Scottish High Court of Justiciary Decisons
You are here:
BAILII >>
Databases >>
Scottish High Court of Justiciary Decisons >>
BILL OF SUSPENSION BY BRIAN DOCHERTY AGAINST HER MAJESTY?S ADVOCATE [2021] ScotHC HCJAC_45 (19 October 2021)
URL: http://www.bailii.org/scot/cases/ScotHC/2021/2021_HCJAC_45.html
Cite as:
2022 JC 51,
2021 GWD 35-459,
[2021] ScotHC HCJAC_45,
2022 SLT 5,
2021 SCCR 309,
[2021] HCJAC 45
[
New search]
[
Printable PDF version]
[
Help]
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2021] HCJAC 45
HCA/2021/5/XJ
Lord Justice General
Lord Pentland
Lord Matthews
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
BILL OF SUSPENSION
by
BRIAN DOCHERTY
Complainer
against
HER MAJESTY'S ADVOCATE
Respondent
Complainer: A Ogg (sol adv); Paterson Bell (for Tod & Mitchell, Paisley)
Respondent: A Prentice QC (sol adv) AD; the Crown Agent
19 October 2021
Procedure
[1]
On 29 November 2020 Mr Docherty was charged by the police with assault to severe
injury. He was released on an undertaking (Criminal Justice (Scotland) Act 2016, s 25) to
attend Dunoon sheriff court on 10 December. He did so, only to be told that his undertaking
had been "cancelled" and his case would not call on that day.
2
[2]
On 22 July 2021, the procurator fiscal sought, and was granted, a petition warrant
from the sheriff at Dunoon authorising, inter alia, Mr Docherty's arrest on the charge. The
sheriff was not advised of the prior procedure. He signed the petition warrant. On
Saturday, 7 August, Mr Docherty was arrested and detained at a police office. On Monday,
9 August, he appeared at Greenock sheriff court. He was committed for further examination
and released on bail. He has not yet been indicted.
[3]
The Bill seeks suspension of the petition warrant on the basis that it was oppressive
for the PF to seek a warrant for the petitioner's arrest without telling the sheriff about the
prior procedure. If that had been done, it is said that the sheriff would have granted the
warrant only on the condition that Mr Docherty would initially be invited to attend court
voluntarily. In his report, the sheriff refutes this. He would not have anticipated being told
why a warrant was necessary. Solemn procedure could only be commenced by petition
warrant. There was no statutory basis for attaching a condition. Even if he had been told of
the previous procedure, that would not have prompted him to make further enquiries or to
refuse to grant the warrant.
Submissions
[4]
It was submitted on Mr Docherty's behalf that, if an accused person was to be
deprived of his liberty, the Crown required to make "full disclosure" of all material
considerations, including the previous procedure. Although warrants were often granted
on the basis of what was said on their face (Hume: Commentaries ii 77), they could be refused
if no explanation for their necessity was provided (Renton & Brown: Criminal Procedure
(6th ed) para 503), the information given to the sheriff was misleading (McDonagh v Pattison
3
2007 SCCR 482) or the circumstances amounted to oppression (CH v Donnelly 2013 SCCR
160).
[5]
Although not referred to in the Bill, the submissions added that, while Article 6 of
the European Convention on Human Rights did not apply to the administrative act of
granting a warrant, Article 5 did. It provided that the deprivation of a person's liberty had
to be in accordance with a procedure prescribed by law. There was no procedure prescribed
for the consideration of petition warrants. There was no method whereby the sheriff could
be satisfied that there was a reasonable suspicion that Mr Docherty had committed the
offence alleged (Fox v United Kingdom (1990) 13 EHRR 157 at para 32). This was in contrast
to the situation in which a person was brought to court and remanded in custody; prior to
which a custody statement was served. There was no basis for concluding that Mr Docherty
would not attend court voluntarily when requested to do so. In a further departure from the
ground in the Bill, it was said that the sheriff's conduct, in the absence of sufficient
information, was also oppressive.
[6]
The Advocate depute replied that the court should only entertain the point raised in
the Bill and not one that encompassed Article 5. The petition had contained all the
information that was required in respect of both the accused and the offence. There was no
basis upon which the sheriff could have refused to grant the warrant or granted it subject to
any condition. A petition warrant under section 34 of the 1995 Act was not sought because
of any concern about non-attendance, but as the only competent means of commencing
solemn proceedings short of serving an indictment. Information about whether Mr
Docherty had previously been released on an undertaking was irrelevant. CH v Donnelly
and McDonagh v Pattison were both distinguishable on their facts and because they involved
summary proceedings, which could be initiated by postal citation. A warrant would only be
4
granted in such proceedings if the sheriff considered it expedient to do so (1995 Act,
s 139(1)(b)).
