Samuel Freeburn v. Her Majesty's Advocate [2012] HCJAC 135

Appeal under section 74(1) of the Criminal Procedure (Scotland) Act 1995:- The appellant has been indicted to the High Court in relation to various drugs and firearms offences, following the search of his house at 114 Oronsay Avenue, Port Glasgow on 9 and 10 May 2011. Objection was taken to the legality of the search and to the admissibility of the various incriminating items recovered. Evidence was heard at a preliminary hearing on 2 and 3 July 2012, after which the judge at first instance repelled the objection. The appellant appealed against that decision. It was submitted that the judge had erred in his assessment of the credibility and reliability of the police, as against the version spoken to by the appellant and his partner, in particular, in relation to the question of whether the appellant had consented to the entry of the police into the house. The court here considered that the assessment of the credibility and reliability of the officers and the appellant and his partner was primarily for the judge at first instance, who had the advantage of hearing and seeing the witnesses and assessing all the evidence in the case and the judge gave adequate reasons for his conclusion in relation to the question of consent. It was further submitted that that it was not enough that the appellant had consented to the officers entering his house. The police normally required a warrant to enter private property without consent and that any consent had to be "informed". On behalf of the Crown it was noted that the duty upon the police to protect life was contained in section 17 of the Police (Scotland) Act 1967 and the judge had held that the police's primary concern had been the protection of the person said to have been detained and their actions in looking around the house were consistent with that position and there was urgency, given the information that the police had received. Here the court considered that the police were entitled to take urgent action to prevent harm coming to the person who the police understood had been detained. In addition, the court noted that the judge at first instance found that the appellant had consented and, as such, there was no illegality or irregularity in the police action, and therefore no question that the evidence subsequently obtained should be rendered inadmissible. It was observed by the court that even if there had been a degree of irregularity the principles outlined in Lawrie v Muir 1950 JC 19 would have applied and in due to the need to protect life and the urgency of the situation, any such irregularity would be excused.