CONTINUED APPEAL UNDER SECTION 74 BY AS AGAINST HER MAJESTY'S ADVOCATE
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 126
HCA/2016/000393/XC
Lord Justice General
Lord Justice Clerk
Lord Brodie
Lord Bracadale
Lord Turnbull
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
CONTINUED APPEAL UNDER SECTION 74
by
AS
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: S McCall, QC; C Findlater; Muir Myles Laverty, Dundee
Respondent: Niven Smith AD; Crown Agent
23 December 2016
[1] The question arising in this case relates to whether the admissibility of evidence seized under a valid search warrant may nevertheless competently be challenged by preliminary issue minute under section 71 of the Criminal Procedure (Scotland) Act 1995. It is clear (see opinion in this case [2016] HCJAC 97) that the issue is a cause of uncertainty amongst the legal profession, and, on occasion, judges. In some cases the matter has been dealt with by way of a bill of suspension; in others the matter has been dealt with as an objection at trial. A Bill of Suspension is clearly not a suitable means of proceeding where there is a dispute of fact to be resolved. It is a remedy primarily designed to review errors of law, being “truly appropriate ….where the circumstances are instantly or almost instantly, verifiable” – Fairley v Muir 1951 JC 56 at p 60. The unsuitability of the process to address questions of fact has led to the adoption of some rather cumbersome procedures – see for example the procedure adopted in O’Neill v Harvie 2015 SLT 55 where the sheriff adjourned a hearing on a section 71 minute objecting to the admissibility of evidence, so that a Bill of Suspension could be presented; whereas in the Bill of Suspension the court adjourned the case in order that the sheriff could determine the factual dispute underlying the section 71 minute. In the case of Evans & Kerr v P F Glasgow, unreported, 8 February 2013, the court had, in the first instance at least, remitted the case to the sheriff to hold an evidential inquiry and report his findings, doing so erroneously on the basis of sections 182(5)(e) and 190 of the 1995 Act, which had no application.
[2] The uncertainty appears to stem from a belief that to challenge the admissibility of the evidence requires a challenge to the validity of the warrant, which can only be done by means of a Bill of Suspension (Allan v Tant 1986 JC 62).
[3] The background circumstances of the present case are set out in the opinion of the court referred to above, and need not be repeated. The preliminary issue minute did not attack the validity of the search warrant, rather it focussed on the initial police search and contended that the evidence so obtained was inadmissible on the basis of actings by the police before they had sought the warrant.
[4] We are grateful to parties for their detailed and helpful submissions, which were largely in agreement. The essence of these was that (i) Allan v Tant was correctly decided, and (ii) when that case was properly understood the issue of validity of a search warrant could be separated from the question of admissibility of evidence obtained thereunder. We are satisfied that these arguments are well-founded and that a distinction falls to be drawn between cases in which the challenge is based upon an error of law in the granting of the warrant (described by senior counsel for the appellant as a challenge intrinsic to the warrant procedure), and those in which the challenge relates to something distinct from that procedure (described as something extrinsic to the warrant procedure). In the former (intrinsic) category, the court is asked to review the decision to grant the warrant on error of law grounds, which would be a matter properly falling within Bill of Suspension procedure. In the latter category, the grant of the warrant is not said to have been made upon an error of law, but it is maintained that the procedure is tainted by some prior illegality. Such a course is consistent with Allan v Tant and other authorities.
[5] In Allan v Tant a sheriff at trial concluded that the police officer who had applied for and to whom a warrant had been granted by a justice of the peace had not had the requisite reasonable grounds for suspecting that controlled drugs were in the possession of a person on the relevant premises. He thus decided that (a) the warrant should not have been applied for or granted; and (b) evidence of what was recovered was inadmissible. On appeal the court held that the sheriff was not entitled to “go behind the warrant” and that his decision could not stand. He was not entitled to hold either that the warrant should not have been granted, or that the evidence was inadmissible. In that case, however, the evidence upon which the officer satisfied the justice of reasonable grounds, thus obtaining the warrant, was exactly the same evidence upon which the trial sheriff reached a different view as to whether the officer had reasonable grounds. The sheriff at trial was thus holding that the granter of the warrant had erred in doing so, and was in effect purporting to review that original decision. It is quite clear that such a course was not open to him; and, since that was the only basis upon which he held the evidence to be inadmissible, it naturally followed that his decision on admissibility could not stand. The observation in Allan v Tant that the sheriff could not hold the evidence to be inadmissible must be understood in that context.
[6] In Hay v HMA 1968 JC 40 the objection to the evidence was on the basis that the warrant had been incompetently granted, an argument which the court was unable to accept. Since that was the only basis for objecting to the admissibility of the evidence no such objection could be sustained. The court had dealt with the matter at trial, without requiring a Bill of Suspension to be lodged, even though the issue was one which was more suited for suspension. The type of warrant with which the court was concerned was considered to be one of novelty, which may explain why the issue of a Bill of Suspension was not raised. However, the important point is that it was a case in which the validity of the warrant and the admissibility of the evidence were inextricably linked.
[7] That part of Allan v Tant which is to the effect that until a warrant is suspended a sheriff is not entitled to hold that the evidence recovered under the warrant is inadmissible, should be understood as only having application to cases in which the challenge is to the granting of the warrant on error of law grounds. Neither Allan v Tant nor Hay is authority for the proposition that the question of validity of the warrant determines the admissibility of any evidence seized under it in circumstances where the objection to admissibility is based on factors other than a challenge to the validity of the warrant. The question of the admissibility of evidence found after search depends upon the whole circumstances, important among which is whether or not the search was carried out under a valid warrant.
[8] Where the challenge to the warrant is one which directly relates to the actings of the judicial office holder in granting it – for example that it was incompetent to grant such a warrant, or that the information upon which it is agreed he proceeded could not suffice to meet the test for granting the relevant warrant, the appropriate course to adopt is a Bill of Suspension. However, where it is accepted that the judicial office holder was entitled to grant the warrant on the basis of the information placed before him, but it is argued that actings of the police or the Crown before, or even after, the granting of the warrant mean that it would be unfair to admit the evidence that is a challenge which may be made and resolved by section 71 procedure. There is a clear legislative intention behind section 79 and associated sections of the 1995 Act that as far as possible, issues of admissibility should be determined in advance of trial. The court in which the trial is to be held, and which will be case managing the matter in preparation for trial, is the one best placed to determine the issue of admissibility of the evidence.
[9] Turning to the merits of this case, the Crown’s initial position was that there had been no irregularity since the actions of the police were based on urgency and objectively justified on the authority of McGuigan v HMA 1936 JC 16. In the course of argument, the primary submission came to be that there might be an irregularity which was excusable under the principles of Lawrie v Muir 1950 JC 19. In submissions before the Full Bench, it was ultimately made clear that the Crown maintained its original position.
[10] Whatever criticisms may be made of the inspector in charge, the sheriff made certain critical findings in relation to his evidence. These were that (a) the inspector considered the situation to require urgent attention; (b) that his suspicion that he needed to act to prevent any drugs being redistributed was reasonable; (c) that any occupant of the flat might have “picked up on” any surveillance which had been attempted; and (d) his estimate that it would take several hours to obtain a warrant was correct. The sheriff also accepted that the inspector was acting in good faith and that his perceptions as to police resources available on a Sunday afternoon were genuinely held. It is therefore irrelevant whether other options might have been available to the inspector. The sheriff’s overall conclusion, based on these factors, was that the actions of the police were urgent in nature and, viewed objectively, justified. We are unable to reach a different conclusion. The question of excusal of an irregularity does not arise. The appeal will therefore be refused.