Scottish High Court of Justiciary Decisons

Foulis & Anor, Her Majesty's Advocate v [2002] ScotHC 29 (13 March 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Cameron of Lochbroom Lord Kingarth Lord Carloway	Appeal No: 90/02 OPINION OF THE COURT delivered by LORD CAMERON OF LOCHBROOM in CROWN NOTE OF APPEAL in terms of section 74 of the Criminal Procedure (Scotland) Act 1995 by HER MAJESTY'S ADVOCATE Appellant; against DEAN ROBERT FOULIS and GRANT YOUNG Respondents: _______

 

 

Appellant: Armstrong, Q.C., A.D.; Crown Agent

Respondents: M.E. Scott; Muir Myles Laverty, Dundee: Sadler; Bruce & Co., Dundee

13 March 2002

1. This note of appeal for the Crown concerns a decision of the sheriff after a debate before him consequent upon the lodging of a minute of notice in terms of section 72(1) of the Criminal Procedure (Scotland) Act 1995. Dean Robert Foulis and Grant Young had been indicted for trial on a charge that they had between 21 October 1998 and 2 November 2000 formed a fraudulent scheme to steal and reset motor vehicles, remove identifying features and replace them with false ones. The minute of notice proceeded on the ground that police officers had illegally searched certain farm premises near Dundee on 2 November 2000 and that the officers did not seek the authority of the court by way of a search warrant to search the premises. It is enough to say that after sundry procedure the sheriff, at a preliminary diet held on 4 January 2002, heard parties of consent on a further matter. This concerned the validity of the search warrant, Crown production number 1, on the ground that it was not dated. The sheriff sustained the objection stated to the validity of the search warrant and held that it was not a valid warrant and therefore that the evidence of the search and pertaining to anything recovered in the course of the search would be inadmissible.
2. Crown production number 1 is the manuscript petition of the procurator fiscal, Dundee, dated 2 November 2001 presented to the sheriff under the Criminal Procedure (Scotland) Act 1995. For present purposes it is unnecessary to set out the detail in the petition which gave rise to the application other than to record that the prayer of the petition craved the court to grant warrant to a named police constable to search certain premises including the foregoing farm premises. At the end of the petition and after the signature of the principal procurator fiscal depute appeared the following:

"Dundee November 2000

The sheriff having considered the foregoing petition grants warrant as craved"

This bore to be signed by Sheriff Scott and appended to his signature is the designation "Sheriff of Tayside, Central & Fife at Dundee" also in his manuscript.

3. In determining that the warrant must be regarded as invalid and that therefore any evidence obtained in the course of its execution would be inadmissible, the sheriff in his Note sets out that in the absence of any clear, direct, modern authority on the topic, he had regard to certain considerations which he detailed as follows:
1. That such authority as bore upon the present circumstances, i.e. the reference to Alison's proposition in Sheriff Stoddart's text, and the judgments in Bulloch and Welsh, favoured the proposition advanced by Mr. Lavery that there were certain basic formalities essential to the validity of all warrants, one of which must be the precise date of subscription. There was no authority cited to me which bore to be to the opposite effect.
2. That the alternative conclusion was that the failure to insert the date could potentially be an excusable error. That did not strike me as being a happy state for the law to find itself in as it would introduce an element of uncertainty should a similar failure occur in the future into a situation where certainty would be preferable and expedient where the formality to be observed was not one the observance of which would be surrounded with any difficulty.
3. That it was an unattractive proposition that a court would have to engage in an exercise of discretion to decide whether another judge or sheriff had made an error and, if so, whether that error was or was not excusable in the circumstances; that did not in my opinion consist with the requirement for justice to be seen to be done. In any event, the Opinions of the Court in both Bulloch and Welsh, the two eminent judges presiding had both expressed the opinion that it would be incompetent to admit parole evidence as to the date on which the warrant had been signed and so the defect could not be cured by the leading of evidence: and
4. That it would be obvious to a layman looking at the warrant that there had been an omission to insert the precise date into a formal legal document where it was apparent that the draftsman of the document expected the date to be inserted and there was therefore a risk that such a layman on the receiving end of such a warrant might have a genuine difficulty, even with the benefit of legal advice, in knowing whether he should or should not co-operate with any attempt to enforce the warrant."
4. The question which the sheriff poses in his Note is whether he was correct to sustain the minute for the first pannel, Dean Robert Foulis, and determine that the failure to insert the precise date in the warrant rendered the warrant invalid.
5. In presenting his submissions the advocate depute began by pointing out that the warrant sought was a common law warrant. Unlike warrants granted under statutory authority, the authority given by the grant of the warrant was not limited by a specific time limit for its execution. The warrant did in fact bear a date, namely "November 2001". The question thus was whether the date had to be any more precise, having in mind that the petition to which the warrant was attached carried a more precise date, "2 November 2001". In that respect, the present case fell to be distinguished from those to which the sheriff referred. In Bulloch v. HMA 1980 SLT (Notes) 5 the warrants concerned were dated "September 1976" but were granted in terms of section 37(3) of the Finance Act 1972 which empowered a sheriff to issue a warrant authorising any authorised person to enter the specified premises at any time within 14 days from the time of the warrant's issue. Lord Ross held that the warrants were not ex facie valid because in each instance in the body of the petition the petitioner sought a warrant to enter premises from the date of the grant and the failure of the warrant to say what this date was meant that no one could know whether a warrant was being executed within 14 days. It was in that context that Lord Ross observed:

