Scottish High Court of Justiciary Decisons

ALAN HERD v. HER MAJESTY'S ADVOCATE [1999] ScotHC 64 (12th March, 1999)

This is a Bill of Suspension at the instance of Alan Herd, seeking suspension or reduction of a search warrant granted by a justice of the peace in Glasgow on 9 February 1998. Application for the warrant was made by a constable of Strathclyde Police in terms of section 23(3) of the Misuse of Drugs Act 1971 as amended, upon the basis that it appeared to him, from information received by him, that there was reasonable ground for suspecting that controlled drugs (or a document as specified in that section of the Act) were in the possession of a person (unspecified) "on the premises at 15 Coxton Place, Glasgow occupied by Herd". The application sought warrant, "authorising any Constable of Strathclyde Police, at any time within one month from the date of the warrant, to enter, if need be by force, the premises above specified and to search said premises...and any persons found therein", and if there was reasonable ground for suspecting that an offence under the Act had been committed in relation to any controlled drugs "found on said premises or in the possession of any such persons" to seize and detain those drugs (with similar authority in relation to relevant documents). Warrant was granted, on the same sheet of paper, as craved.

It is stated in the Bill that the execution of the warrant resulted in the recovery of material which founds charges upon which the complainer has been indicted to stand trial at a sitting of the High Court. In the indictment in question, each of three charges is to the effect that "at the house occupied by you at Flat 2/2, 15 Coxton Place, Glasgow" the complainer committed a specified offence under the Misuse of Drugs Act 1971. Moreover, the complainer's domicile of citation is specified as Flat 2/2, 15 Coxton Place, Easterhouse, Glasgow.

In terms of paragraph 4 of the Bill, the complainer avers that "the pretended warrant lacks specification of the location of the flat in respect of which said warrant was granted"; and the issue which the complainer seeks to raise by means of the present Bill is whether that averred lack of specification is such as to require the suspension or reduction of the warrant, which is acknowledged to be "ex facie valid". However, the raising of that issue by way of Bill of Suspension gives rise to another, underlying question: is procedure by Bill of Suspension competent and appropriate in the circumstances? We shall return to that question; but as the answer to it depends, in our opinion, upon a proper analysis and understanding of the issue which the complainer seeks to raise, it is convenient to consider that issue first.

It is necessary at the outset to note what the issue is not. It is not an issue as to the intrinsic ex facie validity of the warrant: no necessary element, such as a date or a signature, is said to be missing from the warrant, and even in relation to the specification of the premises, no question arises as to the intrinsic form of the warrant, or the fact that (as in Bell v. H.M. Advocate 1988 S.C.C.R. 292) the premises are not named in the warrant itself, but in the application which the warrant grants as craved. Equally, this is not a case in which the complainer seeks to "go behind the warrant" by raising questions as to the sufficiency of the information upon which the application proceeded (as in Allan v. Tant 1986 S.C.C.R. 175, 1986, and Stuart v. Crowe 1991 S.C.C.R. 181), or as to the propriety or adequacy of what was done by the justice of the peace when granting the warrant (as in H.M. Advocate v. Rae 1992 S.C.C.R. 1), or as to the good faith of the applicant constable, or of the justice or indeed of anyone involved in either the grant or the subsequent execution of the warrant. Nor again does this case fall into the category where the warrant itself is (or at least may be) valid and capable of execution at the premises which it names, but on a proper reading is a warrant authorising search at other or more limited premises, but not covering the premises in question. Cf. McAvoy v. Jessop 1988 S.C.C.R. 172. In such cases, the defect lies not in the warrant, but in reliance upon it at particular premises. Moreover, although in the present Bill a plea in law was stated to the effect that since the pretended warrant was invalid, any proceedings founded or dependent on its execution should be declared invalid, this was not insisted in: it was accepted, upon the basis discussed in Lawrie v. Muir 1950 JC 19 and McAvoy supra that even if the warrant were held to be invalid, there was at least in theory a possibility that separate questions might remain as to whether the irregularity might be excusable and as to the admissibility of any evidence which the Crown might seek to lead at trial on the indictment. A search may of course also be regarded as lawful on the basis of consent, or implied consent. What the complainer seeks to put in issue at present, by means of the Bill of Suspension, is the validity of the warrant itself without, at this stage, any consideration of these factual and circumstantial matters, upon which the practical and perhaps vital question of admissibility of evidence might turn.

