Aliah Ashraf+mohammed Ashif V. Procurator Fiscal, Glasgow
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lord Bonomy,Sheriff Principal Brian A Lockhart |
| Neutral Citation | [2011] HCJAC 106 |
| Docket Number | XJ574/11and |
| Published date | 27 October 2011 |
| Court | High Court of Justiciary |
| Year | 2011 |
| Date | 27 October 2011 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Bonomy Lord Brodie Sheriff Principal Lockhart | [2011] HCJAC 106 Appeal No: XJ574/11and XJ503/11 OPINION OF THE COURT delivered by LORD BONOMY in BILLS OF SUSPENSION by (FIRST) MOHAMMED ASHIF and (SECOND) ALIAH ASHRAF Complainers; against PROCURATOR FISCAL, GLASGOW Respondent: _______ |
First Complainer: Richardson; John Pryde & Co, Edinburgh
Second Complainer: Richardson; Capital Defence, Edinburgh
Respondent: MacSporran AD; Crown Agent
27 October 2011
[1] The complainers are indicted in the Sheriff Court in Glasgow on a long and detailed charge of fraud. At the first diet on 10 May 2011 the indictment was deserted pro loco et tempore and the 12 month time bar was extended to midnight on 31 December 2011.
[2] The evidence which the Procurator Fiscal intends to present includes material recovered in a search of a house at 70 Thrashbush Road, Wishaw occupied by the first complainer. The search was carried out in terms of a warrant granted by the Sheriff at Glasgow on 4 August 2008. The petition of the Procurator Fiscal craving the warrant proceeded on the basis that the first complainer, whilst acting with others, had carried on a fraudulent scheme to obtain funds held by the sheriff clerk at Glasgow in relation to estates of the late Joni McPherson-Smith and Bessie Laver Robertson. Having heard from an officer of Strathclyde Police and being satisfied that there were reasonable grounds for believing that material of relevance to the respondent's investigation could be found within the premises occupied by the first complainer at Wishaw, the Sheriff granted the warrant. On 9 May 2011 in the case of the second complainer, and on 13 June 2011 in the case of the first complainer, Bills were presented to this Court seeking suspension simpliciter of the warrant on the ground that the Sheriff lacked jurisdiction to grant it because the premises in question lay outwith his sheriffdom and that the authority to search granted to "Detective Constable Ian Blair of Strathclyde Police or other officers of law" to carry out the search did not restrict the authority to officers falling under the jurisdiction of the sheriff.
[3] In Answers lodged on behalf of the respondent it was explained that the fraudulent scheme alleged against the complainers involved conduct within the Sheriffdom of Glasgow and Strathkelvin and that the Sheriff thus had jurisdiction to grant the warrant. The Answers further explained that the warrant was executed by five officers of Strathclyde Police, all then based at the Economic Crime Unit in Glasgow, over all of whom the sheriff had jurisdiction. Before us the argument was confined to the first point, whether the Sheriff had jurisdiction at all to grant the warrant.
[4] Counsel for both complainers, Mr Richardson, advanced three broad propositions in support of the submission that the Sheriff had no jurisdiction to grant the warrant on 4 August: firstly, in order for the warrant to be valid the sheriff granting it must have jurisdiction to do so; secondly, at common law a sheriff's jurisdiction was delimited by the territorial boundaries of the sheriffdom; and thirdly, because of its wording and its legislative antecedents, s. 297(1) of the Criminal Procedure (Scotland) Act 1995 ("1995 Act"), properly construed, does not innovate upon the common law in respect of a sheriff's jurisdiction.
[5] S.297(1) of the 1995 Act provides:
"Any warrant granted by a justice may, without being backed or endorsed by any other justice, be executed throughout Scotland in the same way as it may be executed within the jurisdiction of the justice who granted it."
The term "justice" is defined in s 307(1) of the 1995 Act and includes "sheriff and any stipendiary magistrate or justice of the peace". It was the submission of Mr Richardson that the sheriff had never had jurisdiction to grant a search warrant which would be given effect beyond the territory of his sheriffdom, and that for a valid search to be effected at an address in Wishaw it was necessary for a warrant to be granted by a sheriff at Hamilton. He contended that the effect of s.297(1), authorising execution of warrants outwith the sheriffdom where granted, without backing or endorsement of a sheriff of the sheriffdom where execution was to be affected, was limited to specific circumstances and had no application in general. It applied to a warrant to arrest a person accused of a crime committed in one sheriffdom who had moved to another, but not to a search warrant. The Advocate depute maintained that the sheriff had always had power to grant a warrant for a search to be executed in another sheriffdom in relation to an alleged offence in respect of which he had jurisdiction. Previously the warrant had to be backed or endorsed before it could be validly enforced. The effect of s.297(1) was to remove the need for that additional administrative process.
[6] Mr Richardson mustered various authorities to support his submissions. A number of them related to his first and second propositions. He pointed first of all to Renton and Brown, Criminal Procedure According to the Law of Scotland, 6th edition, at 5-02 where it is said:
"Any justice may grant warrant to arrest a person charged with a crime committed within his jurisdiction, although the charge is too serious for him to try. Any justice may grant warrant to search premises within his jurisdiction, unless the warrant is sought under a statute which places limits on the person entitled to grant it."
That was supported by Alison, Vol II, Practice of the Criminal Law of Scotland (1883), at page 123 to 124, in remarks which, so far as backing was concerned, applied only to arrest warrants. There he said:
"7. In the execution of his warrant, the officer must not go beyond the bounds where his commission extends; he must acquaint the party with the substance of the warrant, and he must not break open doors until he has notified the errand to those within, and been refused admittance.
The warrant of a judge, of course, is of no legal effect beyond his jurisdiction; and, therefore, unless indorsed or supported by the authority of some judge in the territory into which the criminal has withdrawn, it cannot legally be executed there. If, therefore, he has escaped out of the jurisdiction within which the warrant runs, it must be indorsed by a magistrate within the new jurisdiction, before it can be legally put in force there."
Thus, in Mr Richardson's submission, the process of endorsation and extra-territorial enforcement was confined to arrest warrants relating to fugitives. He had been unable to find any authority to the effect that at common law a search warrant might be endorsed and enforced extra-territorially.
[7] Mr Richardson claimed further support from Shields v Donnelly 2000 JC 46. The issue in that case was whether a justice had jurisdiction to conduct a case relating to offences allegedly committed within the jurisdiction of his court in a courtroom of an adjacent and separate jurisdiction where the complaint had been raised. The Court in its Opinion, delivered by the Lord Justice General (Rodger), considered that, in the absence of direct authority on the point, it was appropriate to look for guidance in comparable areas of law and resorted to Erskine, Institute, I. ii. iii and the proposition there that the whole powers of a judge were...
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