" I know of no authority for the proposition that the lack of a precise date upon a warrant can be made good after the event in a case where the date is critical on the question of validity. It is the sheriff who must certify the date upon which he grants the warrant and where that has not been done I do not consider that evidence from other sources should be admitted to make good the deficiency".

In HMA v. Welsh 1987 SCCR 647 Lord Allanbridge sustained an objection to evidence obtained as a result of a search under a warrant granted in terms of section 23(3) of the Misuse of Drugs Act 1971. That section empowers a justice of the peace, magistrate or sheriff to grant authority to a constable to enter the specified premises at any time or times within one month from the date of the grant. In following the decision of Lord Ross, Lord Allanbridge observed:

"I consider that the case of Bulloch is authority for the view that search warrants that lack precise dates, or any date at all, are defective and ought not to be used in any circumstances. I respectfully follow and accept the ratio of Bulloch's case. The matter is as simple and straightforward as that. A search warrant which is undated is ex facie invalid. The Crown cannot establish the date on which the warrant was signed, or was probably signed, by parole evidence or evidence which is extraneous to the warrant itself."

The advocate depute then drew attention to passages in Hume and Alison concerning the grant of warrants. In Hume ii. pp 78-79 the author considers both the form of a warrant to apprehend and the power of breaking open doors to execute the warrant which extended to a warrant to search premises. In considering the form of a warrant Hume says amongst other things:

"A warrant to apprehend ought to be dated, and must be under the hand of the magistrate in whose name it runs: and if it be from a Justice of the Peace, it ought regularly to bear his style and quality, and the county for which, as well as the place where, it is given: All which things are more especially proper to be observed, if the warrant is a separate warrant, given de plano, without reference to any written application, which may serve to explain these particulars. It cannot, however, on any authority that I know of, be affirmed, that the warrant shall be void for the want of any of these circumstances, excepting only the subscription of the magistrate."

Hume then goes on to consider the matter of a general warrant including a general warrant to search. But it is now settled that warrants to search must be specific as to the purpose and limitations of the search and that an indefinite warrant is illegal (See Renton & Brown (6^th ed.) para 5-10). The passage from Hume appears in the footnotes in Alison vol. ii: pp, 122-3 and again at pp. 145 -147, both in reference to form of a warrant to apprehend and in relation to warrant to search, although in the latter case Alison states:

"The search warrant must be dated and signed and subscribed by the magistrate, and it should bear his designation, and that of the county for which he acts, and the cause for which it is granted: but the signature only is required to be in his handwriting."

However in Renton & Brown cit sup para 5-14, it is stated:

"A warrant should be dated and an undated warrant will be invalid, at least where there is a time-limit on its execution. Parole proof of the date of an undated warrant is incompetent."