We come therefore to the issue raised by the complainer in the present Bill. It is not disputed that the premises at 15 Coxton Place, Glasgow consist of a tenement block of six flats. It is not disputed that the complainer occupies only one of these, Flat 2/2, which is on the second floor, to the left. It is not suggested that the application and warrant in the present case were intended to cover the entire tenement block of 15 Coxton Place or any other part of the block: they were intended to relate to the complainer's flat alone. It was therefore that flat which, in one way or another, had to be "named in the warrant" for the purposes of section 23(3) of the 1971 Act. It was not suggested that the only way of identifying a specific flat in a block of tenements was by use of a flat number such as "2/2", or by saying whether it lay to the left or the right on a particular floor. It was not suggested that description of a specific flat as the premises at the tenement address occupied by an identified individual would necessarily be lacking in specification. The test was as stated in Bell v. H.M. Advocate supra at pages 295-6:

While the issue in that case turned not upon the words used to describe the premises and identify them, but upon the fact that the descriptive words were contained in the application and only referred to in the warrant, it was not disputed that the passage quoted provides the test which has to be applied in judging the sufficiency of the identification of the premises, as a matter of principle.

The test thus being a practical and indeed functional one, it is clear that a tenement address coupled with identification of the occupant of a particular flat can, and normally will, meet that test. The words "the premises at 15 Coxton Place, Glasgow, occupied by Herd" are at first sight quite sufficient to meet the test. No general criticism of this approach to identifying a particular flat can be made. More particularly, the words "premises at 15 Coxton Place, Glasgow occupied by Herd" constitute a correct description of the complainer's flat. The problem arises from circumstances extraneous to the warrant and its terminology, and indeed one particular extraneous circumstance.

Not only is flat 2/2 occupied by the complainer Mr. Herd. It is averred by him, and we do not understand it to be disputed, that Flat 0/2, (ground floor, left) is occupied by the complainer's parents, also named Herd; and that both flats were so occupied on or about 9 February, 1998. That being so, while the complainer's flat could perfectly properly be described as "premises at 15 Coxton Place, Glasgow occupied by Herd", so also could his parents' flat 0/2. Since two separate sets of premises at the same address could correctly be given this description, it was submitted that further specification would be required, to identify the one as opposed to the other. Putting the matter somewhat differently, one might say that in referring to "the" premises at 15 Coxton Place, Glasgow occupied by Herd, the description in the application is referable to both Flat 0/2 and Flat 2/2, or to neither, since the existence of both means that the definite article is inappropriate for either. Applying the test set out in Bell, it was submitted that if this warrant were shown to the occupier of either flat, that occupier would not be able, on examining it, to satisfy himself that the constable had authority to search his particular flat, and one could not say that the warrant clearly identified the premises which the constable had power to search. It might be either flat. That remained true, even if the constable had been entirely unaware of the existence of a second flat which met the description he had used. However understandable it might be that he had used the particular description, thinking it to be sufficiently specific, his belief in its sufficiency and uniqueness would be of no avail, if he was in fact wrong and examination of the warrant would not enable the occupier of either flat to satisfy himself that the authority to search related to his flat.

While it is averred in paragraph 4 of the Bill that the complainer "could not on examination of said warrant satisfy himself that a police constable had authority to search his premises", it is to be noted that this is not a narrative of events at the time of execution of the warrant. It is rather an expression of the test laid down in Bell, and the failure of this warrant to meet that test. It appears from paragraph 3 of the Bill that it was only in the course of preparation for trial that the complainer's agents discovered the position. Given that the search took place and resulted in the recovery of material, it appears that the complainer, if he examined the warrant at all, was either satisfied that the police had authority to search his premises, or at all events did not raise the point about Flat 0/2 with the police. As we have indicated, the Bill is concerned with the validity of the warrant in principle: it proceeds on the basis that no question arises for consideration by this court at this stage as to what happened at the time of execution and search, or indeed now as to the lawfulness of the search or the admissibility of evidence.

The contentions advanced on behalf of the complainer and the Crown reflect a fundamental difference of approach. For the complainer, the point is essentially a simple one. There is no intrinsic ambiguity in the meaning of the words used. But what matters is whether there is an ambiguity in their reference: does the clear intrinsic sense of the words fit more than one set of premises? Just as, say, the unambiguous words "the top flat" will turn out to be ambiguous and referentially useless if there are two flats on the top floor of a tenement, so too, in the present case the actual facts, extraneous to the terms of the warrant, make those terms ambiguous and insufficiently specific for their purpose. They simply do not refer to or identify any one particular flat. Other issues of lawfulness and admissibility may of course turn upon what the complainer in fact did at the time. But this particular issue as to the validity of the warrant does not do so: it can be resolved separately and in advance of other issues.

