to authority. The contrary argument on behalf of the appellant was equally unburdened by any relevant authorities. Our attention was however directed to the fact that Parliament had conferred on police officers a power to use reasonable force in exercising the power to detain (under section 14(8)), but had refrained from conferring any power of entry.

 

Discussion
[6]
Section 2 of the 1980 Act conferred upon the police entirely new powers of detention and inquiry, which are now to be found in section 14 of the 1995 Act. That provision, like its predecessor, makes significant inroads upon rights of private citizens that are recognised and protected by the common law. It applies to a person who is suspected on reasonable grounds of having committed an offence, but who has not been arrested, and who is, of course, presumed to be innocent. Such a person can be detained and taken to a police station, held for up to six hours, questioned and searched. He is required to provide information to the police about his personal details. Force can be used in order to detain him and search him. Police officers are thus authorised by section 14 to do several things to private individuals which, in the absence of statutory authorisation, would amount to delicts actionable in damages, or restrainable by interdict, at the instance of the person whose common law rights had been infringed. In conferring these powers upon the police, Parliament also made elaborate provision in sections 14 and 15 (and their predecessors) for procedural safeguards designed for the protection of detained persons.

[7] A person whom a police officer wishes to detain may be in a public place, or on private property on to which the officer has been invited (expressly or impliedly) or where he is entitled to be by virtue of some statutory power of entry. The person may however be on private property - his own or that of some third party - on to which the officer has not been invited, and to which he may indeed have been refused entry. If a police officer enters private property without permission to do so, he is (unless authorised by common law or statute) acting unlawfully under the civil law: a fortiori, if force is used without lawful justification. As Brennan J observed in Halliday v Nevill (1984) 155 C.L.R. 1 at paragraph 4:

"A police officer who enters or remains on private property without the leave and licence of the person in possession or entitled to possession commits a trespass and acts outside the course of his duty unless his entering or remaining on the premises is authorized or excused by law."

 

That principle is, in Brennan J's words, "of ancient origin but of enduring importance", and forms part of the common heritage of the legal systems of the United Kingdom and the wider common law world (cf. Entick v Carrington (1765) 19 St Tr 1029, 95 ER 807 ; Great Central Railway Co v Bates [1921] 3 K.B. 578; Eccles v Bourque (1974) 50 D.L.R. (3d) 753; Kuru v State of New South Wales [2008] H.C.A. 26).

[8] That common law principle is reinforced by section 6 of the Human Rights Act 1998, in terms of which it is unlawful for a public authority (such as the police) to act in a way which is incompatible with a Convention right, such as the right to respect for one's home under Article 8 of the European Convention on Human Rights. Article 8(2) requires that any interference by a public authority with the exercise of that right must fulfil a number of requirements. It must, in the first place, be "in accordance with the law": a requirement which entails not merely that the interference has a legal basis, but that the law meets the tests of accessibility and foreseeability, and determines with sufficient clarity the scope of any discretionary authority conferred. The interference must in addition be "necessary in a democratic society" on one of a number of grounds, including the prevention of disorder or crime.

[9] It follows that, in order to enter private property without invitation (and, a fortiori, to enter private property forcibly and against the will of the occupier), police officers ordinarily require the authority of the courts in the form of a warrant. A number of statutes also authorise a police officer to enter premises without a warrant, for particular purposes. In the absence of a warrant, or of statutory authority, it is only in limited circumstances that a police officer is entitled to enter private property under the common law.

