Scottish High Court of Justiciary Decisons

Donaldson v. Procurator Fiscal [2002] ScotHC 97 (26 July 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Kirkwood Lord Abernethy Sheriff Principal Bowen	Appeal No: 708/02 OPINION OF LORD KIRKWOOD in BILL OF SUSPENSION by DENISE LAURAIN DONALDSON or KNAUP Complainer; against PROCURATOR FISCAL, Peterhead Respondent: _______

 

 

Complainer: Wheatley, Solicitor Advocate; Wheatley & Co.

Respondent: I. Armstrong, Q.C. A.D.; Crown Agent

26 July 2002

1. This is a bill of suspension at the instance of Denise Laurain Donaldson or Knaup in which she seeks suspension of a warrant granted by the sheriff in Peterhead

on 6 June 2000 authorising the search of her dwellinghouse at 48 Prince Street, Peterhead in terms of section 23(3) of the Misuse of Drugs Act 1971.

2. On 3 May 2001 the complainer appeared on petition at Peterhead Sheriff Court charged with a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971. She made no plea or declaration, the case was continued for further examination and the complainer was released on bail. She was later served with an indictment charging her with three separate contraventions of section 5(2), and one contravention of section 4(3)(b), of the 1971 Act. In the bill it is stated that investigation of the case against her by the complainer's solicitors has indicated that much of the evidence is based on the results of a search of her premises at 48 Prince Street, Peterhead, which was carried out by officers of Grampian Police on 8 June 2000 on the authority of the search warrant granted on 6 June 2000.
3. The search warrant was granted in terms of section 23(3) of the 1971 Act. The relevant part of that subsection provides as follows:

"(3) If a...sheriff is satisfied by information on oath that there is reasonable ground for suspecting -

(a) that any controlled drugs are, in contravention of this Act...in the possession of a person on any premises...

he may grant a warrant".

4. The wording of that provision was reflected in the petition which the respondent presented to the sheriff when the search warrant was sought. The petition, which was dated 6 June 2000, opens with the following narrative:

"From information received by the Petitioner, there is reasonable ground for suspecting (a) that controlled drugs as specified in Schedule 2 to the Misuse of Drugs Act, 1971, as amended, are in contravention of said Act or Regulations made thereunder in the possession of a person on the premises at 48 Prince Street, Peterhead occupied by Denise Knaup or Donaldson..."

Sergeant McCruden of Grampian Police appeared before the sheriff and, having been examined on oath, deponed that what was contained in the petition was true. The sheriff, having considered the petition and relative oath, granted the search warrant.

5. In the bill it is stated that in the course of further enquiries into the evidence against the complainer, her solicitors obtained a statement from Sergeant McCruden who had been the deponent before the sheriff. It is alleged that on the basis of that statement it is clear that on 6 June 2000 the information which the police had was to the effect that the complainer was going to receive a consignment of controlled drugs in a couple of days time. The information set out in the petition was erroneous and had the correct information, namely that set out in Sergeant McCruden's statement, been before the sheriff then no warrant would have been granted. In the circumstances the search warrant had been improperly obtained and should be suspended.
6. We had before us the report from the sheriff who granted the warrant and also a statement which had apparently been obtained from him by the complainer's solicitors. It is clear that the sheriff cannot now remember the information which had been placed before him when this search warrant was sought, which is hardly surprising having regard to the fact that the search warrant was granted about two years ago. He tells us that it was not his practice to keep notes regarding applications for search warrants. He would listen to what the procurator fiscal had to say and then put the police officer on oath and ask him to confirm that what the procurator fiscal had told him was the truth and whether he wished to add anything. The sheriff tells us that he would have followed that procedure on this occasion, but he cannot now recall whether Sergeant McCruden had added anything to what he had been told by the procurator fiscal. As he granted the search warrant he assumed that he must have been satisfied with the information that had been provided to him.
7. We were also provided with two other documents. One is a Grampian Police Subject Report submitted by Sergeant McCruden to the procurator fiscal, containing a request for a drugs search warrant. The document is dated 6 June 2000 and states inter alia as follows:

"Information has been received at the Police Office, Peterhead to the effect that the afternamed is concerned in the wholesale supply of controlled drugs. She is due to receive a further consignment of drugs between now and the morning of 7 June 2000. The drugs suspected to be ecstasy, are to be delivered to her house at the address specified.

Denise Knaup or Donaldson, 48 Prince Street, Peterhead.

There is no criminal intelligence or record of previous convictions held in respect of the subject.

It is requested that a Drugs Search Warrant be issued for the above address.

Paul McCruden

Sergeant N8848."

