R v Manchester. ; Stipendiary Magistrate and Another, ex parte Granada Television Ltd
| Jurisdiction | England & Wales |
| Judge | LORD BROWNE-WILKINSON,LORD COOKE OF THORNDON,LORD HOPE OF CRAIGHEAD,LORD SAVILLE OF NEWDIGATE,LORD MILLETT |
| Judgment Date | 14 December 1999 |
| Judgment citation (vLex) | [1999] UKHL J1214-1 |
| Date | 14 December 1999 |
| Court | House of Lords |
[1999] UKHL J1214-1
HOUSE OF LORDS
Lord Browne-Wilkinson
Lord Cooke of Thorndon
Lord Hope of Craighead
Lord Saville of Newdigate
Lord Millett
(On Appeal from a Divisional Court of the Queen's Bench Division)
My Lords,
I have read in draft a copy of the speech of my noble and learned friend Lord Hope of Craighead. For the reasons which he gives I would allow the appeal.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hope of Craighead. For the reasons given by him, I would allow the appeal.
My Lords,
When a constable of a Scottish police force wishes to obtain a search warrant he makes a report to the procurator fiscal, who in Scotland is the public prosecutor. This is because in Scotland applications to the courts of summary jurisdiction in criminal matters are made by the procurator fiscal, not by the police. Once the case has been reported to the procurator fiscal, it is the procurator fiscal who has charge of the case. The police act thereafter on his instructions in all matters regarding the investigation and prosecution of any offence. More often than not the offence which is under investigation is a common law offence, because many of the offences which are most commonly prosecuted in the Scottish courts, such as assault, breach of the peace and theft, are common law offences. And it is normal for the court of summary jurisdiction in Scotland, when it grants a search warrant, to do so in the exercise of common law powers. The exercise of statutory powers may be necessary or desirable in cases where it is believed that a statutory offence has been committed. But, unless the court is directed to the contrary by statute, the power to grant search warrants is regulated by the common law.
The system which I have described works perfectly well in Scotland. But, as the present case demonstrates, difficulties may arise when the procurator fiscal wishes to obtain a warrant for the search of premises which are situated outside the jurisdiction of the Scottish courts.
The facts
On 23 February 1998 the procurator fiscal applied by petition under the Criminal Procedure (Scotland) Act 1995 in the Sheriff Court of Glasgow and Strathkelvin at Glasgow for the granting of a warrant to search premises in England. He asked the sheriff to grant a warrant to Detective Sergeant Cameron Cavin of Strathclyde Police to search the premises occupied by Granada Television at Quay Street, Manchester and to secure and take possession of any evidence material to the investigation of a crime which was alleged to have been committed in Glasgow. He averred in his petition that he had received information that between 21 January 1994 and 6 April 1994 a woman had been culpably and recklessly infected with the Acquired Immune Deficiency Syndrome (AIDS), that in a recording of a programme which had been broadcast by Granada Television on 17 March 1997 the interviewee was alleged to have admitted having unprotected sexual intercourse with the woman in the knowledge that he was infected with the HIV virus and that there were reasonable grounds for believing that evidence material to the investigation of the crime, and in particular the identification of the interviewee, was in the possession of Granada Television on its premises in Manchester.
On the same day, after hearing evidence from Detective Sergeant Cavin as to the truth of these averments, Sheriff Laura Duncan made an order in these terms:
"The Sheriff having considered the foregoing Petition grants Warrant as craved. Further recommends Judges of all other countries and jurisdictions to grant Warrant of concurrence necessary for enforcing the Warrant within their respective territories."
On 26 February 1998 Mr. Alan Berg, a stipendiary magistrate for Greater Manchester, signed the following endorsement to the warrant under section 4 of the Summary Jurisdiction (Process) Act 1881:
"Whereas proof hath this day been made before me, one of Her Majesty's Justices of the Peace for Manchester Magistrates' Court that the name of Laura Duncan to the within warrant subscribed is of the handwriting of Sheriff within mentioned, I do therefore hereby authorise Cameron Cavin, Constable, Strathclyde Police who bringeth to me this warrant and all other persons by whom the same may be lawfully executed, and also all constables and other peace officers of the court district of Manchester Magistrates' Court to serve and execute the same within the last-mentioned court district."
