Sheriff Appeal Court refuses Bill of Suspension challenging expediency warrant as ‘incompetent’

The appeal sheriffs concluded that suspension of a warrant such as this granted by a sheriff exercising his administrative powers remained “subject to the jurisdiction of the High Court of Justiciary”.

The Sheriff Appeal Court declined to hear parties on the Bill of Suspension after hearing submissions on the preliminary issue whether it was competent for the court to consider and dispose of the Bill.

Sheriff Principal Mhairi Stephen QC, sitting with Sheriff Principal Craig Turnbull and Sheriff Paul Arthurson QC, heard that the complainer Graham McMillan was seeking suspension of an “initiating” or “expediency” warrant granted by the sheriff at Paisley to apprehend him.

The court was told that that in July 2016 the complainer had been charged by the police with a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 occurring at the family home some months earlier and was released by the police on an undertaking to appear at Paisley Sheriff Court in August 2016.

That undertaking was continued by the respondent and then cancelled altogether as a decision on whether criminal proceedings were appropriate had not yet been taken.

The Procurator Fiscal at Airdrie then sought an apprehension warrant – the terms of which are printed on every complaint prepared by the procurator fiscal in summary proceedings in Scotland – on grounds of expediency in relation to an accompanying complaint libelling the same charge.

That request was placed before the sheriff in chambers who granted the warrant now complained of.

The Bill was addressed to the High Court of Justiciary, but was lodged in the Sheriff Appeal Court.

The solicitor advocate for the complainer argued that this court had jurisdiction.

The appeal sheriff who considered the Bill initially was addressed by the complainer on this preliminary jurisdiction point before granting warrant to serve on the respondent thus allowing the court to determine the preliminary issue.

But the respondent, who argued that the Bill fell outwith this court’s jurisdiction, failed to raise any preliminary issue of competence or jurisdiction in his answers.

Having been fully addressed by the parties, the appeal sheriffs have now given their reasons for refusing the Bill as “incompetent” in this court.

Delivering the opinion of the court, Sheriff Principal Stephen said: “The Sheriff Appeal Court was established last year by virtue of the Courts Reform (Scotland) Act 2014 (“the 2014 Act”). This court is a creation of that enactment. Section 118 of the 2014 Act makes provision for appeals to this court in summary criminal proceedings.

“Read together these provisions point to this court having jurisdiction in appeals from courts of summary criminal jurisdiction including Bills of Suspension against conviction.”

It was argued by the complainer that the warrant in question is an expediency warrant which commences the summary prosecution. It is granted in terms of section 139(1)(b) of the 1995 Act. It was therefore part of the summary proceedings before the court and the sheriff’s decision to grant the warrant may be appealed.

Sheriff Principal Stephen said: “Summary proceedings do not commence until the procurator fiscal either cites the accused or executes any initiating warrant…Section 140 of the 1995 Act provides that that enactment will be sufficient warrant for citation of an accused. At the risk of stating the obvious the proceedings do not commence until the procurator fiscal takes steps to cite the accused.

“On a plain reading of section 139 when the prosecutor makes a motion in terms of section 139(1)(b) the complaint is placed before a judge of the court in which the complaint is brought. The judge who considers the prosecutor’s motion does so usually in chambers exercising his administrative powers.”

In Brown v Donaldson HCJAC 40 the appeal court considered whether a justice of the peace in granting a search warrant was acting as a court of law. Lord Gill, giving the Opinion of the Court at paragraph , regarded the decision whether to grant a warrant as an administrative act.

More recently, a similar issue was decided in McWilliam v Harvie HCJAC 29, in which the High Court of Justiciary considered the competence of a Bill seeking to suspend a fingerprint warrant. In determining that such Bills remain subject to the supervisory jurisdiction of the High Court of Justiciary the court stated: “A bill to suspend such a warrant does not constitute an appeal from the court of summary jurisdiction. Thus, it is clear that a bill to suspend a warrant of the kind granted in the present case does not come within the ambit of section 118 of the 2014 Act and is not included in the transfer of powers to the Sheriff Appeal Court”.

The appeal sheriffs concluded: “We consider that a bill seeking to suspend a warrant of the nature of an initiating warrant as granted by the sheriff in this case likewise does not fall within this court’s powers. It does not constitute an appeal from a court of summary jurisdiction.

“The prosecutor’s motion is placed before ‘a judge of the court’ not before the court of summary jurisdiction itself. When the sheriff considers whether to refuse or grant the prosecutor’s motion for a warrant he is essentially exercising his administrative powers and is not sitting as a court of summary jurisdiction.”