Icl Plastics Limited And Others For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord McEwan |
| Neutral Citation | [2005] CSOH 35 |
| Date | 11 March 2005 |
| Docket Number | P918/04 |
| Court | Court of Session |
| Published date | 11 March 2005 |
| OUTER HOUSE, COURT OF SESSION [2005] CSOH 35 | |
| P918/04 | OPINION OF LORD McEWAN in the petition of ICL PLASTICS LIMITED and OTHERS Petitioners: for JUDICIAL REVIEW ________________ |
Petitioner: M Jones, Q.C., Springham; HBM Sayers
Respondent: P Cullen, Q.C., Ms Crawford; Lindsey Nicoll, Solicitor for Scottish Executive
(for first and second respondents)
11 March 2005
Introduction
[1]In May 2004 in Maryhill, Glasgow a factory collapsed. The cause is as yet unknown but a number of persons were killed and many injured. The place was sealed off and the appropriate authorities began to investigate. Out of this unmitigated tragedy the action before me has arisen. I heard the case first in July and thereafter on two days in October and again in November. By then the pleadings of the parties had undergone amendment and a Record was made available at my request. Finally the case was concluded in December.
[2]The Petition and Answers now on Record can be summarised thus. The narration of fact sets out the explosion, the consequences and the claims made and how property was then removed by the Respondents for examination. The replies for the Respondents set out in some detail the extent of the damage and what access the Petitioners have already had (Answers 3 and 4). In Statement 4 the Petitioners made it clear that the reason they want access to their property is to ascertain the cause of the explosion, with a view to settling the claims. The Respondents aver that the Petitioners consented to what the investigation team were doing (9 B/C) and they go on in Answer 4 to make the point that there may be criminal offences arising. The remaining factual averments deal largely with the evidential productions and I will deal later with these in detail. Statement 15 contends, as is admitted, that there was no search warrant asked for.
[3]In Statement 17 the Petitioners set out seven reasons when they challenge the Crown actings. The first four of these relate to common law powers and (by implication) the lack of a warrant. Two further are Convention reasons and the last is suggestion of a Wednesbury reason. Statement 18 seeks certain declaratory orders and the pleas-in-law seek reduction and declarator. (In the original Petition para 14 and pleas-in-law interdict was sought. That is no longer an issue.)
[4]I was referred to a number of cases which I now list, viz:
Scottish Authorities
Anderson v Laverock 1976 J.C.9
Bell v Black and Morrison (1865) 3 M 1026
Bruce v Linton (1860) 23D, 85
Cordiner Petr. 1973 J.C.16
HMA v Turnbull 1951 J.C. 96
Houston v HMA 1990 S.C.C.R.4
Leckie v Miln 1981 S.C.C.R. 261
Law Hospital N.H.S. Trust v Lord Advocate 1996 S.C. 301
Milnv Maher 1979 J.C.58
HMA v McGuigan 1936 J.C.16
Montgomery v HMA 2001 S.C. (P.C.) 1
Phillips v Steele (1847) 9D.318
R v HMA 2003 S.C.(P.C.) 21
Reynolds v Christie 1998 S.L.T.68
Southern Bowling Club Ltd. v Ross (1902) 4F 405
Shepherd v Menzies (1900) 2F 443
Stewart v Roach 1951 J.C. 96
Wan Ping Nam v Minister of Justice of German Federal Republic 1972 J.C.43
Watson v Muir 1938 J.C. 181
English Authorities
Arias v Commissioner for the Metropolitan Police 1984, Law Society Gazette 2694; The Times, 1 August 1984
Inland Revenue Commissioners v Rossminster Ltd [1980] A.C. 952
Morris v Beardmore [1981] A.C. 446
R (Reprotech Ltd) v East SussexC.C. [2003] 1 W.L.R.348
R (Rottman) v Commissioner of Police of the Metropolis [2002] 2 A.C. 692
Regina v Shayler [2003] 1 A.C. 247
R v Secretary of State for the Home Department (ex parte Daly) [2001] 2 A.C. 532
R v Director of Public Prosecutions (ex parte Kebilene) [2000] A.C. 326
European Authorities
Allegemeine Gold etc v UK (1986) 9 E.H.R.R. 1
G, S and M v Austria No 9614/81
Jokela v Finland (2003) 37 E.H.R.R. 26
Sporrong and Lonnroth v Sweden (1982) 5 E.H.R.R. 35
Vendittelli v Italy (1994) 19 E.H.R.R. 464
X v Netherlands No 7721/76
Text Books
Hume's Commentaries on Crimes
Alison Practice of the Criminal Law of Scotland (1832)
Stair Society Encyclopaedia, Volume 6; and Reissue 4 on Criminal Procedure
Moncrieff The Law of Review in Criminal Cases (1877)
Clyde and Edwards: Judicial Review
Clayton and Tomlinson: The Law of Human Rights
Lester and Pannick: Human Rights Law and Practice
The Submissions
[5]The initial argument for the petitioners presented in July asked me two questions. The first was whether the Court of Session had jurisdiction to review the decisions of the Procurator fiscal, acting for the Lord Advocate, taken in the context of investigation of a death. Secondly, if there was jurisdiction, did the fiscal have power at common law to exclude the petitioners' representative from the site and to deny access by that representative to the petitioners' property which had been removed from the site. The development of that argument led to the following detailed submissions.
