Dunoon man arrested for assault following petition for warrant refused suspension order by High Court

Brian Docherty had previously been released from police custody and attended Dunoon Sheriff Court on a specified day only to be told his case would not be called. he argued that the Crown’s conduct in seeking the warrant was oppressive and in breach of his ECHR rights.

The bill was heard by the Lord Justice General, Lord Carloway, sitting with Lord Pentland and Lord Matthews. Ann Ogg, solicitor advocate, appeared for the petitioner and Alex Prentice QC for the Crown.

Unaware of proceedings

The petitioner was charged with assault to severe injury in November 2020. He was later released by the police on the undertaking that he would attend Dunoon Sheriff Court on 10 December 2020. On that day, he attended court but was told his undertaking had been “cancelled”.

In July 2021, the procurator fiscal sought a petition warrant from the sheriff authoring the arrest of the petitioner on the charge. The sheriff, who was unaware of the prior proceedings, signed the warrant, leading to the petitioner’s detention at a police office in August. Following an appearance at Greenock Sheriff Court, he was released on bail having not yet been indicted.

It was argued by the petitioner that it was oppressive of the Crown to seek a warrant for his arrest without full disclosure to the sheriff about the prior procedure. He believed that If that had been done, the sheriff would have granted the warrant only on the condition that he would initially be invited to attend court voluntarily, a position the sheriff refuted.

Counsel for the petitioner further submitted that the Crown’s conduct was in breach of Article 5 of the ECHR, which 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, and no method whereby the sheriff could be satisfied that there was a reasonable suspicion that the petitioner had committed the alleged offence.

The position of the Crown was that the petition warrant was sought as it was the only competent means of commencing solemn proceedings short of serving an indictment. Information about the complainer’s previous release on an undertaking was irrelevant to those proceedings, and the petition had contained all the required information in respect of both the accused and the offence.

Limited purpose

Delivering the opinion of the court, Lord Carloway began by noting: “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.”

He continued: “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.”

Examining the role of the sheriff in closer detail, Lord Carloway said: “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.”

He concluded: “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.”

In a postscript addressing the potential application of Article 5, Lord Carloway added: “In this case, although in submissions it was said that the issue of [reasonable] 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 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.”