Complainer: Gilbride; John Pryde & Co (for Fleming & Reid)

Respondent: G Allan, QC; Advocate depute; Crown Agent

24 August 2010

Challenge to the validity of a search warrant

[1] On 7 August 2009, a justice of the peace in Glasgow granted a search warrant in terms of section 23(3) of the Misuse of Drugs Act 1971. The application for the warrant was contained in a pro forma single sheet document with typed text and blank boxes requiring completion. At the foot of the document was the warrant itself, in the following terms:

"Having considered the foregoing Application and relative oath or solemn affirmation, grant Warrant as craved" [followed by the signature of the justice, in box 18].

The information inserted in manuscript in the blank boxes in compliance with the guidance on the reverse of the single sheet is noted below in italics:

Boxes 1 to 3 (details of the police officer seeking the warrant): Dean Waddell, Easterhouse Police Office, Strathclyde.

Boxes 4 and 5 (full name of the occupant and the full address or description of the premises to be searched): James Paterson, Flat 0/1 11 Anwoth Street.

Box 6 (the applicant's police force): Strathclyde.

Boxes 7 to 9 (the signature of the applicant; the city, town or place where the applicant was examined; the date when the applicant was examined on oath): Dean Waddell, Glasgow, 7 August 2009.

Boxes 10 and 11 (full name of the justice, and area for which JP commission held): Susan Carol Brown, Glasgow.

Boxes 12 to 17 (signature of the applicant; signature of the justice after the applicant's signature in box 12; city, town or place where the warrant was signed; date when the warrant was signed; full name of the justice in capitals; area for which JP commission held): Dean Waddell; S Brown; Glasgow; 7 August 2009; Susan Carol Brown; Glasgow.

Box 18 (signature of the justice only if satisfied that the information justifies the grant of a warrant): S Brown.

[2] The complainer presented a bill seeking suspension of the search warrant. The bill narrates that, following upon the grant of the warrant, "police officers conducted a search of premises in Glasgow under the purported authority of the search warrant". Nevertheless the validity of the search warrant is challenged in that "properly understood, the premises to be searched were not identified adequately so as to allow any occupier of the premises which were searched to satisfy [himself] that the justice had granted authority to conduct a search of those premises".

[3] Mr Gilbride, on behalf of the complainer, submitted that the only identification of the premises to be searched given in box 5 was "Flat 0/1 11 Anwoth Street". There was no reference to a town or city. The three fundamental elements for a valid search warrant were the date on which the warrant was granted, the justice's signature, and an adequate description of the premises to be searched. The latter had to be specified so that the justice could be satisfied that he or she had jurisdiction, and so that anyone looking at the search warrant knew what premises were to be searched and whether the justice had jurisdiction over those premises. The lack of specification of town or city was fatal. The justice's report to the court did not give any clearer indication whether the address in box 5 was within her jurisdiction. Counsel referred to HM Advocate v Welsh 1987 SCCR 647; HM Advocate v Cumming 1983 SCCR 15; and Bell v HM Advocate 1988 JC 69. The warrant was accordingly invalid and should be suspended.

[4] The Advocate depute submitted that sufficient specification of the address had been given in the application, namely the flat number, the building number, the street, and the name of the occupier. All of those entries were contained in a document which fell to be construed as a whole, and which included several references to Glasgow and to Strathclyde. For example, the applicant was a constable of Strathclyde police stationed at Easterhouse police office; authority to search was given to "any constable of Strathclyde police"; box 8 (city, town or place where the applicant was examined) contained the word "Glasgow", as did boxes 11 and 17 (area for which JP commission held) and box 14 (city, town or place where the warrant was signed). The name of the street was an unusual one, and researches with the Royal Mail indicated that there was only one Anwoth Street in Britain, namely that situated in Tollcross, Glasgow. The warrant was accordingly valid, and the bill should be refused. Reference was made to Bell v HM Advocate, and Herd v Vannet 1999 SLT 927.

Discussion

[5] We accept that the date of the granting of the warrant, the signature of the justice, and an adequate description of the premises to be searched, are fundamental constituents of a valid search warrant. Without the date, it would be impossible to ascertain from an examination of the document whether it was valid at the time of the search, a fortiori in the context of drugs search warrants granted under section 23(3) of the Misuse of Drugs Act 1971, which are valid for one month only: cf Bulloch v HM Advocate 1980 SLT (Notes) 5; HM Advocate v Welsh 1987 SCCR 647. Likewise the insertion of the justice's signature is crucial. Without that signature, an examination of the document could not satisfy the occupier that authority to search had indeed been granted: cf HM Advocate v Bell 1984 SCCR 430.

[6] In relation to the question whether an adequate address or description of the premises to be searched has been given, there may be more scope for variation. Each case must turn on its facts. Some addresses or descriptions may amount to sufficient specification in the circumstances, and others may not. The proper test to be applied was set out by Lord Justice General Emslie in Bell v HM Advocate 1988 JC 69 at page 73:

"The test must be whether on examination of the warrant contained on the single sheet of paper the occupier of premises to whom it is shown will be able to satisfy himself that the constable has authority to search those premises. In other words, does the warrant clearly identify the premises which the constable has power to search?"

[7] Turning to the relevant document in the present case, it is our opinion that, notwithstanding the absence of the word "Glasgow" in box 5, the above-noted test has been satisfied. The document describes the premises for which a warrant is applied as flat 0/1 at number 11 Anwoth Street (an uncommon name) occupied by James Paterson. That description falls to be considered against the background of various references in the document to Glasgow and to Strathclyde. Thus it is our opinion that, on the basis of the information placed before her on 7 August 2009, the justice was entitled to understand that she was being asked to grant a search warrant for premises in Glasgow, and to proceed on the basis that she could competently grant such a warrant in terms of section 23 of the Misuse of Drugs Act 1971. It is also our opinion that, on the date when the search warrant was enforced, any occupier of the premises at flat 0/1 11 Anwoth Street, Glasgow, would have been able to satisfy himself on a reading of the document that the police had authority to search those premises.

[8] Further, as already noted, statement of fact 2 in the bill of suspension records that:

" ... subsequently [i.e. after the grant of the warrant] police officers conducted a search of premises in Glasgow under the purported authority of the search warrant."

It was not suggested, either in the bill itself or during the course of debate, that the police officers who enforced the search warrant experienced any difficulty in locating flat 0/1, 11 Anwoth Street, Glasgow, or in satisfying the occupier of those premises of their authority to carry out a search of those premises. Thus the observations of Lord Prosser in Herd v Vannet 1999 SLT 927, at page 929B and G-H, are apposite in the present case:

" ... [the test defined by Lord Emslie is] a practical and indeed functional one ... 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 [ultimately argued in court] with the police ..."

Decision

[9] In all the circumstances we are satisfied that in this particular case the description of the premises to be searched was sufficient, and that the search warrant was valid and effective when it was enforced. Accordingly we refuse to pass the bill.