Summary of Opinion — Appeal under section 74, Criminal Procedure (Scotland) Act 1995

Factual and Procedural Background

The Appellant was indicted in the sheriff court on charges under the Civic Government (Scotland) Act 1982 concerning indecent images said to have been discovered following examination of the Appellant's mobile phone. A preliminary plea challenged the admissibility of evidence recovered from the phone on the basis that the Appellant had been taken from his workplace to a residence where a search warrant was being executed, and that this constituted an unlawful "de facto arrest" and an unlawful search.

An evidential hearing was held before the sheriff in The City. Evidence was led from three police officers, the Appellant, the Appellant's partner (an occupant of the residence), and the Appellant's father. The sheriff repelled the plea. The Appellant appealed under section 74; the appeal was refused by the Appeal Court composed of Judge Matthews, Judge Wise and Judge Clark. The court indicated reasons would follow and those reasons are recorded in this opinion.

Legal Issues Presented

1. Whether the Appellant was placed in "de facto" custody (significant curtailment of freedom of action) when police attended his workplace and conveyed him to the residence where a warrant was to be executed.
2. Whether the subsequent search and the recovery of the mobile phone and its contents were admissible, or whether they were the product of an unlawful detention/search and therefore inadmissible.
3. Whether, if there was any irregularity in the police conduct or the search, that irregularity should be excused (with specific reference to the principles in Lawrie v Muir).

Arguments of the Parties

Appellant's Arguments

• The Appellant submitted that the police identified him as a suspect based on intelligence linking a social media account to him and, rather than wait for him to return, went to his workplace and effectively required him to attend the residence; this amounted to a de facto arrest.
• It was argued that the Appellant was not informed of the nature of the enquiry, was not cautioned, arrested formally, or informed of rights, and was restrained to a degree (officers held his arm; child locks meant he could not leave the police vehicle), such that his freedom of action was significantly curtailed.
• The retrieval of the phone was said to be consistent with police instruction, and therefore the phone and material recovered should be excluded as the fruit of an unlawful detention/search.
• The sheriff erred in focusing on whether physical force was used and failed properly to apply the test from Ambrose v Harris regarding significant curtailment of freedom of action.

Respondent's Arguments

• The Respondent explained that the police had intelligence connecting an IP address/social media account to indecent images, but they lacked evidence attributing usage to a particular individual; more than one person occupied the residence.
• The police went to the Appellant's workplace as a matter of operational practice to have the person present for a search; they invited the Appellant to accompany them and did not use force or compulsion.
• There were no grounds to arrest the Appellant before the search because there was insufficient evidence to charge him; the Appellant's status was at most that of a suspect in a general sense (analogue drawn to Mclean).
• The sheriff was entitled to find the attendance was voluntary, there was no significant curtailment of freedom, and the procedures were fair; alternatively, any irregularity should be excused (Lawrie v Muir) given the seriousness of the offences and the officers' good faith.

Table of Precedents Cited

Court's Reasoning and Analysis

The court's analysis rested primarily on the sheriff's factual findings and credibility assessments. The sheriff preferred the accounts of the police officers to those of the Appellant and the Appellant's partner, finding the officers acted in good faith and did not employ trickery, deception or force to secure the Appellant's attendance at the residence. The sheriff concluded the Appellant was not in de facto custody.

The sheriff explicitly considered the test set out in Ambrose v Harris (whether there was a significant curtailment of freedom of action) and found that the Appellant's freedom had not been significantly curtailed. The sheriff also interpreted the word "suspect" as discussed in Mclean v HM Advocate — i.e. that the Appellant was a suspect in the broad sense based on intelligence linking a social media account to him, but that the police did not have evidence to charge him prior to searching and attributing devices to him.

Specific factual findings that informed the legal conclusions included:

• The police arrived at the residence and were told the Appellant was at work; two officers then went to the workplace and asked the Appellant to accompany them to his residence, informing him there was an enquiry but not detailing its nature on the ground that doing so at the workplace might be inappropriate.
• The officers did not tell the Appellant he was under arrest; they did not handcuff him; the sheriff rejected the Appellant's account that he had been restrained or that the officers told him he had no choice.
• Although child locks were engaged in the police car, the sheriff regarded this as not amounting to significant restriction because the Appellant could have asked to be let out and would have been allowed to do so.
• On arrival at the residence, the Appellant was cautioned and the warrant was read; the search and recovery of the phone were conducted at the locus in accordance with the sheriff's view of proper procedure.

The Appeal Court agreed that the sheriff had properly applied the relevant legal tests, had considered the whole circumstances, and made findings that were open to him on the evidence. The court noted that identification of the Appellant as a suspect was somewhat further advanced than in Mclean but remained at the stage of acting on intelligence; there was no sufficient information to arrest the Appellant before the search. The court also endorsed the sheriff's acceptance that the officers acted in good faith.

Finally, the court considered the alternative submission that, even if there had been an irregularity, it would be excused under Lawrie v Muir for reasons including the seriousness of the offences, the officers' good faith, and the practical point that the police could have postponed the search until the Appellant returned on his own, in which event the phone would have been retrieved without controversy.

Holding and Implications

The appeal was refused.

Implications:

• Direct effect: The sheriff's decision to repel the preliminary plea and to admit the evidence recovered from the mobile phone was upheld; the evidence remains available to the prosecution for the indictment.
• No new precedent: The court treated the case as applying existing authorities (Ambrose, Mclean, Lawrie, Freeburn) and did not purport to create or depart from established legal principles. The decision affirms that where a sheriff's credibility findings and application of the Ambrose test are open on the evidence, an appellate court will not interfere.

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