Lord Justice Clerk

Lord Mackay of Drumadoon

Lord Philip

[2012] HCJAC 151

Appeal Nos: XJ855/12, XJ856/12,

XJ858/12 and XJ857/12


delivered by LORD CARLOWAY,











Appellants: (1) Mackintosh; John Pryde & Co SSC;

(2) I M Paterson, C Fyffe (solicitor advocates) ; Paterson Bell Ltd;

(3) D Taylor, Hughes (solicitor advocates); Hughes Walker;

(4) J Keenan, S Collins (solicitor advocates); George More & Co

Respondent: A Prentice, QC, AD; the Crown Agent

30 November 2012

[1] On 17 August 2012, at Edinburgh Sheriff Court, the appellants all appeared on a petition libelling, amongst other charges, concern in the supplying of a controlled drug, namely cannabis, on 15 August 2012, at addresses in Thirlestane Road, Maxwell Street and Slateford Road, Edinburgh, contrary to the Misuse of Drugs Act 1971, section 4(3)(b). They were all committed for further examination and appeared again, on petition, on 24 August 2012, when the procurator fiscal depute moved the sheriff to imprison the appellants until liberated in due course of law. This procedure is, of course, known as full committal.

[2] By this time, the appellants had all been given a written summary of the evidence against them; a document known as a custody statement. This narrated that, on 15 August 2012, police officers forced entry to the address in Thirlestane Road, in pursuance of a search warrant. They discovered a cultivation of some 350 cannabis plants. While the police were still at the address, two women, apparently of Chinese origin, namely Shan Shan Xu and Hui Lin Wong, approached the flat. On noticing the police, they began to act suspiciously and quickly walked away. The police detained them under section 23 of the Misuse of Drugs Act 1971 and they were searched with a negative result. Neither was able to confirm where they lived, but they offered to take the police to the address where they said they lived, namely that in Slateford Road. However, they required to collect the keys from a friend at the address in Maxwell Street.

[3] On arrival in Maxwell Street, the women pointed to three men, also apparently of Chinese origin, who were in a Chevrolet car, and seemed to be waiting for someone. These were the appellants Chen, Lu and He. A further person, namely the appellant Lin, was seen coming from the direction of the Maxwell Street flat and walking towards the Chevrolet. Xu told the police officers that the appellant Lin would have the keys to the Maxwell Street flat. This turned out to be correct, although he maintained that he had simply found the keys in the street.

[4] The police entered the flat with a view to retrieving the keys for the Slateford address. On entering, a large bag of cannabis was found. However, the keys to Slateford were not located. Xu told the officers that the appellant Chen would have them. By this time, the appellants were all acting suspiciously and were detained in terms of section 23 of the 1971 Act. A cricket bat and a cosh were found in the car. The appellant Lu had an i-phone in his possession and almost £650 in cash. The appellant He also had an i-phone and £1,500 in cash. The appellant Chen had two mobile telephones, a piece of paper with notations, £105 in cash and a Homebase receipt for what turned out to be equipment which could be used for cannabis cultivation. The appellant Lin also had an i-phone.

[5] The flat at Maxwell Street was formally searched and a variety of items were found. These included laptops and phones, papers with notations, £370 in cash, a further £4,000 in cash, bags of cannabis and a shopping bag containing propagators and a set of scales. There were various identity cards in sundry names.

[6] On being interviewed, Xu confirmed her residence at Slateford Road, which she said she shared with Wong. Chen was her ex-partner and he stayed at Maxwell Street in the room where a large bag of cannabis had been found, along with the majority of the cash. He, Chen and Lu were friends and all lived in Maxwell Street. The appellants were all illegal immigrants, with no apparent means of support, yet wearing expensive clothes.

[7] The cases called separately before the same sheriff. The appellant Lin, having given little prior intimation of his intention, took the unusual step of opposing the procurator fiscal depute's application for a warrant for imprisonment on the basis of insufficiency of evidence. The sheriff heard the depute, who assured him that the Crown was satisfied that a sufficiency did exist. The sheriff, in accordance with his understanding of the normal procedure, held that it was not part of a sheriff's function, at that stage of the process, to rule on questions of sufficiency. The Crown had confirmed, on its responsibility, that there was sufficient evidence and that was an end of the matter. The issue of bail was a different one. The sheriff proceeded to hear the appellant on whether he ought to be detained in custody or liberated.

