Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 13

HCA/2014-005145-XJ

Lord Brodie

Lord Drummond Young

Sheriff Principal Stephen QC

OPINION OF THE COURT

delivered by LORD BRODIE

in

BILL OF SUSPENSION

by

MICHAEL STEWART

Complainer;

against

THE PROCURATOR FISCAL, GLASGOW

Respondent:

Complainer:  C M Mitchell;  Capital Defence Lawyers, Edinburgh for Fitzpatrick & Co, Glasgow

Respondent:  Erroch, AD;  Crown Agent

17 February 2015

[1]        In terms of section 23(3) of the Misuse of Drugs Act 1971 if a justice of the peace, a magistrate or a sheriff, is satisfied by information on oath that there are reasonable grounds for suspecting that any controlled drugs are in the possession of a person on any premises, he may grant a warrant authorising any constable, inter alia, to search the premises and any persons found therein and to seize any controlled drugs found. 

[2]        The complainer in this bill of suspension is Michael Stewart.   On 4 April 2012, on an application having been made to him, a justice of the peace granted a warrant in terms of section 23(3) of the 1971 Act to search the premises occupied by the complainer at 5 Daniel McLaughlin Place, Kirkintilloch.   The complainer has now been indicted in the High Court along with six co-accused charged with contraventions of section 4(3)(b) of the 1971 Act.   The complainer understands that the Crown intends to lead evidence at trial as to what may have been found during the search of the premises at 5 Daniel McLaughlin Place under the authority conferred by the warrant dated 4 April 2012.   The complainer wishes to suspend the warrant by reason of it having been granted in circumstances which were wrongous, unjust and incompatible with the complainer’s human rights with the object of rendering any evidence as to what may have been found during the search inadmissible. 

[3]        The Lord Advocate has lodged answers to the bill of suspension.   No point is taken on competency, either generally or in respect of the proposal in the bill that the matter should be remitted to an evidential hearing presided over by either a sheriff or a single judge “to establish whether the information provided to the JP was correct, and to provide an assessment to the court on the behaviour of the police”.   We would see that position as being correct;  where a warrant has been granted by a justice of the peace in exercise of power conferred, for example, by section 23 of the 1971 Act, and it is proposed to lead evidence about what may have been seized in execution of that warrant in a forthcoming High Court trial, then application can be made to a quorum of this court by way of bill craving suspension of the warrant on the basis of illegality:  see eg Birse v MacNeill 2000 JC 503.   On such an application the powers of this court include power to remit to a single judge to determine any issues of disputed fact;  see eg Evans and Kerr v PF Glasgow, Appeals no XJ767/12 and XJ811/12.   While the consequent procedure can be seen as cumbersome:  see Stuart v Crowe 1992 SCCR 181, Herd v HM Advocate 1999 SCCR 315 and Sir Gerald Gordon’s associated commentaries, the decision in Allan v Tant 1986 JC 62 makes it clear that where the contention is that an ex facie valid warrant should not have been granted, it is not open, at least to a sheriff, to “go behind the warrant”.   The warrant has to be suspended, or reduced or set aside and that is something that only the High Court can do.   It was not argued to us that the power of the High Court could be exercised by a single judge at, for example, a preliminary hearing in terms of section 72 of the Criminal Procedure (Scotland) Act 1995.   It is presumably because of a consensus on that point that, in the knowledge of the complainer’s intention to proceed by way of bill of suspension, a continued preliminary hearing in the case was discharged and 24 February 2015 fixed as a new diet.

[4]        Before turning to the averments in the bill it is convenient to set out the terms of the report by the justice of the peace on the circumstances in which he granted the warrant.

“This Report concerns a Bill of Suspension by Michael Stewart in respect of a Warrant granted by me on 4 April 2012.

On 4 April 2012, Detective Constable Elizabeth Bair, Strathclyde Police, stationed at Paisley Police Office and under secondment to SCDEA, called at my home at [an address in Glasgow] and indicated that she wished to apply for a Search Warrant under the Misuse of Drugs Act 1971.   The said officer was duly placed on Oath and then informed me that she had reasonable grounds for suspecting that a quantity of controlled drugs were to be found in the possession of a person at premises occupied by Michael Stewart, at 5 Daniel McLaughlin Place, Kirkintilloch.

