Introduction

This appeal under section 74 of the Criminal Procedure (Scotland) Act 1995 arose from an indictment in the sheriff court charging the appellant, J K‑P, with offences under the Civic Government (Scotland) Act 1982 relating to indecent images. The pivotal question was whether evidence recovered from the appellant’s mobile phone should be excluded on the basis that the police unlawfully brought him from his workplace to his home, where a search warrant was being executed, amounting to a de facto arrest and an unfair or irregular procedure.

The appeal focused on two principal issues:

• Whether, in the circumstances, the appellant was in de facto custody when he accompanied officers to his home address—particularly in light of the use of child locks in the police vehicle and limited disclosure of the purpose of the enquiry at his workplace.
• Whether, if there was any irregularity in obtaining or executing the search and seizing the phone, the evidence should nonetheless be admitted under the Lawrie v Muir excusal doctrine.

After an evidential hearing, the sheriff repelled the defence’s preliminary plea to exclude the phone evidence. The High Court refused the section 74 appeal and now provides written reasons. The case refines the contours of de facto custody and voluntariness in police-led conveyancing to the locus of a warrant, and it confirms how the authorities in Ambrose v Harris, Mclean v HM Advocate, Freeburn v HM Advocate, and Lawrie v Muir interlock in digital evidence cases.

Summary of the Judgment

The High Court upheld the sheriff’s decision to admit the phone evidence and refused the appeal. Key holdings were:

• The sheriff was entitled to find as fact that the appellant accompanied officers voluntarily from his workplace to his home, where the warrant was executed. There was no coercion, restraint, or trickery.
• The appellant was cautioned at common law on arrival at the locus before the search proceeded. The warrant was read, and the phone was recovered at the locus in the course of a lawful search.
• The mere presence of child locks in the back of the police vehicle did not convert a voluntary lift into de facto custody; if asked, the officer would have let the appellant out. This factor was “of no consequence.”
• The police were not obliged to detail the nature of the enquiry at the appellant’s workplace; limited disclosure there was not unfair (cf. Freeburn).
• Even if there had been an irregularity (which the court did not accept), the evidence would in any event have been excused under Lawrie v Muir given good faith, seriousness of the offences, and the inevitability of lawful recovery later.

Accordingly, the appeal was refused.

Analysis

Precedents Cited and Their Influence

• Ambrose v Harris [2011] UKSC 43

  Ambrose refines the “de facto custody” test: the question is whether there is a significant curtailment of a person’s freedom of action such that procedural safeguards are triggered (most famously, the right to legal advice following Cadder). The sheriff explicitly applied Ambrose’s totality test and concluded there was no significant curtailment here. The High Court held that the sheriff’s approach was legally correct and supported by the factual findings.

• Mclean v HM Advocate [2023] HCJAC 16

  Mclean draws a line between someone being a “suspect in a general sense” and suspicion having crystallised sufficiently to justify arrest or charge. In Mclean, multiple occupants meant suspicion was diffuse; here, the social media account was linked to the appellant, but the police still lacked evidence that he possessed the images. The High Court accepted the sheriff’s alignment with Mclean: the appellant was a suspect in the general sense, and the police did not yet have the evidential basis to arrest.

• Freeburn v HM Advocate 2013 SLT 70

  Cited to support the proposition that the police are not required to disclose full details of an enquiry in sensitive or potentially inappropriate settings (e.g., at a workplace). The High Court considered the officers’ limited disclosure to be consistent with fairness, given context and privacy concerns.

• Lawrie v Muir 1950 JC 19

  Lawrie v Muir establishes a balancing test to excuse irregularities where the police act in good faith, the offence is serious, the irregularity is not deliberate or egregious, and exclusion would unduly hamper justice. Although no irregularity was found, the court held that the evidence would, in any event, have been excusable under Lawrie v Muir because the officers acted in good faith, the offences were serious, and a lawful seizure of the phone would likely have occurred later if officers had simply waited for the appellant to return home.

Legal Reasoning

The High Court’s reasoning is anchored in two pillars: deference to the sheriff’s credibility and reliability findings, and the correct legal framework for de facto custody and fairness in police procedure.

1. Credibility and factual findings

   The sheriff preferred the evidence of the three police witnesses over the appellant and his partner. He rejected assertions that officers used force, insisted that the appellant must go, or instructed him to bring his phone. He found the appellant voluntarily accompanied the police and voluntarily retrieved his phone before departure. Appellate intervention in such factual determinations is rare; the High Court emphasised that the appeal largely invited a re‑weighing of evidence, which was not warranted.

2. Ambrose test applied to the whole circumstances

   Under Ambrose, the court asks whether, objectively, there was a significant curtailment of freedom amounting to de facto custody. Key facts undercutting custody here included:

   • No handcuffs, restraint, or physical compulsion; no command to attend.
   • No threat, trickery, or deception; the sheriff found good faith and a straightforward invitation to return home so the search could proceed in his presence.
   • Child locks in the car were a non‑determinative feature; the sheriff was entitled to find the appellant could have asked to be let out and would have been permitted to leave.
   • A caution at common law was administered at the locus before the search continued.

   These findings supported the conclusion that the appellant’s freedom of action was not significantly curtailed before the caution. There was, therefore, no de facto arrest.