[8] The appellant Lu also opposed committal to prison on the basis of a lack of sufficiency of evidence. This was presumably not a coincidence. The sheriff advised this appellant of his view that it was not part of the court's function to rule on sufficiency at this stage, but noted, again, that the depute had confirmed that such a sufficiency did exist. In these circumstances, the appellant did not take the matter any further and proceeded to move for bail. Identical opposition was offered by the appellant He, but the sheriff again advised this appellant of his view on competency and the matter was not taken further. He moved for bail once the warrant had been granted. Finally, opposition to the warrant was advanced by the appellant Chen, but he accepted that the sheriff had already expressed a view on the matter and it was not taken further. Bail was dealt with after the grant of the motion for a warrant. Each appellant was remanded in custody.

[9] Each appellant lodged a Bill of Suspension challenging the grant of the warrant for imprisonment until liberated in due course of law. The Bills are in slightly different terms. In the case of the appellant Lin, it is said that the warrant is "erroneous, unjust and contrary to law"; the basis for that being that the summary of evidence did not demonstrate the existence of a corroborated case. The statement of facts maintains that the appellant's "committal and continuing detention" is unlawful and in any event "oppressive". Oppression is not repeated, as a ground for suspension, in the pleas-in-law. It is also stated that the motion for committal was incompatible with the appellant's rights under Article 5(1) on the basis that the continuing detention lacks the relevant basis in domestic law and is, in any event, unnecessary. In the case of the appellant Lu, it is said that the sheriff had erred in law in holding that it was not competent to oppose the motion for a warrant on the basis that there was "not a prima facie sufficient case" against the appellant. The appellants He and Chen take the same line.

[10] The principal submission was presented by the appellant Lin. It was argued that the use of a Bill of Suspension was competent to challenge a warrant of committal. This had been done on previous occasions (Hynd v Ritchie 2002 SLT 984 and Mellors v Normand 1996 JC 148; see also, for a Crown challenge, Brown v Selfridge 2000 JC 9). Macdonald (The Criminal Law of Scotland (5th ed) (at pp 2003-5)) made it clear that the High Court was entitled to suspend a warrant and liberate an accused where there was a defect in that warrant. His thinking had been derived from Hume (Commentaries ii, 86), who described a situation in which a warrant could be reviewed if it failed to meet the requirements of the Act of 1701 (c. 6). The Act required a warrant: (1) to specify the name of the prisoner; (2) to state the particular charge on which he is to be committed; and (3) to proceed on a signed information (see now Criminal Procedure (Scotland) Act 1995, section 40(1); see also Alison: Practice, pp 151-160). The view of Moncrieff (Review in Criminal Cases (p 186)) that a warrant could not, in ordinary circumstances, be reviewed until final judgment, was in error. He had given no authority for this proposition and had given an example of review taking place (Bannantyne v M'Lulliuch and Fraser (1860) 3 Irv 605).

[11] The court had yet to provide a definitive view on what test should be applied when deciding that a suspect on petition could be committed until liberated in due course of law. However, in Hynd v Ritchie (supra) the advocate depute had conceded (para [3]) that the custody statement should show a "proper basis" for incarcerating a suspect, pending trial. This necessitated no more than an indication of sources of evidence, from which a sufficiency might, in the end, be obtained. The court had not needed to approve this concession but had been satisfied that, whatever the precise test was, it had been met. Macdonald (supra, p 204) stated that a warrant could be granted where there was a "prima facie" case. This was also the wording used in Lachlan v HM Advocate 2010 SCCR 347 (at para [23]), where Lord Carloway, delivering the Opinion of the Court, had stated that, whereas it was not a requirement, in order to place an accused person on petition, that there was a strict legal sufficiency of evidence in the form of two independent corroborated sources, a person should only be committed in custody if there were a prima facie case against him. A prima facie case was one which, at first sight, appeared compelling and called for an answer (see Glossary of Scottish and European Union Legal Terms (2003); R v Governor of Pentonville Prison ex parte Alves [1993] AC 284, citing R v Galbraith (1981) 1 WLR 1039).

