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Further full bench hearing ordered on challenge to warrant evidence

19 May 2017

For the second time in a week, the Criminal Appeal Court has ordered a hearing before a court of five judges in an attempt to resolve a matter of procedure that causing confusion in criminal trials.

Last week the court agreed that the directions to be given to juries over the use of video evidence needed to be clarified, in an appeal against conviction for rape where there was a dispute over whether the complainer was too drunk to consent to intercourse (click here for report). Yesterday the court decided it was time to address the "somewhat clumsy procedure" sometimes followed when a challenge is made to the admissibility of evidence recovered under a search warrant, based on the validity of the warrant.

The case involved an appeal by Alexander Sturrock, charged in connection with a quantity of heroin said to be worth £35,000, found in his home. A police inspector had been advised by his superior, without being given further information, that the accused had taken delivery of the drugs. He considered there to be insufficient information on which to obtain a search warrant, and that as it was a Sunday afternoon it would take some hours to obtain a warrant, but that urgent action was required to prevent the drugs being distributed. He instructed officers to force entry to the property, to detain any persons found there and to preserve the property until a search warrant was obtained. He considered that this was a legitimate course of action in terms of HM Advocate v McGuigan 1936 JC 16. When officers forced entry, they made a five minute check and noticed burnt tinfoil and a roll of clingfilm on a coffee table. They made no further search, but applied for a warrant based on these findings and information on the accused held on the police database. A search under the warrant revealed the drugs.

After hearing evidence under a minute in terms of s 71 of the Criminal Procedure (Scotland) Act 1995, the sheriff concluded that the search was regular in terms of the McGuigan case and he therefore did not require to address the issue of excusal.

On the accused's appeal against this decision, the High Court raised a concern that, standing the sheriff’s finding that there had been no search of the premises prior to the obtaining of the warrant, neither party had addressed the existence of the warrant on which that search was based, or made reference to Allan v Tant 1986 JC 62. The court was also aware that practical difficulties had previously arisen as to the most suitable method of challenging evidence in such circumstances.

The Allan case decided that a sheriff had no power to review the granting of a warrant, which could only be done by bill of suspension to the High Court. This had resulted in a "cumbersome" procedure developing where it was sought to reduce a warrant, with proceedings being adjourned for a separate bill of suspension to be brought – a procedure which however was not a process designed to resolve issues of fact.

"The position adopted by both parties in the present case was that there was a lack of clarity about the appropriate procedure to be followed, and a degree of uncertainty amongst the profession", the Lord Justice Clerk, Lady Dorrian, stated in delivering the opinion of the court, in which she sat with Lords Brodie and Drummond Young. "This is a highly undesirable state of affairs."

She concluded: "The submissions of the parties in the present case tend towards a position in which the issue of whether there was a proper basis for granting the warrant (the first issue addressed in Allan v Tant) might be separated from the second, the admissibility of the evidence flowing from the warrant. The result would be that in a s 71 minute the court would not be considering the question whether the warrant had properly or validly been granted: rather it would be addressing the wider question of admissibility of the evidence, in consideration of which the existence of the warrant would only be one relevant factor.

"We make no observations as to the merits or otherwise of such a proposal. The issue is clearly one of very great importance, and is one on which there currently appears to be some confusion. Any reconsideration of procedure would involve an appraisal of the decision in Allan v Tant, or at least the way in which it has been interpreted. To do that requires this case to be remitted to a larger court, which is the course of action we shall adopt."

Click here to view the opinion of the court.

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