Acting on instructions from the Procurator Fiscal, the officers of Strathclyde Police did not seek to enforce the warrant in Manchester immediately. Instead they drew the existence of the warrant to the attention of Granada Television with a view to obtaining their co-operation in identifying the interviewee. But Granada refused to co-operate with them on the ground that they had not been released from their undertaking of confidentiality to the interviewee. They also maintained that the warrant was invalid and unenforceable. On 8 June 1998 they were granted leave to apply by way of judicial review for an order to quash the endorsement of the warrant by the stipendiary magistrate. On 16 October 1998 their application for judicial review was granted by the Divisional Court (Brooke L.J. and Sedley J.) [1999] 2 W.L.R. 460, which quashed the endorsement and certified the following question as raising a point of law of general public importance:
"Does section 9(2) of the Police and Criminal Evidence Act 1984 disapply section 4 of the Summary Jurisdiction (Process) Act 1881 so as to preclude the endorsement and execution in England of search warrants for special procedure material and excluded material issued in Scotland?"
As Sedley J. observed in the Divisional Court, at p. 461F-G, the application raises significant and difficult questions about cross-border criminal process in the United Kingdom. The Union Agreement of 1707, commonly known as the Treaty of Union, united the kingdoms of England and Scotland "into one kingdom by the name of Great Britain": Union with Scotland Act 1706 (6 Anne, c.11), Article I. But, as Professor A.E. Anton, Private International Law (2nd edition, 1990), p.7 has pointed out, far from ensuring the questions of international law would no longer arise between England and Scotland, the Treaty of Union ensured that they would arise by preserving intact the Scottish legal system and the courts which administered it: see Articles XVIII and XIX. In Stuart v. Moore (1861) 4 Macq. 1, 49 Lord Campbell L.C. said:
"As to judicial jurisdiction, Scotland and England, although politically under the same Crown, and under the supreme sway of one legislature, are to be considered as independent foreign countries, unconnected with one another."
Shortly after the Union it was established that a right of appeal lay in civil matters from the Court of Session to the House of Lords. But the High Court of Justiciary, which is the supreme criminal court in Scotland, is unique among the superior courts of the United Kingdom in that its decisions are not subject to appeal to this House: Mackintosh v. Lord Advocate (1876) 3 R.(H.L.) 34. In the result the system of criminal law which operates in Scotland has remained entirely separate from that of England. Prior to the coming into force of the Scotland Act 1998 on 1 July 1999 legislation relating to Scottish criminal law and procedure was dealt with by the United Kingdom Parliament. But even that matter has now been devolved to the Scottish Parliament. Thus, although there is now much common ground between England and Scotland in the field of civil law, their systems of criminal law are as distinct from each other as if they were two foreign countries.
Two aspects of the system of criminal law which exists in Scotland are relevant to this appeal. The first is that much of that system is still based on the common law as developed by decisions taken by Scottish judges in the High Court of Justiciary. A large number of the crimes which are prosecuted in the criminal courts of Scotland, both on complaint and on indictment, are common law crimes. For example, the act of causing harm by culpable and reckless conduct which is alleged to have been committed in this case is said to be a common law crime under Scots law. Also, although much of the procedure of the courts of criminal jurisdiction in Scotland is regulated by the Criminal Procedure (Scotland) Act 1995, the powers which the judges in these courts exercise are for the most part common law powers. Unless limited or extinguished by statute, the powers which are available to the judges to grant search warrants are those of the common law: Watson v. Muir, 1938 J.C. 181; Normand, Complainer, 1992 S.L.T. 478.
The second aspect is that the entire system for the investigation and prosecution of crime in Scotland is in the hands of the public prosecutor. Overall responsibility for the investigation and prosecution of crime rests with the Lord Advocate. He presides over a system which is operated on his behalf in the sheriff and district courts by the procurator fiscal. The functions and powers of the procurator fiscal long pre-dated the inception of police forces in Scotland. So, while there is a close working relationship between the prosecutor and the police, the police remain subject to the control of the procurator fiscal: Stair Memorial Encyclopaedia, vol. 17, Procedure, para. 615. Moreover the organisation and administration of the police forces in Scotland is entirely separate from that in England...
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