APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Mackay of Drumadoon Lord Bonomy Lord Malcolm	[2012] HCJAC 49 Appeal No: XJ1286/11 OPINION OF THE COURT delivered by LORD BONOMY in APPEAL AGAINST CONVICTION AND SENTENCE by JOHN JAMES PATON Appellant; against PROCURATOR FISCAL, GLASGOW Respondent: _______

Appellant: Paterson, Solicitor Advocate; Paterson Bell for Finnieston, Franchi and McWilliams, Glasgow

Respondent: M Stuart, Advocate Depute; Crown Agent

17 April 2012

Background

[1] The appellant was convicted by the stipendiary magistrate in Glasgow of failing to cooperate with a preliminary breath test and driving with 92microgrammes of alcohol in 100millilitres of breath in excess of the limit of 35microgrammes, contrary to sections 6 and 5 respectively of the Road Traffic Act 1988 ("1988 Act"). The issue in the case is whether the evidence obtained within the appellant's home in relation to the first charge, and later within the police office in relation to the second charge following his arrest at home, was admissible, following as it did upon entry being forced to his home without a warrant or statutory authority and without his consent.

The Facts

[2] A motorist visiting a friend became concerned about what he saw as he manoeuvred his car to park it. There was a pick-up truck on the pavement between a wall and a car parked at the kerbside. It appeared to the witness that the pick-up truck had crashed into the wall. The witness saw a male figure, whom he later identified as the appellant, exit from the truck and make off on foot. He appeared unsteady on his feet. The police were contacted.

[3] The police officers who attended found that the truck was facing downhill at an angle and was on the pavement resting against a wall. It was unlocked, with the driver's window open, the lights on, and a smell of alcohol emanating from the driver's cab. There were two cans of lager inside the cab and another lying on the road. A check on the police national computer identified the appellant as the registered keeper and sole authorised user of the truck and his residence as nearby.

[4] The police attended there immediately and found that the lights were on in the living room. They knocked several times on the door and on the living room window but got no reply. On account of what they had observed at the scene of the apparent collision of the vehicle, the officers were concerned for the welfare of the driver. They contacted their control and a police sergeant attended at the house shortly thereafter. Meanwhile the officers had continued to knock on the door and window to no avail. Following the arrival of the sergeant, a request was made to their control to bring a "ramit" device to gain entry to the house by force. Following further knocking, which elicited no response, the ramit device was used to force entry through the front door.

[5] After entering the house the police conducted a search for the driver. They found him in bed in a bedroom, in the words of one witness "pretending to be asleep" and in the words of another "who appeared to be sleeping". The smell of alcohol from his breath and his apparent intoxication led to the police officers requiring him in terms of section 172 of the 1988 Act to identify the driver of the truck, to which he replied: "Me, John James Paton". He was then required to provide a sample of breath for analysis and on failing to do so was arrested and taken to the police office. There he was required to, and duly did, provide two samples of breath. When cautioned and charged with contravening section 5 of the 1988 Act, he replied: "I'm no wrong. I've had a couple of beers in the house".

[6] When the appellant's agent objected to the admission of all evidence of the enquiry following the finding of the appellant in the bedroom, the stipendiary magistrate, with the agreement of the agent, proceeded to hear the evidence under reservation as to its admissibility. Having heard all the evidence and been addressed by the parties, the stipendiary magistrate found the factual situation to be as narrated above and made the following particular finding in fact:

"6. Given the position of said motor vehicle both police officers were concerned for the welfare of the driver. They proceeded on foot to the Appellant's house. They repeatedly knocked loudly on the front door of the property and on the living room window but got no reply. They were unable to gain entry by knocking on the door or window. The house lights were illuminated. Both police officers remained concerned about the welfare of the driver of the said motor vehicle. They contacted their control and a police sergeant attended there. Having been unable to gain a reply from any person within the said dwellinghouse they contacted their control and requested a ramit device and they forced entry to said dwellinghouse by use of a ramit device having been outside the house for approximately 30minutes."

Submissions

[7] It was the contention of Mr Paterson for the appellant that the evidence obtained thereafter should have been excluded on the ground that the circumstances of this case did not justify entry being gained to the house by force without lawful authority or the consent of the occupier, the appellant. Under reference to Gillies v Ralph [2008] HCJAC 55, 2008 SCCR 887 he submitted that the circumstances narrated above did not trigger any common law power and that such entry was inevitably unlawful in the absence of some statutory authority or judicial warrant. Mr Paterson referred also to Turnbull v Scott 1990 SCCR 614 as an example of a situation where entry without consent or authorisation was legitimate, but did so for the purpose of emphasising the opinion of the court that the position might have been different if the premises had been secured and the entry door had not been lying ajar. There the officers had been acting in the course of their duty. That could not be said of the officers in the present case whose duty did not extend to entering private homes without invitation. Were it to be otherwise, the merry reveller meandering home from an evening of celebration would be subject to unwanted police intrusion under the guise of an interest in his welfare. Mr Paterson also made submissions to the effect that actions such as those taken in this case could only be justified at common law in the event that they were necessary and proportionate steps to address a concern that required urgent attention. This was not a case where urgent action was required. Further enquiry might have been undertaken and a warrant could have been sought on the strength of all information then available.

