Appeal Court clarifies law on challenging admissibility of evidence obtained under warrant

A full bench held that a distinction could be drawn where the challenge is to the granting of the warrant itself, in which case the appropriate course is to adopt a Bill of Suspension, and where the challenge relates to the actings of the Crown or police before the or after the warrant has been granted, in which case the correct procedure is to lodge a minute under section 71 of the Criminal Procedure (Scotland) Act 1995.

The decision was given in an appeal by a man, AS, who was charged with offences under the Misuse of Drugs Act 1971.

A preliminary issue minute lodges on behalf of the appellant did not attack the validity of the search warrant obtained, but focussed on the initial police search and contended that the evidence so obtained was inadmissible on the basis of actings by the police before they had sought the warrant.

The five judge bench (Lord Justice General, Lord Justice Clerk, Lord Brodie, Lord Bracadale and Lord Turnbull) observed that the issue was a cause of “uncertainty” among the legal profession and occasionally judges, and that the uncertainty appeared to stem from the 1986 case of Allan v Tant, and a belief that to challenge the admissibility of the evidence requires a challenge to the validity of the warrant, which can only be done by means of a Bill of Suspension.

In Allan v Tant a sheriff at trial concluded that the police officer who had applied for and to whom a warrant had been granted by a justice of the peace had not had the requisite reasonable grounds for suspecting that controlled drugs were in the possession of a person on the relevant premises.

The sheriff therefore decided that the warrant should not have been applied for or granted, and that evidence of what was recovered was inadmissible.

On appeal the court held that the sheriff was not entitled to “go behind the warrant” and that he was not entitled to hold either that the warrant should not have been granted, or that the evidence was inadmissible.

However, the evidence upon which the officer satisfied the justice of reasonable grounds, thus obtaining the warrant, was the same evidence upon which the trial sheriff reached a different view as to whether the officer had reasonable grounds.

The sheriff was thus holding that the granter of the warrant had erred in doing so, and was in effect purporting to review that original decision.

But such a course was not open to him, and since that was the only basis upon which he held the evidence to be inadmissible, it followed that his decision on admissibility could not stand.

Accordingly, the observation that the sheriff could not hold the evidence to be inadmissible must be understood in that context.

It was agreed that Allan v Tant had been correctly decided, and it was submitted that the case had to be considered in context, as when that case was properly understood the issue of validity of a search warrant could be separated from the question of admissibility of evidence obtained thereunder.

Delivering the opinion of the court, the Lord Justice Clerk, Lady Dorrian (pictured) said: “Where the challenge to the warrant is one which directly relates to the actings of the judicial office holder in granting it – for example that it was incompetent to grant such a warrant, or that the information upon which it is agreed he proceeded could not suffice to meet the test for granting the relevant warrant, the appropriate course to adopt is a bill of suspension.”

“However, where it is accepted that the judicial office holder was entitled to grant the warrant on the basis of the information placed before him, but it is argued that actings of the police or the Crown before, or even after, the granting of the warrant mean that it would be unfair to admit the evidence, that is a challenge which may be made and resolved by section 71 procedure.”

The “clear legislative intention” behind section 79 and associated sections of the 1995 Act is that as far as possible, issues of admissibility should be determined “in advance of trial”.

“The court in which the trial is to be held, and which will be case managing the matter in preparation for trial, is the one best placed to determine the issue of admissibility of the evidence,” Lady Dorrian added.

Turning to the present case, the sheriff found that the police inspector’s suspicion that he needed to act to prevent any drugs being redistributed was “reasonable”, and that the actions of the police were based on urgency and the fact that it would take “several hours” to obtain a warrant.

The sheriff found that the actions of the police were “justified” and the appeal court refused the appeal as the judges were unable to reach a different conclusion.