When placed on oath, DC Blair informed me that as a result of on-going police surveillance and current intelligence, categorized as B2, being received that (a) Michael Stewart, Gary Grant and Barry Letham were frequently involved in the use and distribution of controlled drugs;  (b) on 3 April 2012 Stewart and Grant had supplied a source in Airdrie;  (c) Letham intended to have a criminal meeting with a Lee Wood in order to obtain cocaine and money from the said Lee Wood;  (d) police witnesses had observed Letham attend outside 1 Daniel McLaughlin Place, Kirkintilloch, the home of Grant and meet there with Wood;  (e) Letham and Wood thereafter entered 1 Daniel McLaughlin Place with a weighted carrier bag;  (f) within a space of minutes, Grant exited 1 Daniel McLaughlin Place whilst carrying a small child and an unidentified object and walked to 5 Daniel McLaughlin Place, the home of Stewart;  and (g) Grant thereafter left 5 Daniel McLaughlin Place with the child but without the aforementioned object.

Having examined the Informant on Oath and having considered her Application and being satisfied that there was reasonable ground for suspicion, I granted the Warrant”.

[5]        The basis of the challenge to the warrant is set out in Statements 3 and 4 in the bill.  These statements are in the following terms:

“3.       That this warrant was sought and granted on the basis of information provided to the Justice which it is contended did not provide a comprehensive position to the JP, such that a proper consideration of all the information could inform the JP’s decision.   Moreover it is contended that (at least as presently disclosed) some of the information about disclosure is not borne out by the information having been given to Agents.

The Justice appears from the Report not to have been told that, at the time the warrant was sought, the Accused had been searched with negative result shortly earlier, nor that his car had been searched with the same negative result, nor that his girlfriend had also been searched and nothing of evidential value found.   Moreover, at the time of the present warrant being sought Barry Letham had also been subject to personal search with negative result.   The Accused, at the time the warrant was sought was arguably being illegally detained.

Of the matters the Justice was provided with, as set out in the Justice report of 16 October 2014 there are the following criticisms.   The criticisms follows the (a)-(g) reasons as reported by the JP:-

a)         The ‘B2’ information provided (information apparently which is ‘mostly reliable’ and ‘known personally to source but not to Officer’ is inspecific in that it does not identify how current this information is, and why there is a belief that the Accused has drugs in his home at that time.

b)         There has been no disclosure to the defence of any surveillance log to support assertion ‘b’.

c)         There is nothing in this information which relates to the Accused or his property or gives an indication of when this purported meeting was due to take place.

d)         The police had observed this, but again, this provides no reason as to why a warrant was required at that time for the Accused’s house.

e)         The ‘weighted carrier bag’ assertion is not supported by the surveillance logs, and the Crown having precognosed the Police some considerable time later, the statements produced still do not go so far as to support this proposition.

f)          The ‘unidentified object’ assertion is not supported by the surveillance logs, and the Crown having precognosed the Police some considerable time later, the statements produced still do not go so far as to fully support this proposition.   Moreover, it cannot be said that the witness walked to the home of Stewart.   The best that can be said is that he entered a block of flats, one of which flats belonged to the Accused.

g)         Again, the best that can be said is the witness left a block of flats one of which flats belonged to the Accused.

In the circumstances the decision to grant the warrant was based on an understanding of the evidence that was not complete.   Moreover, it is now contended that the factual nexus of some of the information put before the JP is subject to criticism and/or doubt.

4.         That in the circumstances a Sheriff/Judge ought to preside over an evidential hearing, to establish whether the information provided to the JP was correct, and to provide an assessment to the Court on the behaviour of the police (particularly with reference to the fact the surveillance logs do not seem to support the assertions made about meetings and the carrying of bags etc.).   That after such an assessment is made and a report is provided to this court, that court can have the opportunity to consider whether the grant of warrant in these circumstances should stand”.

[6]        After an initial false start, the advocate depute confirmed that the Crown position was that the bill should be refused without further procedure.  