Decision
[7]
As in Lin v HM Advocate 2014 SCCR 109 (LJC (Carloway) at para [16]) it is not, in the
context of this Bill, necessary to indulge in an essay on the history and origins of pre-
committal procedure. It is nevertheless important to recognise the limited function of a
petition warrant within that procedure. The function of the petition warrant is simply to
obtain judicial authority to bring an accused before the court on the charges libelled by the
procurator fiscal. It is not intended to be an authorisation to deprive the accused of his
liberty for any significant period. Historically, if the accused were arrested on the warrant,
he would be brought before the sheriff "with all convenient speed" (Alison: Practice 129
(para 9)) or "with the least possible delay" (Renton & Brown: Criminal Procedure (1st ed) 37
(para 7)). The arresting officer required to "carry him as quickly as he can before a
magistrate", although he might have to detain him overnight because of the lateness of the
hour. In days of yore an examination might have taken place on a Sunday (Renton & Brown
ibid).
[8]
Because the petition warrant had such a limited purpose, there was no requirement
on the part of the sheriff, at the stage of presenting the warrant, to do other than ensure that
the warrant was in proper form; ie that it sufficiently described: the informer (the PF); the
accused; and the charge. The sheriff's function at the stage of granting the warrant is only to
check its legality. The time for examining the information and deciding whether the accused
should be committed and granted bail, would only arise when the accused appeared before
the sheriff. That remains the position. The sheriff and the accused are provided with a
5
custody statement for this purpose by the PF containing a summary of the evidence against
the accused.
[9]
A petition warrant has other important purposes. It marks the start of a prosecution,
which has consequences in relation to time bar, since the accused must be brought to trial
within 12 months of his first appearance (1995 Act, s 65(1)(b)). It enables the procurator
fiscal to instruct the search of the accused and his address. It permits the citation of
witnesses for precognition and requires witnesses to produce any items relevant to a
potential prosecution. Since the appearance on petition commences the prosecution, the
accused will enjoy the important rights safeguarded by Article 6 thereafter.
[10]
There is, of course, no requirement that an accused be arrested on a petition warrant
before he appears in court. He may attend court voluntarily, by arrangement, and be given
a copy of the petition at that stage or earlier. The sheriff still requires to sign the warrant at
the time of the appearance, even if the accused is present. That is frequently done. The
warrant on the petition is needed to commence the proceedings.
[11]
When a sheriff is presented with a petition in advance of any appearance, he or she
will almost always grant the warrant; it being sufficient that the application is made by the
public prosecutor, who is under an obligation not to seek a warrant in the absence of some
evidential basis for doing so. The sheriff does not enquire into whether the arrest element
should be executed; that being a matter for the judgement of the procurator fiscal. The
sheriff, and in many cases the PF, will not know, at the stage of granting the warrant,
whether that will be needed. The fact of an earlier appearance on an undertaking is not
determinative of that issue. The warrant specifically states that the accused should be
detained only "if necessary". The sheriff is entitled to proceed on the footing that the PF, as
the public prosecutor, will exercise the powers granted by the warrant in a responsible
6
manner. The situation would be different if a sheriff was misled into granting a warrant for
arrest in a summary case in which section 139(1)(b) of the 1995 Act comes into play
(McDonagh v Pattison 2007 SCCR 482). This empowers the sheriff to grant warrant for arrest
where it appears expedient so to do.
[12]
The court has considered CH v Donnelly 2013 SCCR 160. It is clear from the material
provided to the court that CH concerned a petition warrant, although the court appears to
have proceeded on the basis that summary proceedings were in contemplation (see
para [5]). Whether that is so or not, CH involved circumstances which potentially barred
any prosecution and a request by the PF for a warrant without informing the accused's
agent, with whom the PF was already communicating, that this would occur. That is a
different situation.
[13]
In these circumstances, the legal basis for suspending the warrant in the Bill is not
made out. The court will refuse to pass the Bill accordingly. If the PF did instruct the
detention of Mr Docherty when it was not necessary to do so, that could potentially
constitute oppressive conduct. The instruction would not invalidate the warrant, although it
may give rise to other remedies.
[14]
In the absence of averments relative to Article 5 in the Bill, the court declines to
address its possible application. The matter is not properly focused in this process and the
Crown have not had a proper opportunity to respond. Article 5.1(c) permits the arrest or
detention of a person for the purposes of bringing him before a court on reasonable
suspicion of having committed an offence. In this case, although in submissions it was said
that the issue of such a suspicion was not considered by the sheriff, it was not suggested that
such a suspicion did not exist or that it had not been considered by the PF. If there is to be a
contention that, contrary to the practice that has been in place for at least two centuries, the
7
sheriff should examine the information in advance of the accused's first appearance in court,
properly focused averments and full submissions on the European jurisprudence will be
required. Similarly, if it is to be suggested that, for Article 5 purposes, there requires to be
consideration by a judicial authority or the PF on whether an accused needs to be arrested in
order to bring him to court promptly, that too will require a far greater examination of the
European jurisprudence than has been provided to the court hitherto. A question may also
arise of whether accused persons are in modern practice actually being brought "promptly"
before a judge after arrest in circumstances where, as here, the appearance is two or three
days later. That too may be a question for another day.
