Her Majesty's Advocate V. Dean Foulis And Grant Young
| Jurisdiction | Scotland |
| Judge | Lord Cameron of Lochbroom,Lord Kingarth,Lord Carloway |
| Court | High Court of Justiciary |
| Date | 13 March 2002 |
| Docket Number | 90/02 |
| Published date | 13 March 2002 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Cameron of Lochbroom Lord Kingarth Lord Carloway
| Appeal No: 90/02 OPINION OF THE COURT delivered by LORD CAMERON OF LOCHBROOM in CROWN NOTE OF APPEAL in terms of section 74 of the Criminal Procedure (Scotland) Act 1995 by HER MAJESTY'S ADVOCATE Appellant; against DEAN ROBERT FOULIS and GRANT YOUNG Respondents: _______ |
Appellant: Armstrong, Q.C., A.D.; Crown Agent
Respondents: M.E. Scott; Muir Myles Laverty, Dundee: Sadler; Bruce & Co., Dundee
13 March 2002
[1]This note of appeal for the Crown concerns a decision of the sheriff after a debate before him consequent upon the lodging of a minute of notice in terms of section 72(1) of the Criminal Procedure (Scotland) Act 1995. Dean Robert Foulis and Grant Young had been indicted for trial on a charge that they had between 21 October 1998 and 2 November 2000 formed a fraudulent scheme to steal and reset motor vehicles, remove identifying features and replace them with false ones. The minute of notice proceeded on the ground that police officers had illegally searched certain farm premises near Dundee on 2 November 2000 and that the officers did not seek the authority of the court by way of a search warrant to search the premises. It is enough to say that after sundry procedure the sheriff, at a preliminary diet held on 4 January 2002, heard parties of consent on a further matter. This concerned the validity of the search warrant, Crown production number 1, on the ground that it was not dated. The sheriff sustained the objection stated to the validity of the search warrant and held that it was not a valid warrant and therefore that the evidence of the search and pertaining to anything recovered in the course of the search would be inadmissible.
[2]Crown production number 1 is the manuscript petition of the procurator fiscal, Dundee, dated 2 November 2001 presented to the sheriff under the Criminal Procedure (Scotland) Act 1995. For present purposes it is unnecessary to set out the detail in the petition which gave rise to the application other than to record that the prayer of the petition craved the court to grant warrant to a named police constable to search certain premises including the foregoing farm premises. At the end of the petition and after the signature of the principal procurator fiscal depute appeared the following:
"Dundee November 2000
The sheriff having considered the foregoing petition grants warrant as craved"
This bore to be signed by Sheriff Scott and appended to his signature is the designation "Sheriff of Tayside, Central & Fife at Dundee" also in his manuscript.
[3]In determining that the warrant must be regarded as invalid and that therefore any evidence obtained in the course of its execution would be inadmissible, the sheriff in his Note sets out that in the absence of any clear, direct, modern authority on the topic, he had regard to certain considerations which he detailed as follows:
- That such authority as bore upon the present circumstances, i.e. the reference to Alison's proposition in Sheriff Stoddart's text, and the judgments in Bulloch and Welsh, favoured the proposition advanced by Mr. Lavery that there were certain basic formalities essential to the validity of all warrants, one of which must be the precise date of subscription. There was no authority cited to me which bore to be to the opposite effect.
- That the alternative conclusion was that the failure to insert the date could potentially be an excusable error. That did not strike me as being a happy state for the law to find itself in as it would introduce an element of uncertainty should a similar failure occur in the future into a situation where certainty would be preferable and expedient where the formality to be observed was not one the observance of which would be surrounded with any difficulty.
- That it was an unattractive proposition that a court would have to engage in an exercise of discretion to decide whether another judge or sheriff had made an error and, if so, whether that error was or was not excusable in the circumstances; that did not in my opinion consist with the requirement for justice to be seen to be done. In any event, the Opinions of the Court in both Bulloch and Welsh, the two eminent judges presiding had both expressed the opinion that it would be incompetent to admit parole evidence as to the date on which the warrant had been signed and so the defect could not be cured by the leading of evidence: and
- That it would be obvious to a layman looking at the warrant that there had been an omission to insert the precise date into a formal legal document where it was apparent that the draftsman of the document expected the date to be inserted and there was therefore a risk that such a layman on the receiving end of such a warrant might have a genuine difficulty, even with the benefit of legal advice, in knowing whether he should or should not co-operate with any attempt to enforce the warrant."
[4]The question which the sheriff poses in his Note is whether he was correct to sustain the minute for the first pannel, Dean Robert Foulis, and determine that the failure to insert the precise date in the warrant rendered the warrant invalid.
[5]In presenting his submissions the advocate depute began by pointing out that the warrant sought was a common law warrant. Unlike warrants granted under statutory authority, the authority given by the grant of the warrant was not limited by a specific time limit for its execution....
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