For the Crown on the other hand, it was submitted that the issue of the validity of the warrant cannot properly be resolved in advance of enquiry into what happened when the warrant was presented to the complainer. The advocate depute relied upon the fact that the test in Bell turns upon whether the actual occupant can be satisfied as to the constable's authority, and suggested that this occupant had apparently been satisfied: there was no suggestion that the search had been by force. An occupier's actual state of knowledge, and facts personal to him, might well be relevant in considering whether the description used in a particular warrant would enable him (as distinct from anyone else) to satisfy himself as to the constable's authority. In the present case, the complainer presumably knew that his parents occupied Flat 0/2. The approach on behalf of the Crown involves looking at background circumstances, and events at the time of execution, in order to discover whether the test in Bell is met. As we understand the approach, the submission would be that if, looking at the background and the circumstances, it appeared that the warrant expressly, and with reasonable specification, related to the complainer's premises, albeit, coincidentally, it was apt to relate also to a separate flat in the same house belonging to his parents, it would be wrong to regard the warrant as inherently invalid. If the complainer had taken the point there and then that the warrant was ambiguous, the position might be different. But if he had not taken the point, and had apparently admitted the police on the faith of the warrant, he should be taken to have satisfied himself that his were the premises intended. That would meet the test expressed in Bell.

The contentions for the parties being on these lines, we turn to questions of procedure. The advocate depute did not contend that suspension or reduction of an ex facie valid warrant could not competently be sought by way of Bill of Suspension. Unless and until a warrant has been suspended or reduced or set aside, the warrant stands: see Allan v. Tant page 178. Where there are grounds for "going behind" the warrant to show that it is invalid, procedure by Bill is evidently competent (Stuart v. Crowe). Even when the issue of validity arises in relation to, or in the course of, a High Court trial, proceeding by Bill of Suspension may be necessary: H.M. Advocate v. Rae. What was submitted by the advocate depute was that in the circumstances of the present case, procedure by Bill was inappropriate, at least in advance of trial, since the evidence at trial, perhaps after objection, might bear upon or determine the issue of validity, or resolve questions as to the lawfulness of search or the admissibility of evidence, regardless of the warrant's validity. Questions as to what procedures were required, or as to whether particular issues needed to be resolved in advance of trial, could in any event be raised by seeking a preliminary diet, as had been suggested in H.M. Advocate v. Rae. The issue of validity could not be resolved separately in the circumstances of this case. In any event recourse to procedure by Bill of Suspension in advance of trial, leaving over questions as to the lawfulness of the search or the admissibility of evidence which might arise sharply at trial, was not appropriate in the circumstances of this case.

Like the trial judge in H.M. Advocate v. Rae, we are not satisfied that we have really had full argument presented to us on all the matters which may be relevant to determining the appropriateness of any given procedure. Without expressing any concluded view, we are strongly inclined to think that the adoption of a separate procedure to determine the validity of a warrant in vacuo, before there has been any consideration of the use to which that warrant was put, or as to the lawfulness of any ensuing search or the admissibility of any consequential evidence, is unsatisfactory and will only be appropriate in rare and special situations; and even then probably only if a preliminary diet has led to that course being seen as unavoidable. Adjournment of a trial in order to allow procedure by Bill of Suspension if reduction of an ex facie valid warrant becomes a significant practical issue is plainly unsatisfactory. Nonetheless we think that it will usually be preferable to take the risk of that situation emerging, rather than have procedure by Bill which may turn out to have had only academic significance, divorced from consideration of practical issues, and perhaps itself, as in this case, involving the discharge of trial diets and possible extensions of statutory time limits.

We have considered whether the present Bill having been brought, the fact that it may not have been appropriate to adopt this procedure at this stage should not in itself lead us to refuse to pass the Bill. Its formal competency is not disputed. It is at least possible that it would prove necessary in the course of trial to seek an adjournment in order to raise an identical Bill of Suspension at that stage. That would plainly be unsatisfactory.

We see some force in both of the very different approaches of the complainer and the Crown. However, we do not think that it is possible to assess the Crown's approach adequately without investigation of the background and circumstances which, on that approach, are said to have a bearing on the validity of the warrant. That being so, we do not feel able to treat this case as one where there is a separate issue of validity, determinable in advance, justifying a departure from what we think should be the normal procedure in dealing with these matters. In these circumstances, and without prejudice to a further Bill being presented if that were to become necessary, we refuse to pass this Bill.