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Scottish High Court of Justiciary Decisons
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BILL OF ADVOCATION BY HMA AGAINST DAVID CALLAGHAN [2022] ScotHC HCJAC_26 (23 July 2019)
URL: http://www.bailii.org/scot/cases/ScotHC/2022/2022_HCJAC_26.html
Cite as:
[2022] ScotHC HCJAC_26,
[2022] HCJAC 26
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2022] HCJAC 26
HCA/2019/6/XJ
Lord Justice General
Lord Menzies
Lord Turnbull
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
BILL OF ADVOCATION
by
HER MAJESTY'S ADVOCATE
Complainer
against
DAVID CALLAGHAN
Respondent
Complainer: A Prentice QC AD (sol adv); the Crown Agent
Respondent: IM Paterson (sol adv); Tod & Mitchell, Paisley
24 July 2019
[1]
The respondent has been indicted, along with a co-accused, on a charge of the
murder of Owen Hassan on 7 November 2018 at Greenview Street, Pollockshaws, Glasgow.
The preliminary hearing took place on 5 June 2019, when a continued preliminary hearing
was fixed for 10 September and a trial diet for 19 November 2019.
2
[2]
Meantime, on 21 May 2019, the police were told of the existence of a car, which was
registered to the respondent. It had been found in a car park in Paisley. There was no
insurance for the car and it was removed, on the instructions of the police, to 911 Rescue
Recovery in Glasgow. On looking through the windows of the car, a bag could be seen
containing clothing. The procurator fiscal at Glasgow applied to a summary sheriff for a
warrant for the police to attend at the premises of the recovery company and to take
possession of the car, move it to a place suitable for examination and thereafter to examine
and search it for articles, weapons, clothing and other items which might be material to the
investigation. It was averred in the application that one of the perpetrators of the murder,
who had been identified as the respondent, had been wearing distinctive clothing. This
clothing had not been recovered, nor had certain bladed weapons said to have been used in
the murder. There were, it was said, reasonable grounds to believe that this evidence was
material to the prosecution of the crime and could be recovered by examining the car and its
contents. The application for the warrant specified that the respondent and his co-accused
had been indicted to the preliminary hearing in the High Court.
[3]
The sheriff accepted that it was competent, standing Frame v Houston 1991 JC 115 at
118-119, for the Crown to apply for a warrant to the sheriff, notwithstanding the existence of
High Court proceedings. However, he had regard to Holman Fenwick Willan LLP v Orr 2017
JC 239 (at paras [25] and [31]) and interpreted this as meaning that, in the absence of
exceptional circumstances, the appropriate procedure was for the Crown to apply to the
High Court for the warrant. There was no particular urgency which would merit an
immediate grant of the warrant.
3
[4]
In this Bill of Advocation, it was submitted that the summary sheriff erred in law in
refusing to consider the merits of the petition and in determining that the procedure should
be by petition to the High Court. The Bill was not opposed.
[5]
Holman Fenwick Willian LLP v Orr (supra) states (at para [25]) that an application for a
warrant after the service of the indictment is an extraordinary procedure. It is not that it is
extraordinary to apply to the sheriff, but the fact that there is an application at all at this
stage in the proceedings. Although there may be circumstances in which the sheriff may
consider that the matter ought to be dealt with by the High Court (ibid para [31]), in this case
there were no such circumstances. Although the case had been indicted to a preliminary
hearing, no procedure before the High Court had occurred. The circumstances were
extraordinary in that the evidence, for which the warrant was sought, had only come to the
attention of the complainer after the indictment had been served. That in itself justified an
application to the sheriff as the simplest way of proceeding.
[6]
This court will accordingly pass the Bill and grant the warrant.
