Hm Advocate v Foulis and Young
| Jurisdiction | Scotland |
| Judgment Date | 13 March 2002 |
| Date | 13 March 2002 |
| Docket Number | No 17 |
| Court | High Court of Justiciary |
Lord Cameron of Lochbroom, Lord Kingarth and Lord Carloway
Justiciary—Search warrant—Search warrant at common law—Undated warrant—Validity
The pannels were indicted on a charge of forming and executing a fraudulent scheme to steal and reset motor vehicles. At first diet the first respondent challenged the validity of a purported search warrant produced by the Crown, on the grounds that it was not dated, and consequently that evidence of a search held pursuant to its terms and pertaining to anything recovered in the course of the search was inadmissible. The petition for the warrant was dated 2 November 2001, and at the end the words “Dundee, November 2001” above a docquet containing the signature of the sheriff. The objection was sustained by the sheriff, who gave the Crown leave to appeal in terms of sec 74(1)(b) of the Criminal procedure (Scotland) Act 1995. The Crown appealed. The sheriff provided a note to the Court of Appeal, in which he asked whether he was correct to determine that failure to insert the precise date in the warrant rendered the warrant invalid and any evidence recovered in the course of its execution inadmissible.
The Crown argued that the warrant being at common law and not under statute, was not limited by a specific time for execution, and the cases relating to statutory warrants could therefore be distinguished; the warrant did bear a date, namely “November 2000” and the question was whether it had to be any more precise; the warrant was not undated, due to the presence of the words referred to, and so was notex facie invalid, and accordingly the sheriff had no power to review its grant.
The respondents argued that a full and precise date is an essential requirement of a warrant granted at common law and the court should be slow to excuse any irregularity; and in any event, esto the lack of such a date was an excusable irregularity, it was for the Crown to offer an explanation, which it had failed to do.
Held that as the warranty was granted at common law, there was no prescribed time limit for its execution; and in this respect the cases relating to statutory warrants could be distinguished; consequently there was no such prescription or restriction on the right of the prosecutor to seek the warrant or the sheriff of grant it; and accordingly in the grant of a common law warrant, the precision of the date as including day as well as month and year was not necessary; and the...
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