[10] In the present case, the officers had obtained no warrant authorising them to enter the appellant's house: section 14 of the 1995 Act makes no provision for the obtaining of a warrant to detain or to enter premises for that purpose. Nor does section 14 make provision for a power of entry on to private property. No contention was advanced in the present appeal that such provision was implicit in section 14; and we could not in any event have accepted such a contention. As we have mentioned, Parliament has in other contexts authorised entry by police officers upon private property for purposes intended to assist in the investigation or suppression of crime. Parliament's omission of any such power from section 14 is unlikely to have been unintended, particularly in the context of the elaborate provision made in respect of the procedure to be followed on detention, and the conferral of an express power to use reasonable force in exercising the power to detain. Parliament cannot have considered that a power of entry would necessarily follow from the creation of a power to detain, by analogy with the power of entry attendant (at least in certain circumstances, as explained below) upon the power to arrest: detention was not created as a statutory substitute for arrest, but was a novel concept, of a different legal nature. To treat a power of forcible entry on to private property as implicit in the legislation would also be contrary to the presumption noted by Brennan J in Halliday v Nevill at paragraph 15:

"The common law presumes that when Parliament creates a novel power, it does not intend thereby to authorize the commission of a trespass to facilitate its exercise: Morris v Beardmore [1981] A.C. 446; Colet v The Queen (1981) 119 DLR (3d) 521 . The general protection which the common law accords to persons in possession of private property is undiminished by the creation of the novel power unless Parliament expressly provides otherwise."

 

Reference might also be made to the speech of Lord Scarman in Morris v Beardmore at page 463:

"When for the detection, prevention, or prosecution of crime Parliament confers upon a constable a power or right which curtails the rights of others, it is to be expected that Parliament intended the curtailment to extend no further than its express authorisation. A constable, who in purported execution of his duty has infringed rights which Parliament has not expressly curtailed, will not, therefore, be able to show that he has acted in execution of his duty, unless (and this will be rare) it can be shown by necessary implication that Parliament must have intended to authorise such infringement ...

 

[I]t is not the task of judges, exercising their ingenuity in the field of implication, to go further in the invasion of fundamental private rights and liberties than Parliament has expressly authorised."

 

[11] There remains the question whether, as was submitted on behalf of the Crown, the actions of the police officers in the present case were authorised by the common law. In that regard, a general statement of principle can be found in Renton & Brown's Criminal Procedure, 6th edition, at paragraph 7-05:

"Where the constable is carrying out an arrest for a serious crime, but not for a mere breach of the peace or other minor offence, he may force entry into premises without warrant if refused admission".

 

That statement is amply supported. Hume, in his discussion of arrest without a warrant, states (Commentaries on Crimes, II.76):

"As to the breaking open of doors on such occasions, I have not found any authority, to warrant a constable in doing so, in his pursuit of one who flies after committing a breach of the peace ... But it is not to be imagined, that a constable shall be subject to the like restraint in cases of murder, housebreaking, robbery, or the like, committed in his presence, or known to him by complaint of others who were present, or have been the sufferers on such occasions."

 

Alison is to similar effect (Criminal Law, II.118):

"As to the power of breaking open doors in pursuit of a criminal on such occasions, it is undoubted, that in cases of murder, robbery, housebreaking, rape, fire-raising, treason, or the like, which by their violence threaten the peace of society, he may break open doors where the fugitive has taken refuge, or he has received reasonable information he has taken refuge, without any warrant at all. But this does not hold with persons charged with a breach of the peace, unless he actually hears a tumult or affray going on, when it becomes his duty to break in to prevent a breach of the peace."

 

MacDonald's Criminal Law (5th edition, p.197) states the general principle in similar terms to Renton & Brown:

"In cases of serious crime officers may without a warrant break open doors and enter premises incidentally to the apprehension of an offender. But in mere breaches of the peace they may not break in, except to quell a disturbance actually proceeding."

 

A relatively recent example of the application of that principle is the case of Campbell v Vannet 1997 S.C.C.R. 787, where officers who had just seen a serious crime (of supplying or offering to supply heroin) being committed from within premises were held to be entitled to force entry to the premises with a view to apprehending the person who was suspected of having committed the crime. In the present case, on the other hand, the officers did not enter the premises for the purpose of making an arrest; nor, in any event, was Scott suspected of having committed a serious crime. There is no question in the present case of the officers having entered the premises in order to quell a disturbance (cf. Smith v Hawkes (1980) S.C.C.R. Supp. 261; Moffat v McFadyen 1999 G.W.D. 22-1038, BAILII: [1999] ScotHC 117). The common law principle which we have discussed therefore has no application.