[8] In response the Advocate depute made four points. He invited us to distinguish Gillies v Ralph on the ground that the ratio was confined to the question whether the power of detention under section 14 of the Criminal Procedure (Scotland) Act 1995 included a power to enter premises to effect a detention. Secondly, the issue in the present case concerned the exercise by police officers of the duty imposed upon them by section 17(1)(a)(iii) of the Police (Scotland) Act 1967 to guard, patrol and watch so as "to protect life and property". Police officers who took what they considered to be reasonable steps to investigate the condition of a person in light of their concern for his welfare acted in the course of their duty. The Advocate depute's third point, made under reference to He Wuchao v HM Advocate [2011] HCJAC 36, was that a reasonable belief that a certain course of action was necessary to prevent a person coming to harm entitled an officer, in the exercise of duty, to take reasonable steps to save a person believed to be at risk from harm. Forcing entry to the appellant's home in the circumstances of this case satisfied that test. His fourth point was a longstop in the event that the belief that led to the action was not thought by the court to be reasonable. In that event, if the court was satisfied that the police officers' actions were carried out in good faith, the question for the court would be whether the inappropriate or irregular entry into the premises should be excused, an important consideration always being whether the admission of the evidence so obtained would be fair to the appellants (Lawrie v Muir 1950 JC 19).

Discussion and Decision

[9] We note the opinion of the court in Turnbull v Scott that there is no absolute rule that police officers may only enter private premises if they have a warrant or statutory authority to do so; that, in the absence of such authority, their right depends on the circumstances; and that one of the important circumstances is whether they are acting in the execution of their duty. While useful guidance as to the limitations upon police interference with private property in the course of the execution of their duty can be found in Gillies v Ralph, we agree with the Advocate depute that the decision related to circumstances quite different from those of the present case and involved the exercise of a power which does not feature in the present case. It is plain that circumstances will regularly occur in which it will be appropriate for police officers to implement their duty to protect life by taking reasonable steps designed to achieve that end. 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. Such a major invasion of privacy requires justification as a necessary and proportionate act having regard to the prevailing circumstances. The question for us has therefore come to be whether the findings made by the stipendiary magistrate established that there were reasonable grounds for the police action.

[10] In our opinion the police officers did have reasonable grounds for forcing entry to the house. In particular there was a sound basis for them to be concerned about the welfare of the appellant and the possibility that, if left alone, he could be at risk of harm. His vehicle, which he alone had authority to drive, was abandoned in a position where it had apparently crossed onto the pavement and collided with a wall and in a condition (unlocked, lights on, window open) indicative of its having been abandoned in a state of panic or disorientation. The situation was further complicated by the presence of unopened cans of lager within the vehicle and immediately outside it. The officers' attempts shortly after the vehicle had been abandoned to elicit any response from the house which was indentified as the appellant's and in the direction of which he was seen to go after leaving the vehicle and where the lights were on provided further cause for concern for the appellant's welfare. In our opinion there was at that stage a reasonable basis for the police officers to be sufficiently concerned for the welfare of the appellant to consider forcing entry to the house to ensure that he was not at risk of harm. The steps that they followed thereafter by obtaining the attendance of a police sergeant and thereafter requesting the ramit device to force entry were sensible in the circumstances. Having continued to try to attract the attention of anyone within the dwellinghouse throughout the period of about 30 minutes, and there having been no reaction at all, it was, in our opinion, entirely reasonable to force entry to try to allay their concern about the appellant's welfare. In taking that action at the time at which they did, we consider that they were acting in the course of their duty under section 17 of the 1967 Act, that the steps they took were reasonable, and that they had reasonable grounds for deciding to do so. The situation facing them required urgent action. In order to implement the duty upon them to protect life it was necessary to force entry, there being no other way for them to gain entry. That action was also, in our opinion, an appropriate and proportionate response to the circumstances facing the officers. having regard to the relative significance of the risk of harm to the appellant, the physical damage to the property and the invasion of his privacy.

[11] For these reasons we consider that the stipendiary magistrate correctly admitted the evidence of events within the house and at the police office. Had we considered that the circumstances did not justify a finding that there were reasonable grounds to be sufficiently concerned about the welfare of the appellant as to force entry to his home, the question would have arisen whether to give effect to the Advocate depute's fourth point. Since the stipendiary magistrate was plainly satisfied that the police officers acted in good faith, the question for us would have been whether in the circumstances the forced entry and the obtaining of evidence that ensued should be excused. Having regard to the relative gravity of the offences involved and the fact that the actions of the police officers were undertaken in good faith, we would have considered it appropriate to excuse the police conduct and admit the evidence. Mr Paterson did not identify any unfairness to the appellant that would result from following such a course.