Scottish High Court of Justiciary Decisons

McFarlane v. Procurator Fiscal [2002] ScotHC 8 (15 February 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Coulsfield Lord Wheatley Lord Carloway	Appeal No: 1154/00 OPINION OF THE COURT delivered by LORD COULSFIELD in BILL OF SUSPENSION by ROBERT ANDREW McFALL McFARLANE Appellant; against PROCURATOR FISCAL, Paisley Respondent: _______

 

 

Appellant: Miller; Stirling & Mair, Paisley

Respondent: M. Stewart, A.D.; Crown Agent

15 February 2002

1. The complainer in the Bill alleges that he has been charged at the instance of the respondent with offences under the Misuse of Drugs Act 1971, the trial having been continued to a date not yet fixed. He further alleges that on 1 December 1998, the respondent craved and was granted a warrant to search the complainer's flat under the Misuse of Drugs Act 1971. The warrant was granted by a temporary sheriff and the complainer maintains that the grant of the warrant was unlawful and illegal in consequence. The report by the temporary sheriff simply narrates that on 1 December 1998 a constable appeared before him and craved a search warrant, that he placed the constable on oath, that he checked the terms of the petition and that on receiving confirmation that the facts were as stated granted the warrant. The petition contains an averment that from credible information received by the petitioner there is reasonable ground for suspecting that controlled drugs are in the possession of a person at the complainer's flat.
2. The argument for the complainer was presented briefly and without direct reference to the European Convention on Human Rights. Counsel for the complainer referred to Birse v. H.M. Advocate 2000 S.C.C.R. 505 and submitted that it had been clearly held that the warrant must be granted by an "independent judicial figure". He further referred to Miller v. Dickson 2001 SCCR 741 and in particular to the speech of Lord Hope at paragraph 67 and submitted that if a temporary sheriff could not conduct a trial he was equally disqualified from any part in the determination of a criminal charge. In this case, of course, the warrant had been granted before 1 December 1998 but in this case what was founded on was the basic principle of Scots law which required that there should be an independent and impartial judicial figure, a qualification which the temporary sheriff could not be said to satisfy.
3. The advocate depute submitted that the decision in Birse did not require that the test of independence and impartiality laid down in Starrs v. Chalmers 1999 SCCR 1052 should be imported into the question of the qualification of the figure who is to grant a warrant. The Convention itself did not apply in view of the date on which the warrant was granted and the sheriff had been properly appointed in terms of the Sheriff Courts Act 1971.
4. In Birse v. H.M. Advocate supra the Lord Justice General, at page 511, quotes from the opinion of Lord Justice General Clyde in Hay v. H.M. Advocate 1968 J.C. 40. Lord Justice General Clyde said:

"Although the accused is not present nor legally represented at the hearing where the magistrate grants the warrant to examine or to search, the interposition of an independent judicial officer affords the basis for a fair reconciliation of the interests of the public in the suppression of crime and of the individual who is entitled not to have the liberty of his person or his premises unduly jeopardised...The hearing before the magistrate is by no means a formality, and he must be satisfied that the circumstances justify the taking of this unusual course."

5. The discussion in the case of Birse v. H.M. Advocate itself emphasises that the role of the magistrate in considering whether to grant a warrant is properly a judicial one and by no means a formality. In these circumstances, it is difficult to see any ground on which a distinction can be drawn between the role of a judge or magistrate in considering whether to grant a warrant and his role in deciding whether or not to convict a person charged with an offence. In both cases, it is required that the judge or magistrate should be independent. The essence of the finding in Starrs v. Chalmers is that, although temporary sheriffs might in themselves individually be subjectively impartial and independent, the terms of their appointments were such that the necessary guarantees of independence under the Convention could not be provided. Accordingly, if this were a case under the Convention, it would be difficult to make any distinction between the actions of a temporary sheriff in relation to the granting of a warrant and any other actions in the course of a prosecution.
6. This, however, is not a case under the Convention. What is suggested is, in effect, that since the temporary sheriff could not be regarded as impartial and independent for the purposes of the Convention, he could not be regarded as impartial and independent for the purposes of the common law and on that basis could not satisfy the test in Birse supra. The only authority to which we were referred on this point was the commentary on Miller v. Dickson (2001 S.C.C.R. at p. 773) and while that commentary is entitled to respect, it is not a binding authority. In the argument before us, there was no discussion of the Scottish common law prior to the importation of the Convention. There was no analysis either of the decision in Starrs v. Chalmers or of the reasoning in Miller v. Dickson itself. There was no discussion, in particular, of the role of the "objective guarantees" requirements established in the Convention jurisprudence as compared with any rules which might be established in the common law of Scotland. In these circumstances, it seems to us that it would be taking a large step, and one unjustified by either argument or binding authority presented to us, to hold that the temporary sheriff in this case was disqualified at common law from acting in the grant of a warrant when nothing has been put forward to suggest that the sheriff himself in any way lacked impartiality. In these circumstances, the proper view seems to us to be that the complainer in this Bill has failed to establish that the warrant was not lawfully granted and we shall refuse the Bill.