Full bench to review procedure for challenging search warrant and admissibility of evidence

Three judges of the High Court of Justiciary Appeal Court observed that there was “confusion” among the legal profession over an issue of “great importance” and that the matter should be remitted to a larger court to consider.

The issue arose in an appeal under section 74 of the Criminal Procedure (Scotland) Act 1995 from the determination of a preliminary issue challenging the admissibility of evidence obtained during a police search of the home of the appellant Alexander Sturrock, without – initially, at least – a warrant, and without invitation.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Brodie and Lord Drummond Young, heard that among other things, the search yielded a quantity of heroin said to be valued at £35,000.

The appellant asserted that the search was “unlawful and irregular” and, since the irregularity could not be excused, that the evidence was “inadmissible”.

However, after hearing evidence the sheriff repelled the objection.

On appeal it was submitted that by forcing entry to the property without a warrant, the police acted “irregularly and inexcusably”.

The police inspector who instructed officers to force entry to the property, detain any persons found therein and preserve the property until a search warrant was obtained considered that this was a “legitimate course of action” in terms of HMA v McGuigan 1936 JC 16.

McGuigan was authority for the proposition that entering premises without a warrant will only be regular if there is urgency, but it was argued that there was “no urgency” in this case and the actions of the police could not be excused, therefore the evidence resulting therefrom was “inadmissible”.

Initially, the Advocate Depute submitted that the sheriff did not err in concluding that the actions of the police were based on urgency and “objectively justified”.

However, he considered that there were unsatisfactory features of the case, not least of which was that the information available to the inspector at the outset would appear to be sufficient to justify an application for a search warrant.

The Advocate Depute’s primary submission thus became that there had been an irregularity, not sanctioned by McGuigan, but that the irregularity was “excusable”.

The preliminary issue minute proceeded on the basis that there had been a systematic search of the premises, after the police had forced entry, and before a warrant was obtained, the implication being that the heroin was found during that search, and that evidence of that find would have been irregular and inadmissible.

In fact, the sheriff having heard evidence accepted that there had been no such search and accordingly, on the evidence the heroin was found following a search under the warrant granted later on the day in question.

That warrant could not be challenged before the sheriff, in terms of Allan v Tant 1986 JC 62, and to do so the proper course of action would have been to present a Bill of Suspension, but that had not been done.

The court was concerned that, standing the sheriff’s finding in fact that there had been no search of the premises prior to the obtaining of the warrant, neither party had addressed the existence of the warrant upon which that search was based, or made reference to Allan v Tant.

The court accordingly asked the parties for further written submissions as the judges were aware that practical difficulties have in the past arisen as to the most suitable method of challenging evidence in circumstances such as the present.

For the appellant, it was submitted that if it were correct that the actions of the police in entering the property were illegal, irregular and inexcusable, all evidence flowing from that illegal act should be held to be inadmissible, and the subsequent obtaining of a warrant could not excuse the earlier illegal actions.

It was argued that Allan v Tant could be distinguished, since in that case there was no suggestion that the police had acted illegally in advance of the warrant, or in obtaining the basis for applying for a warrant.

The correct way to challenge the initial action by the police, the appellant submitted, was by section 71 minute, appeal from which could be taken under section 74, as a Bill of suspension in advance of a section 71 minute would be premature, since the latter determines the factual matrix upon which any Bill of Suspension may proceed.

The sheriff’s decision on the minute, that the police actings were regular, and in any event excusable, could not be challenged by Bill of Suspension, and required to be the subject of an appeal under section 74.

The Advocate Depute submitted that there was “uncertainty” over the procedure to adopt when seeking to challenge the admissibility of evidence seized under warrant where the warrant was obtained on the basis of evidence irregularly obtained.

The accused may present a challenge by Bill of Suspension or objection may be taken in the course of a trial – the most appropriate method being by section 71 minute, as it was more logical for such matters to be determined at first instance since disputed questions of fact may arise.

A different question arose when a bill to suspend a warrant was sought, the question then being whether the warrant was competently granted. Here the only question was whether the sheriff had been correct to repel the section 71 Minute and that question should be answered in the affirmative.

The appeal judges described the apparent “lack of clarity” about the appropriate procedure to be followed as “a highly undesirable state of affairs” and therefore decided to remit the issue to a larger court.

Delivering the opinion of the court, the Lord justice Clerk said: “The submissions of the parties in the present case tend towards a position in which the issue of whether there was a proper basis for granting the warrant (the first issue addressed in Allan v Tant) might be separated from the second, the admissibility of the evidence flowing from the warrant.

“The result would be that in a section 71 minute the court would not be considering the question whether the warrant had properly or validly been granted: rather it would be addressing the wider question of admissibility of the evidence, in consideration of which the existence of the warrant would only be one relevant factor.

“We make no observations as to the merits or otherwise of such a proposal. The issue is clearly one of very great importance, and is one on which there currently appears to be some confusion.

“Any reconsideration of procedure would involve an appraisal of the decision in Allan v Tant, or at least the way in which it has been interpreted. To do that requires this case to be remitted to a larger court, which is the course of action we shall adopt.”