6. The advocate depute also referred us to cases concerning statutory warrants, namely, HMA v. Cumming 1983 SCCR 15: Tudhope v. Senatti Holdings Ltd 1984 SCCR 251: Brown v. HMA 1998 SCCR 356 and Aziz v. HMA 1998 SCCR 736. He submitted that it could not be said that the warrant was undated since the month and year were given. It was not thereby ex facie invalid. In any event, the warrant in granting authority "as craved" referred back to a precisely dated petition and there was no time-limit which required to be certified by the sheriff, as would be the case with a statutory warrant of the nature considered in the cases cited to the sheriff. Accordingly the warrant not being ex facie valid, the sheriff erred in sustaining the objection stated to it. He had no power to review its grant (Allan v. Tant 1986 SCCR 175).
7. In reply, Miss Scott contended that a full and precise date is an essential requirement of a warrant granted at common law. In any event, if it was merely a matter of an irregularity which could be excused, it was for the Crown to offer a basis for so doing and none had been offered. It was to borne in mind that a warrant was the grant of lawful authority to carry out and execute something which otherwise would be unlawful. A requirement that a precise date should be entered in the warrant was the only safeguard against an illegal search, as it was important for the occupier of the premises to know when authority to search had been granted. It would, for instance, be important to know when precisely the warrant was granted to determine whether or not by the time of its execution a search under its authority had become oppressive. Miss Scott made general reference to the provisions of the European Convention on Human Rights regarding safeguards as to the execution of warrants. The court should take a strict view of the need for precision in the form of the warrant and the authority granted by it and should be slow to excuse any irregularity. Reference was made to the case of HMA v. Cumming. The sheriff had properly applied his mind to the issue and had reached a correct determination in holding the warrant to be invalid. In doing so he had also taken account of the question of excusing any irregularity on the face of the warrant.
8. We have come to be of the view that the submissions for the Crown are to be preferred. The warrant granted is a common law warrant and it was not contended otherwise by Miss Scott. Neither the right of the prosecutor to seek such a warrant nor the power of the sheriff to grant it is prescribed or restricted by any statutory provision concerning a time limit for its execution. The warrant did not require to be executed within any precise time-limit unlike the warrants which were under consideration in the cases of Bulloch and Welsh. These were the principal authorities on which the sheriff founded in reaching his decision. From the time of Hume to the present day it has been recognised that an essential requirement of a warrant is the signature of the sheriff or other judicial authority. In Allan v. Tant it was pointed out that a warrant is ex facie invalid as where it contains the wrong name or address or where it is not signed. In the case of statutory warrants, where the statute provides for execution within a stated time, a warrant is ex facie invalid if the sheriff, although appending his signature, has not certified the precise date from which the grant of his authority takes effect. But in the grant of a common law warrant the precision of date is not necessary. The sheriff is not being asked to grant authority which is limited by statute in extent of time. Rather he is being invited to grant his authority for a search which in the circumstances set out in the petition he is satisfied is in the interests of justice. In our opinion, the inclusion in the warrant of a date in the form in which it appears in the Crown production, is sufficient for the purposes of the validity of the warrant. In Welsh Lord Allanbridge referred to the decision in Bulloch as authority for the view that search warrants which "lack precise dates, or any date at all" are defective. In the present case it cannot be said that the warrant lacked any date at all. Nor can it be said that the date, in the sense of a precise date expressed as including day as well as month and year, is critical to the question of its validity. We do no more than express a doubt as to the correctness of the opinion of Lord Allanbridge if, in the passage we have quoted above, he is to be taken as holding as invalid all undated warrants rather than those statutory warrants where the authority for their execution is specifically limited in time. The distinction between "ought to be dated" and "must be under the hand of the magistrate" as to the elements required for common law warrants which appears in Hume, also appears to be recognised in the passage in Renton & Brown already cited and to be implicitly recognised in the passage from Sheriff Stoddart's book quoted by the sheriff. It is true that in the passages in Alison ii:123 and again at ii:146, the word "must" appears in relation to the date, as was pointed out in HMA v. Strachan 1990 SCCR 343, but both passages refer back to the passage in Hume already quoted, which extends "ought" to the requirement for a date. Be that as it may, in the present case we are of opinion that the sheriff erred in accepting the proposition advanced before him that the precise date of subscription was a basic formality essential to the validity of all warrants, whether at common law or statutory warrants. A date was given for the subscription. While it would be preferable that the full date be inserted when such a warrant is signed by the sheriff, nevertheless there being a date given in the warrant in this case, the warrant is not ex facie invalid. In these circumstances it is unnecessary to consider the submissions advanced in regard to excusing any irregularity, there being none on the face of the warrant.
9. For the above reasons we shall answer the question of law posed in the sheriff's Note in the negative. Accordingly we shall remit the case back to the sheriff to proceed as accords.