[12] The approach adopted in Burn, Petitioner 2000 JC 403, when the court was considering the issue of the refusal of bail at the stage of committal for further examination, was of assistance. The Lord Justice General (Rodger) had said (p 406) that, in terms of the guarantee against arbitrary and unjustified deprivation of liberty contained in Article 5(3) of the European Convention, the court required to consider the merits of such detention (cf. Boyle v HM Advocate 1995 SLT 162, Lord McCluskey at 163). It was not appropriate for the sheriff simply to defer to the statement of the prosecutor that a prima facie case existed. Rather, the sheriff required to look at the information available to see if such a case did exist. The question of whether the warrant for imprisonment should be granted and whether bail should be allowed were separate. Sufficiency did not arise in respect of bail in terms of sections 23A-C of the 1995 Act. In all the circumstances here, the information available was not sufficient to justify the warrant (see also McDonagh v Pattison 2008 JC 125; Lees v HM Advocate [2012] HCJAC 57).

[13] The remaining appellants adopted the submissions made on behalf of the first appellant and, although certain further comments were made, the position of each appellant did not differ, to any material extent, from those advanced for the first appellant. Perhaps the exception to this was that, although the first appellant mentioned the issue of oppression, the appellant He stated that it was oppression that was the basis of his Bill.

[14] The Crown did not take issue with the contention that it was competent to review a warrant to commit a suspect to prison by way of Bill of Suspension. However, such a Bill was only competent to challenge a warrant which was not ex facie valid, or where there was some other clearly identifiable problem, such as oppression. The Crown's position remained as stated in Hynd v Ritchie (supra) at para 3. The Crown would not seek to commit fully, in the absence of a sufficiency of evidence. This was a stronger test than that required under Article 5 of the Convention.

[15] It was not disputed therefore that a suspect, appearing on petition, could oppose the Crown's application to commit to prison until liberated in due course of law. Since accused persons were provided with custody statements, they could, if they wished, disclose the material contained in the statement to the sheriff, even though, otherwise, sheriffs were not given these as a matter of routine. It was also open to suspects to seek bail and to maintain that there was insufficient evidence to justify continued detention. The issue of whether there was a prima facie case could be raised at either stage, although the two tended to be heard very close together in time. In the case of each of the appellants there was, however, a proper basis for committing them to prison and for the refusal of bail.

[16] It is not necessary, particularly in light of the Crown's concession, to indulge in an essay on the history and origins of commitment and bail. A suitable starting point is the Act of 1701 (c. 6), occasionally described as the Habeas Corpus Act of Scotland (see Alison: Practice, p 151), but more properly termed an "Act for preventing wrongous imprisonments and against undue delayes in tryals". At that time there had been justifiable concern about persons being imprisoned without warrant. The Act, which is the source of the modern law (Criminal Procedure (Scotland) Act 1995 section 40) essentially prohibited that mischief by stipulating that no one could be imprisoned, pending trial, without a written warrant. That warrant required to specify the crime of which the suspect was charged and it needed to proceed upon a subscribed "information". The Act therefore introduced three essential requirements before a person could be committed to prison pending trial. These were that the warrant: (1) was in writing and named the suspect; (2) specified the crime and; (3) proceeded on a signed information (Hume: Commentaries i, 85). The sheriff or magistrate signing the warrant would require to be satisfied that these requirements were met. If the three requisites were not all present in the warrant, it is clear that it was competent to challenge it by petition, and later suspension (see ibid i, 86, Alison: Practice p 159).

[17] The 1701 Act also provided that all crimes, other than those involving potential capital punishment, were bailable. It is important to note the context in which bail was, and is, granted. It is granted only after the commitment of the person to prison on the information or, as it later become known, the petition (Hume, i, 86). If there were no warrant for committal, there was no need to apply for bail since, in that event, there was no basis for holding the suspect in custody in the first place. It was only with the introduction of the Criminal Procedure Act 1887 (section 18) that bail could be applied for before full committal and it is the terms of that Act which continue in broadly the same form through to the present day (Criminal Procedure (Scotland) Act 1995, section 23). The refusal of bail can, of course, be subject to an appeal in the normal way (1995 Act s 32).

[18] At one time, at the stage of full committal, the sheriff or magistrate had the precognition, compiled by the procurator fiscal, before him. It is stated in Macdonald (5th ed, p 204) that the magistrate "may grant warrant for this commitment when he is satisfied, by the precognition before him, that there is a prima facie case against the accused". However, the author goes on to state that "In modern practice the magistrate grants the warrant on the motion of the Procurator Fiscal without himself examining the precognition".