3. “Suspect in a general sense” versus grounds for arrest

   Echoing Mclean, the court accepted that while the appellant was a suspect, the police did not yet have reasonable grounds to arrest him or sufficient evidence to charge him (e.g., proof that the indecent images were in his possession). Several people had access to the premises; others could have used his device or account. The officers’ decision to proceed with the search in his presence was standard practice, linked to duty of care for the property and transparency during execution of the warrant.

4. Limited disclosure at the workplace

   Relying on Freeburn, the court endorsed the officers’ choice not to discuss the nature of the enquiry in the workplace environment. That limitation did not render the procedure unfair or coercive; rather, it was a proportionate and appropriate choice.

5. Seizure of the phone under the warrant

   The phone was recovered at the locus in the course of executing a warrant. The sheriff found, and the High Court accepted, that the appellant was not told to bring the phone and that it was not seized until at the address, after a caution and the reading of the warrant. On those facts, the seizure fell squarely within the warrant’s scope.

6. Alternative ground: Lawrie v Muir excusal

   Even if some irregularity had been established, the court would have excused it. The police acted in good faith; the offences were serious; and if officers had simply waited for the appellant to return home, the same device would have been lawfully seized. The balancing exercise under Lawrie v Muir therefore favoured admission.

Impact and Future Significance

This decision is significant for both police practice and defence strategy in digital evidence cases, particularly those involving indecent images recovered from personal devices pursuant to warrants.

• Police practice

  • Officers may invite a suspect to return to the locus for execution of a warrant without that invitation, by itself, creating de facto custody—provided there is no coercion, restraint, or deception.
  • The use of child locks in the back of a police vehicle, standing alone, is neutral; it does not convert a voluntary lift into custody if the person can ask to be let out and would be permitted to leave.
  • Limited disclosure of the enquiry at sensitive locations (e.g., workplaces) is permissible and may be preferable; full exposition is not a fairness requirement.
  • Cautioning at the locus before progressing with a search remains best practice; so does avoiding any direction that a suspect must bring a device to the locus.

• Defence strategy

  • Arguments for de facto custody must rest on credible, corroborated indicators of compulsion (e.g., commands, restraint, threat, deception). The appellant’s subjective belief will not suffice if rejected on the facts.
  • Challenging warrants or seizures on the basis of “significant curtailment” will likely fail where a sheriff has made clear, defensible findings that the attendance was voluntary and the warrant was executed fairly.
  • Even if an irregularity is identified, Lawrie v Muir may operate to admit the evidence, especially in serious offences where police acted in good faith and lawful recovery would have been inevitable.

• Substantive clarification

  • The case reinforces the Mclean distinction between a general suspect and one against whom suspicion has crystallised sufficiently for arrest; IP or account-link intelligence often places a person in the former category until possession is evidenced.
  • It also clarifies that routine, good‑faith measures taken to ensure presence of an occupant (and duty of care to property) during a search do not themselves infringe fairness or create custody.

Complex Concepts Simplified

• De facto custody

  Even without a formal arrest, a person may be treated as “in custody” if, considering all circumstances, their freedom of action is significantly curtailed (e.g., through restraint, commands they cannot refuse, or deception). If de facto custody exists, safeguards such as the right to legal advice typically engage before questioning.

• Suspect in a general sense vs. grounds to arrest

  A “general suspect” is someone police think may be involved, but without sufficient evidence to arrest or charge. “Grounds to arrest” require an evidential threshold (reasonable grounds) pointing to the person’s involvement, such as possession of illegal images on a device attributable to them.

• Duty of care during search

  Officers often seek an occupant’s presence during a search to ensure transparency, prevent unnecessary damage, and handle property responsibly. Inviting an occupant to attend is not, without more, coercive.

• Caution at common law

  Before questioning a suspect about their involvement in a crime, police caution them that they are not obliged to say anything. Administering a caution at the locus before proceeding with a search and any engagement helps ensure fairness.

• Lawrie v Muir excusal

  A balancing test permitting evidence to be admitted despite an irregularity if the police acted in good faith, the offence is serious, and exclusion would be disproportionate in the circumstances. It prevents technical missteps from defeating justice where fairness has not been compromised.

Conclusion

J K‑P v HMA [2025] HCJAC 49 clarifies that a voluntary conveyance by police to a suspect’s home for the execution of a search warrant does not, without more, amount to de facto custody. The use of child locks and limited disclosure at a workplace are not determinative of custody or unfairness in the absence of coercion, restraint, deception, or questioning without caution. The decision reinforces the distinction between a “general suspect” and arrestable suspicion (Mclean), confirms the practical acceptability of limited disclosure at sensitive locations (Freeburn), and underscores the continuing relevance of Lawrie v Muir as a backstop excusal doctrine in serious cases where officers act in good faith.

The key takeaway is doctrinal and practical: voluntariness, properly evidenced, remains the touchstone; child locks and concise workplace communication are neutral features; and digital evidence seized under a warrant will be admitted where execution is fair and any alleged irregularity would, in any case, be excused.

Key References

• Ambrose v Harris [2011] UKSC 43
• Mclean v HM Advocate [2023] HCJAC 16
• Freeburn v HM Advocate 2013 SLT 70
• Lawrie v Muir 1950 JC 19
• Criminal Procedure (Scotland) Act 1995, s. 74