APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal No: C347/99
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
BILL OF ADVOCATION
PROCURATOR FISCAL, Hamilton
ALLAN SELFRIDGE and ANGELA HELEN BAIN
Complainer: Doherty, Q.C., A.D.; Crown Agent
Respondents: Muir; Ness Gallagher: Scott; Paul McGowan & Co.
4 August 1999
The complainer in this bill of advocation is the procurator fiscal at Hamilton. The respondents are Alan Selfridge and Angela Helen Bain, both of whom appeared in the Sheriff Court at Hamilton in respect of a petition dated 26 May 1999 at the instance of the complainer in which he craved the Sheriff to grant a warrant for their apprehension and detention on a charge of being concerned in supplying diamorphine and of being in possession of diamorphine with intent to supply it to another. The petition was basically in the form which has been traditional for many years and which begins with the statement "That from information received by the Petitioner, it appears, and he accordingly charges" the respondents that they did the acts charged. There is, however, a significant addition to the averments in the petition.
The date of the petition is of some significance since it was raised less than a week after 20 May 1999, the date on which the Lord Advocate was appointed by Her Majesty the Queen under Section 48(1) of the Scotland Act 1998. By virtue of that appointment he became a member of the Scottish Executive as defined by Section 44(1) and so has no power to do any act so far as it is incompatible with any of the rights under the provisions of the European Convention on Human Rights listed in Section 1(1) of the Human Rights Act 1998 (see Sections 57(2), 126(1) and 129(2) of the Scotland Act). As the Advocate Depute acknowledged, in the light of this legislation, the Crown changed its practice in drafting petitions of this kind. Although the Advocate Depute did not seek to specify precisely which Articles of the Convention might apply, he could see that the provisions of Article 5(1)(c), 5(2), 5(3), 5(4) and 6(3)(a) might all conceivably have a bearing on the position. The previous practice of simply referring to "information received" was based on the acceptance by the courts that the officials of the Lord Advocate would not bring such petitions unless the information which they had received justified them in doing so. With the provisions of the Convention in mind, the Crown decided to include in such petitions a brief indication of the information which the procurator fiscal had received and upon which arrest and detention were sought.
In this case the detail of the information received by the procurator fiscal is mentioned in a sentence on the face of the petition. In its original form the sentence said:
"The evidence against the accused ALLAN SELFRIDGE AND ANGELA HELEN BAIN is that Diamorphine was found by Police Officers on the above date within the house occupied by them."
We were told that the agent for Mr. Selfridge had suggested to the procurator fiscal depute that such evidence did not, on its face, support the charges of being concerned in supplying and of possession with intent to supply. In the light of that criticism the sentence was amended to read:
"The said information received by the Petitioner indicates that Diamorphine (of a quantity which in the opinion of a Drug Squad Expert is indicative of onward supply) was found by Police Officers on the above date within the house occupied by the accused."
In the Sheriff Court, prior to any plea or declaration being emitted on behalf of the respondents, the agent for Mr. Selfridge submitted that the disclosure of the evidential basis for the charges on the Petition was prejudicial to the respondents and in particular that it might prejudice the mind of the Sheriff when deciding whether or not to grant bail. The nature and strength of the evidence was not a factor which the court should take into account when considering whether or not to grant bail.
From the averments in the bill and from her report, it appears probable that the Sheriff did not accept this argument - which is in any event in our view misconceived. The inclusion in a petition of an indication of the information upon which the Crown seek the arrest and detention of an individual is plainly to the advantage of the individual concerned since it allows the court - and indeed the individual concerned - to see whether there is a proper basis for granting the warrant. We express no view, of course, as to what would constitute a proper basis for the grant of a warrant but, if no such proper basis were disclosed, the sheriff could refuse to grant the warrant sought. The change introduced by the Crown therefore tends to strengthen the role of the sheriff and in this way provides an additional safeguard for individuals against arbitrary arrest and detention. The amendment made to the petition in the light of the agent's criticism illustrates the point that the inclusion of the information can be of assistance to accused persons and their advisers.