[7]        The first question to consider is whether the complainer’s averments set out a relevant basis on which this court might be persuaded to suspend the search warrant granted by the justice of the peace on 4 April 2012.   In our opinion they do not.   It is to be borne in mind that what this court is being asked to exercise is not an appellate jurisdiction but rather a supervisory jurisdiction, the object of which is to determine whether the party with the relevant jurisdiction, here the justice of the peace, has exercised the jurisdiction conferred on him (and him alone) by statute in a lawful manner.   Thus, in order to suspend the warrant, this court would have to be satisfied that the justice of the peace was not entitled to form the requisite suspicion on the basis of the information presented to him on oath by the police officer.   There may of course be cases where it is said that police officers acted in bad faith and presented information to a justice of the peace which they knew to be false or clearly unreliable.   This is not such a case.  True, the complainer avers that police may have been guilty of over-interpretation of the information available to them and may be unable to refer everything to an entry in a surveillance log, but that is something very different from bad faith.

[8]        It is to be stressed that the information available to the police did not depend exclusively on surveillance but included what was described as B2 intelligence.   Here the justice of the peace put the police officer on oath and obtained from her information which satisfied him that there was a basis for the suspicion necessary before he could grant a warrant in terms of section 23(3) of the 1971 Act.   That was the proper procedure for him to follow.   In considering DC Blair’s application and in granting the warrant the justice of the peace was carrying out a judicial function.   He understood that.   An application for a warrant should never be regarded as no more than a formality.   The requirement that a magistrate, justice of the peace or sheriff be satisfied as to the requisite suspicion is an important safeguard against arbitrary search:  Birse v MacNeill supra at para [10].   However, what is required is reasonable suspicion, not full proof.   Of necessity, an application for a warrant to authorise or search must accommodate the reasonable operational requirements of law enforcement agencies.   The bill of suspension sets out a number of criticisms of the quality of the information provided by the police and it questions (but does not positively deny) the accuracy of some of that information, with a view to suggesting that the matter should be remitted to an evidential hearing in order that a single judge or sheriff can hear the relevant evidence and then report back (although on precisely what is not clear).   We do not exclude the possibility of such a procedure, unwieldy as it undoubtedly is, being followed in an appropriate case.   This, however, is not an appropriate case.   In our opinion, the complainer’s averments here are insufficient to make a case that the justice of the peace was not entitled to grant the warrant that he did.   It is nothing to the point that another justice of the peace or a judge or sheriff faced with the same information might not have formed the necessary suspicion.   It is only if it can be said that no reasonable justice of the peace would have granted a warrant in the circumstances which applied on 4 April 2012 that this court would be entitled to suspend the warrant.

[9]        As it appeared to us, Ms Mitchell, who appeared for the complainer, accepted that the bill did no more than present rather diffident or tentative criticisms of the quality of the information presented to the justice of the peace.   That no criticism whatsoever is made of the justice would seem to be made explicit by the averments:

“In the circumstances, the decision to grant the warrant was based on an understanding of the evidence that was not complete.   Moreover, it is now contended that the factual nexus of some of the information put before the JP is subject to criticism and/or doubt”.

Just what is meant by “nexus” in this context may not be clear, but it is not said that the justice was not entitled to decide as he did on the basis of the information put before him.   The question for him was whether what was spoken to by DC Blair, in her deposition on oath, satisfied him that there were reasonable grounds for suspecting that controlled drugs were in the possession of a person in the premises to which the application related.   He was entitled to proceed on hearsay information from the constable:  cf Birse v MacNeill supra and Renton & Brown Criminal Procedure at 5-05, and that remains so even if it later turns out to have been wrong:  Lord Hope of Craighead in O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 at 298, followed in Coalter and Ferns v HM Advocate [2013] HCJAC 115.

[10]      While it might be different if the case were that the justice had been deliberately deceived by the police officer who deponed before him or, possibly, by other officers who had provided the deponing officer with information, that this bill of suspension contains no averments to the effect that no justice could reasonably have granted a warrant on the basis of the information provided to this justice, means that it is irrelevant and therefore cannot be passed.