[6]While the High Court of Justiciary had supervisory jurisdictions to review criminal matters in Scottish Courts whether by the Courts or the parties the Court of Session had no concurrent jurisdiction on this. In the present case, no crime had been reported, none apparently committed and no proceedings instituted. The dispute was about the fiscal's interference with the petitioners' property rights. That was a delict, could give rise to damages and was not a matter for the High Court. Accordingly, judicial review was competent.
[7]The second question sought to identify the limits of the fiscal's powers when she was investigating incidents. These could be no greater than the powers of a constable at common law.
[8]The power to search and seize could be catergorised in four ways. Firstly there was power to search with consent of the owner or some other person competent to consent. Secondly, Statute could authorise. Thirdly the Court could authorise by warrant. Fourthly, in neither case two or three, special circumstances could justify. Over all of these the Court had a power of scrutiny, and that had to be applied against the fiscal. Counsel referred me to Montgomery, and to Law Hospital. In Southern Bowling it was assumed without argument that the Court had power to supervise. Crime was not in issue. The same result was seen in Shepherd.
[9]The petitioners could not go to the nobile officium as such a procedure would not attract an award of damages. The Criminal Procedure Rules made under the Act of Adjournal and which covered devolution issues were of no help either (Rule 40) since there was no crime and no criminal proceedings. Thus the Convention rights claimed could not be aired in any such process. All of this pointed to the Court of Session having jurisdiction.
[10]Counsel then moved to consider the powers of the fiscal. Scottish practice demonstrated the importance of the Court's involvement. Reference was made to R (Rottman) v Commissioner of Police at paragraph 22. In all the examples given there was an accused. Here there was none, so why did the fiscal claim such wide powers. Search without a warrant is a civil wrong save in exceptional cases, and even a consent to search for and take property was not to be equated with depriving the owner of it or access to it. The problem in the present case was that no reason had been given, and the decision has been made without any time limit and not in relation to the circumstances of the case. The fiscal did not have an overall blanket common law power, without going to Court. He referred me to Bell v Black & Morrison at 1028 and 1031. The fiscal's office and her public duty do not protect her from illegal acts. There were no greater or more extensive powers just because the subject matter was a sudden death. The petitioners had some 30 cases to deal with and simply wanted access to their property. They would accept any conditions.
[11]Mr Jones then took me to a series of cases beginning with Watson v Muir. He referred me to passages at 184 and stressed that here, unlike in Watson, the refusal of access to the items was not a matter of consent. He relied on the remarks of Lord Moncreiff at 186 concerning examinations. The petitioners could not be refused a right to examine for themselves.
[12]Counsel then continued with a series of cases where warrants were involved, this bringing in the involvement of the Court. He looked at Stewart v Roach, especially at pages 2326/8 and 329; HMA v Turnbull at pages 100/102; Leckie v Miln at 264/5 and finally McGuigan v HMA. The English cases have tendered to dwell on the sanctity of the home and have tried to balance the rights of the individual and the police. Morris v Beardmore was cited as an example and reference was made to 455D and 456.
[13]In the present case it was a delict to take over the petitioners' premises and tell them to stay out. Without Court or Statutory Authority the power claimed was too wide. The petitioners were not asserting any absolute or unqualified right to enter their property. That was not what was in issue here. The prevention of access was in issue. He referred me to the terms of Article 14 and argued that whatever rights the petitioners had the respondent had no right to allow third parties access.
[14]The human rights point was then looked at and counsel referred to R v Secretary of State for the Home Dept (ex parte Daly) to ask the question of whether the fiscal was exercising her right proportionately. The petitioners had rights under Article 1 of Protocol No.1. Any control had to be necessary in the general interest. It could not be disputed that there had been interference. There had to be a fair balance of the petitioners' rights as against the public interest. The public interest was the only reason given and the petitioners did not seek to open up any issue of confidentiality. Sporrong &c v Sweden and Vendittelli v Italy were to referred to as well as Allegemeine Gold v UK and Jokela v Finland at paras. 44, 52 and 53. The problem in the present case was to know how any fair balance had been...
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