[19] It is undoubtedly the position that this practice has continued. It is, to a degree, noted in Boyle v HM Advocate 1995 SLT 162, albeit in the context of a committal for further examination. Lord McCluskey considered (at 163) that the issue of whether suspects should be kept in custody pending enquiries was a matter for the procurator fiscal "as a minister of justice" and the sheriff, in considering an application for bail, should not go behind the assertion of the prosecutor that the suspects should remain in custody meantime. At that time, Renton & Brown: Criminal Procedure (5th ed release 12, January 1994), which was edited by the same sheriff as had decided the first instance proceedings in Boyle, recorded the procedure in a more expansive form than appears in the current edition (6th, para 12-37) as follows:

"The sheriff nowadays commits accused persons for trial on presentation of a petition containing a prima facie relevant charge signed by the procurator fiscal... The practice of showing the sheriff the precognition when moving for full committal has long since been departed from, but the sheriff does retain a residual right to refuse to commit [cf Herron v A,B,C and D 1977 SLT (Sh Ct) 24] which he may exercise if the Crown behave oppressively [Normand v McQuillan 1987 SCCR 440 (Sh Ct), HM Advocate v Drummond 1990 SLT (Sh Ct) 6] or if the proceedings are time-barred [Friel v Mailley 1993 SCCR 928 (Sh Ct)]. This will not effect the Crown's right to indict... but it will lead to the accused's release".

[20] Burn, Petitioner 2000 JC 404 overruled Boyle in relation to the duties of the sheriff at the stage of committal for further enquiry. Lord Rodger, delivering the Opinion of the Court and following the European Court in Aquilina v Malta (1999) III ECHR 225 (at para 4), stated that the sheriff did have a duty to go behind any statements by the crown in relation to the need for further enquiries, at least if invited to do so. However, in relation to full committal, the sheriff could always enquire into the content of, and no doubt background to, the petition in determining whether to grant the warrant even if, in the vast majority of cases, this may not have been a productive use of court time, especially if bail was to be granted in any event. In Herron (supra), after an exhaustive analysis of the history, Sheriff Macphail determined not to commit suspects for trial who had been oppressively held on a warrant for further examination for more than eight days. Apparently, at that time, there was no need for the accused or his agent to appear at the stage of full committal! In Normand v McQuillan (supra) a petition for a warrant was dismissed, in the face of an objection to its competency, again on the grounds of oppression. The sheriff (Boyle) made the telling point (at 441) that, if the procurator fiscal were entitled to move for a particular order, an accused, who was the subject of that order, ought to be able to oppose it.

[21] It is accepted that it is competent to oppose the grant of a committal warrant. The more important issue is to identify the grounds on which it can be opposed. The Crown concede, in terms of Hynd v Ritchie 2002 SLT 984 (para [3]) that the procurator fiscal should not move for such a warrant unless there is disclosed in the custody statement:

"a 'proper basis' for incarcerating the accused pending his trial but that that involved no more than an indication of sources of evidence from which a sufficiency of evidence might in the end be obtained".

The record of the Crown's statement of policy there relates to the duty on the procurator fiscal as the public prosecutor. This is also the context of the remarks made by Lord Carloway, delivering the Opinion of the Court, in Lauchlan v HM Advocate 2010 SCCR 347, where it was said (at para [23] but [24] in the original text) that:

"It is not a requirement that, in order to place an accused person on petition, there is a strict legal sufficiency of evidence (i.e. two independent corroborated sources) against him. The evidence and its sufficiency will seldom have been considered in any detail at that point. It is from then that time begins to run and not the date of full committal, when, at least if the person is to be remanded in custody, there ought to be a prima facie case against him".

The court is talking about the duty of the Crown not to ask for full committal without there being a prima facie case in existence. This is not materially different from the Crown's concession in Hynd v Ritchie (supra). Certainly, the test is a more onerous one than the need for "reasonable suspicion" contained in Article 5 of the European Convention. The latter entails merely the existence of information which would satisfy the informed objective observer that the person concerned may have committed the offence (see Fox v United Kingdom (1990) 13 EHRR 157, para 32).

