Continued Appeal Under Section 74 By As Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lord Bracadale,Lord Turnbull,Lord Justice Clerk,Lord Justice General |
| Judgment Date | 23 December 2016 |
| Neutral Citation | [2016] HCJAC 126 |
| Court | High Court of Justiciary |
| Date | 23 December 2016 |
| Published date | 23 December 2016 |
| Docket Number | HCA/2016 |
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...
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