[11]      We attempted, but failed, to elicit from Ms Mitchell what exactly she maintained had to be established by the complainer in order that the warrant should be suspended, reduced or otherwise set aside.   She agreed with the suggestion by the court that if behaviour constituting bad faith on the part of the police were established, that would justify suspension of a warrant that had been granted by reason of that behaviour, but beyond that Ms Mitchell had no sharp criterion or bright line to offer.   Her approach was a different one.   Here, she did not go the distance of averring bad faith; she could not do so.   However, as counsel, she explained that her role was to be satisfied that any warrant on the faith of which evidence prejudicial to her client had been seized was lawful.   Where, as here, a warrant had been granted on the application of a police officer and without prior notice to the complainer, she had very little information as to the basis upon which the justice granted the warrant.   This was in fact the second bill of suspension that had been presented by the complainer in this case.   It was only on presentation of the first bill that the complainer and his representatives were provided with the justice’s report and therefore placed in a position to advance criticisms of the evidential basis upon which the warrant had been granted.   She had averred all that she could.   In order for her to say more she required to explore matters at an evidential hearing.   Thus, the purpose of the remit was essentially an inquiry at large in order to arrive at, as it is put in the bill,

“an assessment ... on the behaviour of the police (particularly with reference to the fact [that] the surveillance logs do not seem to support to support the assertions made about meetings and the carrying of bags etc) ...[so that] the court can have the opportunity to consider whether the grant of a warrant in these circumstances should stand.”

[12]      In our opinion, our criminal procedure does not, and indeed should not, provide for such a second-guessing of the decision by a justice of the peace, magistrate or sheriff to grant a search warrant, in exercise of the power conferred by section 23(3) of the 1971 Act.   It is different when a police officer at his own hand, purportedly in terms of the power conferred on a constable with the requisite suspicion by section 23(2) of the Act, has searched the person of an accused person or his vehicle.   Then, the admissibility of any evidence recovered during such a search can be objected to and the issues as to whether the constable did indeed have both the requisite suspicion and whether objectively he had reasonable grounds for forming it, can be explored, if necessary after the leading of evidence at an evidential hearing in terms of sections 72(6)(b) and 79(2)( b)(iv) of the 1995 Act.   A reason for the difference is that in the case of a section 23(3) warrant, authority for the search only arises through the intervention of “an independent judicial figure who actually considers the circumstances and decides whether to grant the warrant”:  Birse v MacNeill supra at para [10].   The statutory scheme is to confer the jurisdiction to grant the warrant to the justice of the peace and with it the jurisdiction to consider whether the statutory criterion for granting the warrant has been met.   That criterion is no higher than the justice’s satisfaction that there is reasonable ground for suspecting and, consistent with the frequent need for expedition, hearsay (and indeed hearsay of hearsay) may be enough to supply the justice with the necessary information.

[13]      This is not to say that a section 23 (3) warrant cannot be suspended by this court.  If the justice’s decision has proceeded on the basis of no or very clearly insufficient information, that would permit this court to suspend a warrant.   Similarly, if the justice’s decision was vitiated by the police knowingly having supplied him with erroneous information, this court could intervene.   There may be other circumstances in which a relevant case could be pled.   However, as is usually the case with litigation, at least as conducted in Scotland, if a party has a case he must plead it and do so with reasonable specification.   Only then, if the averments are relevant and it is necessary to do so, will he be allowed to go to proof.   In other words his pleadings must state in terms why he is entitled to the remedy he seeks before he is allowed to lead evidence in support of his case.   It is not good enough to say that he does not know whether he has a case or not but that he might, and that therefore the court should help him to find out what that case may be.   That is often described as “fishing”.   At best that is what the complainer is seeking to do here, that is to embark on a hearing with a view to acquiring information which might allow him to plead a relevant basis for setting aside the warrant granted on 4 April 2012.   We say “at best” because at least some of what appears in the bill and some of what was said by Ms Mitchell seemed to suggest that it might be open to this court to evaluate, in the light of all available information, the quality and completeness of what was put before the justice, with a view to revisiting the decision to grant a warrant.   This court has no power to do that.

[14]      For these reasons we refuse to pass the bill of suspension.