[22] It is important to recognise, however, that it is not the proper function of the court to conduct an in-depth analysis of the sufficiency of the evidence at full committal. The court cannot begin to consider the veracity of statements at such an early stage. It will be enough if the custody statement does contain material which provides a "proper basis" for incarceration or, put another way, a prima facie case. If it is manifest that there is no such case, or that the statement does not contain grounds for reasonable suspicion under Article 5, then the suspect will be entitled to plead oppression on the part of the Crown and to seek dismissal of the petition. On the other hand, if the suspect is merely claiming that the Crown case is an apparently weak one, this will not provide a good ground for opposing the committal. The proper time for raising that matter will be in the course of the application for bail, when it can form one of the many factors which the court can take into account in determining whether it is necessary and proportionate to deprive the suspect of his liberty pending trial.

[23] Even if the sheriff had the power to refuse to grant a committal warrant on the basis of a perceived deficiency in the quality or quantity of the evidence short of oppression, it does not follow that there is an appeal against the merits of the sheriff's decision by a Bill of Suspension. The Crown conceded the competency of a Bill in Mellors v Normand 1996 SLT 704, where the challenge was whether the charge on the petition was relevant (ie a defect on the face of the warrant). The court entertained the question, even although it is clear that it had doubts, especially under reference to Moncrieff: Review in Criminal Cases at 186), as to the competency of the procedure. Such doubts are of considerable substance (see the detailed analysis in Ferguson: Suspension of Committal Warrants 1996 SLT (news) 185, citing Trotter: Summary Criminal Jurisdiction p 58). However, they were not pursued in Hynd v Ritchie 2002 SLT 985.

[24] What is clear is that there is no authority for the proposition that a Bill of Suspension (or other process) can competently be used to challenge the grant of a committal warrant in circumstances other than where it is contended that the warrant is fundamentally defective or its presentation by the procurator fiscal amounts to oppression in the sense outlined above. The court is accordingly of the view that the Bills in the current cases are incompetent. There is no defect on the face of the petition and relative warrants. Although at times, in both the petitions and the submissions, there was passing reference to "oppression", there is no material in the petition, when read with the custody statement, which could amount to oppressive conduct on the part of the Crown. In this regard, it is noticeable that the pleas-in-law in the Bills make no mention of oppression. Although there was also a reference by one appellant of his rights under Article 5, the court did not understand this matter to be pursued. That is not surprising, given the greater protections offered under domestic law.

[25] There is, of course, substance in the contention that a sheriff would be in error if he had failed to listen to submissions concerning the committal warrant, in so far as these submissions were contending that the procurator fiscal was acting oppressively in seeking committal. These would include, as outlined above, where there was no proper basis for seeking committal or where the requirement of "reasonable suspicion" under Article 5 was not met. The sheriff is obliged to listen to, and if appropriate to sustain, arguments concerning the absence (as distinct from sufficiency) of evidence at the point of committal, if these are advanced (Hynd v Ritchie (supra)). It is clear, however, that the arguments presented (or which would have been presented had the sheriff not intervened) were not based upon oppression but upon an alleged lack of sufficiency in the evidence in the domestic sense.

[26] Even were the court to have been of the view that the Bills were competent, it would have had no hesitation in refusing to pass the Bills on their merits. The custody statement sets out a "proper basis", for the content of the petition and the application for committal, in the form of a prima facie case against each appellant. Each was, on one view of the evidence, linked with the others and to the Maxwell Street flat, and hence, through the actions of the women, to the Thirlestane Road premises. In each property, substantial quantities of cannabis and other drugs paraphernalia were found. Both in Maxwell Street and on at least two of the appellants there were significant quantities of cash, notwithstanding that the appellants had no obvious source of legitimate income. All of this was more than sufficient to entitle the procurator fiscal to proceed to move the sheriff for committal to prison. Thereafter, each appellant was entitled to, and did, move for bail. At that stage, and on appeal, the appellants would be entitled to raise again any issue relative to the weakness of the evidence, which the sheriff, or judge on appeal, could take into account in determining whether it was necessary and proportionate to remand the appellants in custody pending trial. In each case, bail was refused. This cannot be regarded as surprising, given the obvious risk that the appellants may abscond.

[27] The court will refuse to pass the Bills.