So far as the form of such petitions is concerned, Section 34(1) of the Criminal Procedure (Scotland) Act 1995 merely provides:
"(1) A petition for warrant to arrest and commit a person suspected of or charged with crime may be in the forms
(a) set out in Schedule 2 to this Act; or
(b) prescribed by Act of Adjournal,
or as nearly as may be in such form; and Schedule 3 to this Act shall apply to any such petition as it applies to the indictment."
It was accepted that nothing in this provision or in the provisions to which it refers precluded the inclusion of the additional information: all that could be said was that Parliament had not envisaged it. For the reasons which we have given we see no reason in principle why this additional information should not be included in the petition. Equally, for those same reasons, it appears to us that the inclusion of the information will tend to benefit rather than to prejudice individuals facing arrest and detention.
We should add that we can see no basis upon which the inclusion of information about the Crown evidence could render the petition incompetent. The petition contains all the information which has ever been required and simply seeks the grant of a warrant, which has always been granted in the past in these circumstances. It appears that the Sheriff too may have had difficulty in seeing how the petition could be regarded as incompetent since the minute records that she simply sustained the submission "that the foregoing petition was not in proper form as the last 4 lines were superfluous to the petition and prejudicial to each of the accused". Counsel accepted that the mere fact that a petition contained superfluous but harmless material could not affect its validity. Any question could arise only from the inclusion of material which could be regarded as prejudicial to an accused person.
We have already noted that, by giving the Sheriff a basis for scrutinising the request for a warrant, the inclusion of information about the Crown evidence would tend to benefit accused persons. Counsel for Mr. Selfridge submitted, however, that it was prejudicial to include the information in the body of the petition and that it should have been set out on a separate sheet to which the Sheriff would have been referred. This, it was said, was the practice being followed by some procurators fiscal in some courts. As we understood the argument, the advantage of this procedure was said to be that, while the Sheriff might have the information at the stage of deciding whether to commit for further examination, it would not be before the Sheriff when eventually deciding whether to grant bail at the stage of full committal. The danger was that, if this additional information setting out the evidence were included on the face of the petition, the Crown would use it to argue against the grant of bail and the defence would be powerless to counter such arguments. Indeed we were informed that, in order to avoid this danger, in some courts procurators fiscal were detaching sheets containing this information from the sheriff's copy of the petition at the full committal stage.
It is unnecessary for us to decide in this case whether information about the evidence available to the Crown would be relevant to the decision on whether or not to grant bail. We would, however, note that, if such information were relevant to a decision to commit for further examination, we should expect the information, whether supplemented or not, to be relevant also to the decision to commit until liberated in due course of law. In any event, assuming, for the sake of the argument, that the position were that sheriffs should not consider such information when determining an application for bail, they would simply need to apply their minds to the relevant factors and to disregard the (ex hypothesi irrelevant) information about the Crown evidence. It is one of the skills required of sheriffs and other judges that they should carry out precisely that kind of exercise in many different situations. The mere fact that sheriffs might need to disregard information for one purpose is, accordingly, not a reason for excluding it from the body of a petition if it would be relevant for their decision on other aspects of the petition. In our view the argument relating to bail must be rejected.
The remaining argument was that the inclusion of the information in the petition might be prejudicial to accused persons if the text of the petition were ever placed before a jury. It was the common experience of agents, counsel and the Judges present in court that, although they had noticed petitions being included among the productions at trials, they could not recall reference being made to them. We must assume, however, that on occasion it might be necessary to refer to the petition. Even on that basis the perceived prejudice to an accused person is illusory. The difficulty could arise only where the information in the petition went further than the evidence already led at the trial. In that situation those conducting the trial would be able to ensure that no reference was made to that information in the presence of the jury. If a copy of the petition had, for some reason, to be put before the jury, the relevant portion could, for instance, be blanked out in accordance with what is now a familiar technique. We envisage no real difficulty in such cases.
For these reasons we are satisfied that the petition was competent and that the Sheriff erred in upholding the submission for the respondents and dismissing it. We shall accordingly pass the bill and remit to the Sheriff to proceed as accords.