8. The other document is a police statement of Sergeant McCruden stating inter alia that the information received by the police on 6 August was to the effect that the complainer was concerned in the wholesale supply of controlled drugs and that "she was due to receive a further consignment within the next couple of days". The drugs, suspected to be ecstasy, were to be delivered to her home address. It is, however, clear from that police statement that it was prepared by Sergeant McCruden after the search warrant had been executed on 8 June. There was also before us what bears to be a precognition of Sergeant McCruden which was broadly to the same effect as his police statement.
9. In moving the court to pass the bill and suspend the search warrant Mr Wheatley, on behalf of the complainer, made two submissions. The first submission was to the effect that as the sheriff was unable to give the court the information on the basis of which he had granted the warrant, there was no independent evidence of information which justified the warrant being granted. The court could not uphold the search warrant if the sheriff cannot justify his decision to grant it. In my opinion, this submission is without merit. I agree with the advocate depute that the proper approach to a situation such as this, where the warrant is ex facie valid, is that it should be assumed that it was granted according to law, and that the sheriff was acting in good faith, unless a valid challenge can be made. The fact that the sheriff is unable to recall, nearly two years after the event, the information which he had before him cannot justify suspension of the warrant.
10. Mr Wheatley's second, and alternative, submission was that the information which the police had was not that the complainer was in possession of controlled drugs at her address at the time the search warrant was sought and granted, but that she was to come into possession of such drugs there shortly thereafter. Sergeant McCruden's police statement had indicated that the complainer was to receive drugs within the next couple of days. While the petition stated, in accordance with the terms of section 23(3), that there was reasonable ground for suspecting that controlled drugs were then in the possession of the complainer at 48 Prince Street, that statement was not justified by the information which had been received by the police. A search warrant can only be granted if there is reasonable ground for suspecting present possession, not possession at some time in the future. In the circumstances, given the terms of section 23(3) of the 1971 Act, there was no legal authority for the granting of the warrant.
11. In reply, the advocate depute accepted that, in terms of section 23(3) of the Act, the sheriff had to be satisfied, before he was entitled to grant a search warrant, that there was reasonable ground for suspecting that controlled drugs were at that time in the possession of a person at the specified address. He submitted that the information which the police had on 6 June was set out in the Subject Report and in the circumstances it could reasonably be inferred that that was the information which had been placed before the sheriff by the procurator fiscal. That information was sufficient to comply with the requirements of section 23(3). The advocate depute founded particularly on the reference to a "further consignment" and submitted that it could thereby be inferred that the complainer, who was understood to be concerned at that time in the wholesale supply of controlled drugs, had already received one or more consignments of controlled drugs at her address. On the basis of the information which the police had, there was reasonable ground for suspecting that there were controlled drugs in the complainer's house on 6 June and the sheriff had been entitled to grant the search warrant.
12. Having regard to the statements in the bill, the first matter to be considered is the nature of the information which was before the sheriff when he granted the search warrant on 6 June. The sheriff, quite understandably, cannot now recall what information was given to him but we do have a copy of the Subject Report which Sergeant McCruden forwarded to the procurator fiscal on 6 June. That report sets out the information which had been received by the police and requested that a drugs search warrant be issued in relation to 48 Prince Street, Peterhead. In my opinion it can reasonably be inferred that it was the information in the Subject Report which was placed before the sheriff, rather than the information contained in Sergeant McCruden's police statement which was prepared after the search warrant had been executed and referred to the complainer being due to receive a further consignment "within the next couple of days". The question which then arises is whether the sheriff, in light of the information placed before him, was entitled to be satisfied that there was reasonable ground for suspecting that there were controlled drugs in the possession of the complainer at 48 Prince Street at the time the warrant was sought and granted at 4.40 pm on 6 June. What is required is reasonable ground for suspicion, not belief, and not a prima facie case. The challenge in the bill is based on the contention that on 6 June 2000 the information which the police had was that the complainer was going to receive a consignment of controlled drugs in a couple of days time, and that on that basis the warrant was improperly obtained. I accept that the power conferred by section 23(3) is not retrospective or prospective and that, if the only information before the sheriff was to the effect that the complainer was going to receive a consignment of drugs in a couple of days time, then the sheriff would not have been entitled to grant the search warrant. However, I am satisfied that that is not the information that was laid before him. The information which he had was to the effect (1) that the complainer was at that time concerned in the wholesale supply of controlled drugs, (2) that she was due to receive a further consignment of drugs "between now and the morning of 7 June" and (3) that the drugs were suspected to be ecstasy and were to be delivered to her house. The point is a short one but in my opinion the information before the sheriff, particularly to the effect that the complainer was at that time concerned in the supply of controlled drugs and that a further consignment of drugs was imminent, entitled the sheriff to be satisfied that there was reasonable ground for suspecting that, at the time he granted the search warrant, controlled drugs were in the possession of the complainer at 48 Prince Street, Peterhead.
13. On the whole matter I am satisfied that the warrant was not improperly obtained and I move your Lordships to refuse to pass the Bill.
Donaldson v. Procurator Fiscal [2002] ScotHC 97 (26 July 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Kirkwood Lord Abernethy Sheriff Principal Bowen	Appeal No: 708/02 OPINION OF SHERIFF PRINCIPAL BOWEN, Q.C. in BILL OF SUSPENSION by DENISE LAURAIN DONALDSON or KNAUP Appellant; against PROCURATOR FISCAL, Peterhead Respondent: _______

 

Appellant: Wheatley, Solicitor Advocate; Wheatley & Co.

Respondent: I. Armstrong, Q.C., A.D.; Crown Agent

26 July 2002

14. As your Lordship in the chair has indicated the advocate-depute quite properly accepted that the terms of section 23(3) of the 1971 Act require reasonable grounds for suspicion that controlled drugs are in the possession of a person on the premises specified at the time of granting a search warrant.
15. The test to determine whether the statutory requirement has been met must depend entirely on the circumstances of each case. In the present situation I agree that the terms of the Subject Report which was provided to the procurator fiscal on 6 June 2000 were such as to entitle the Crown to say that reasonable grounds for such suspicion existed when the sheriff granted the warrant on that date.
16. I am accordingly in full agreement with the opinion of your Lordship in the chair. The warrant was not improperly obtained and we should refuse to pass the Bill.