[12] It is unnecessary for us to consider another line of authority, concerned with the admissibility of evidence recovered in circumstances of urgency by entering premises without a warrant (e.g. McPherson v HM Advocate 1972 S.L.T. (Notes) 71; Cairns v Keene 1983 S.C.C.R. 277). Whether or not officers entering premises for that purpose might, in some such circumstances, be regarded as acting in the execution of their duty is not a question which need be considered in the present case, where the officers had no such purpose in mind.

[13] We also require to note the case of Turnbull v Scott 1990 S.C.C.R. 614. The circumstances were that police officers had gone to the appellant's house in order to detain him under section 2 of the 1980 Act. They obtained no response after knocking at the front door, although at one point the appellant appeared at an upper window. Finding the back door ajar, the officers entered the house through the open door "and, this is important, they did so because they were unsure whether the appellant was still in the house or had gone away" (per Lord Cowie, delivering the opinion of the court, at page 617). The court held that the officers were acting in the execution of their duty when they crossed the threshold. The court stated (at page 617) that the question whether the police have acted unlawfully and gone beyond the execution of their duties in entering premises without a warrant must be dependent on the particular circumstances of each case. That is of course correct; but the relationship between those circumstances and the answer to the question must depend on a principle of law. In the absence of any clear indication of what that principle might be, the decision in Turnbull is of limited assistance. It is however apparent that the court regarded as important the finding that the officers entered the house because they were unsure whether the person they wished to detain was still there or had gone away. The court also considered that "obviously" the position might have been different if the officers had been told to leave or if the door had been closed (which suggests that the decision might be explained on the basis that a licence to enter the house had impliedly been given).

[14] If, then, no existing common law principle authorises police officers to enter private property in order to detain a person, the question might be asked whether the common law ought to be developed by this court so as to confer such authority (e.g. by drawing an analogy between arrest and detention, or between search and detention). In our opinion that would not be appropriate. As Lord Scarman indicated in Morris v Beardmore at page 463, in the dictum which we have already cited, it is not for the courts to alter the balance between individual rights and the powers of public officials. We also note that any such development of the common law would involve an interference with Convention rights protected under the Human Rights Act 1998: in particular, the right guaranteed by Article 8(1). (Article 7 might also be engaged, in so far as such a development had the effect of criminalising the conduct of a person resisting what would otherwise have been a trespass). The law authorising such an interference must, as we have explained, meet Convention requirements of accessibility, foreseeability and clarity, and must also meet the Convention test of necessity. In that regard, we note the observations of Lord Bingham of Cornhill in R (Laporte) v Chief Constable of Gloucestershire [2007] 2 AC 105 at para.52, where police powers to control demonstrations were in issue:

"I would add, lastly, that if (on which I express no opinion) the public interest requires that the power of the police to control demonstrations of this kind should be extended, any such extension should in my opinion be effected by legislative enactment and not judicial decision... The Convention test of necessity does not require that a restriction be indispensable, but nor is it enough that it be useful, reasonable or desirable: Handyside v United Kingdom (1976) 1 EHRR 737, para 48; Silver v United Kingdom (1983) 5 EHRR 347, para 97. Assessment of whether a new restriction meets the exacting Convention test of necessity calls in the first instance for the wide consultation and inquiry and democratic consideration which should characterise the legislative process, not the more narrowly focused process of judicial decision. This is not a field in which judicial development of the law is at all appropriate."

 

Conclusions
[15] For these reasons, we are of the opinion that the police officers possessed no authority to enter the appellant's house on the occasion in question. It follows that they were acting unlawfully, and that she was entitled to close her front door so as to prevent them from entering her house notwithstanding her refusal of permission.

[16] The questions asked by the sheriff in the stated case are:

(1) Was I entitled to repel the submission of No Case to Answer made in terms of Section 160 of the Criminal Procedure (Scotland) Act 1995?

(2) Was I entitled to convict the Appellant?

We shall answer those questions in the negative, and quash the conviction.

 


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