MacNeill, Complainer
| Jurisdiction | Scotland |
| Judgment Date | 05 October 1983 |
| Date | 05 October 1983 |
| Docket Number | No. 1. |
| Court | High Court of Justiciary |
JC
L. J.-G. Emslie. Lords Cameron, Avonside.
Administration of justice—Procurator fiscal—Power at common law to apply for warrant to search premises for materials relevant to commission of offence—Whether excluded by implication of statute—Civic Government (Scotland) Act 1982 (cap. 45), sec. 51 (2)1.
A petition was presented on behalf of a procurator fiscal to a sheriff craving a warrant to search certain premises and to take possession of obscene material and such documents as appeared to relate to contraventions of sec. 51 (2) of the Civic Government (Scotland) Act 1982. The sheriff refused the petition on the ground that there was no provision in the 1982 Act authorising such a warrant. The procurator fiscal presented a bill of advocation to the High Court in respect of that decision.
Held (1) that the complainer as procurator fiscal had power at common law to prosecute all offences, including contraventions of statute, unless his title to do so was expressly or by necessary implication removed by statute and he had the ancillary power to search under warrant, unless this was also so removed.
(2) That there was no such provision in the 1982 Act removing or restricting the common law powers of the complainer; and bill passed and cause remitted to the sheriff to proceed as accords.
Malcolm Torquil MacNeill, Procurator fiscal at Aberdeen, presented a petition to the sheriff at Aberdeen craving a warrant to search certain premises in Aberdeen and to take possession of obscene material and such documents or other articles as appeared to relate to the sale, or having or keeping with a view to sale, of such material in contravention of section 51 (2) of the Civic Government (Scotland) Act 1982. The sheriff (Russell, Q.C.) refused the petition on the ground that it was incompetent. The procurator fiscal presented a bill of advocation to the High Court of Justiciary.
The bill was heard before the High Court on 5th October 1983. The arguments of the complainer appear fully from the opinion of Lord Cameron.
At advising on 5th October 1983,—
LORD CAMERON.—This is a bill of advocation at the instance of the procurator fiscal at Aberdeen against the decision of Sheriff A. M. G. Russell, Sheriff of Grampian, Highland and Islands at Aberdeen, dated 27th June 1983, whereby the sheriff, upon a petition at the instance of the complainer as procurator fiscal for Aberdeen for the public interest, craving a warrant to search the premises of Nolan-Light Limited, 8 Chattan Place, Aberdeen, and to take possession of obscene material and such documents or other articles as appear to relate to the sale, or having or keeping with a view to sale, of such material in contravention of section 51 (2) of the Civic Government (Scotland) Act 1982, refused the petition.
The circumstances out of which the bill is presented are set out in the statement of facts. It would appear that on 21st June 1983, the complainer came into possession of information which established grounds for his suspecting that Nolan-Light Limited were in possession of obscene material, namely books, magazines, films, video tapes, cassettes and other articles of a similarly obscene nature, at their shop premises at 8 Chattan Place, Aberdeen, with a view to the sale by them of such obscene material in contravention of section 51 (2) of the Civic Government Act 1982.
On 24th June 1983 the complainer's depute drafted a petition at the instance of the complainer craving a warrant to search the said shop at 8 Chattan Place, Aberdeen and, if necessary, to take possession of and examine all obscene material and such documents or other articles relating to the sale of such obscene material, or relating to the having or keeping such obscene...
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Normand, Complainer
...advocated,decision recalled, and cause remitted to the sheriff with a direction to grant the warrant craved. MacNeill, Complainer 1984 J.C. 1 followed. Andrew Christie Normand, procurator fiscal, Glasgow, presented a bill of advocation to the High Court of Justiciary, in which he made the f......
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Burke v Wilson
...submitted that there was no power to seek a search warrant. Section 60 alone gave that right. Reference was made to MacNeill, Complainer 1984 J.C. 1. The prosecutor had therefore to fall back, said counsel, on the common law position. Here there was no common law warrant to search as there ......
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Her Majesty's Advocate V. William Frederick Ian Beggs (opinion No. 4)
...made in Renton & Brown's Criminal Procedure, 6th Ed., at para.5.04 and the authorities there mentioned, including MacNeill, Complainer, 1984 J.C. 1. It is indicated in that paragraph of that work that: "The procurator fiscal is, however, entitled to apply for a search warrant by way of an u......