A.S. v. Her Majesty’s Advocate [2016] HCJAC 126

Continued appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- Here a bench of 5 judges considered the issue of whether it is competent to challenge the admissibility of evidence seized under a search warrant by preliminary issue minute under section 71 of the Criminal Procedure (Scotland) Act 1995. The court observed that whether such evidence was challengeable by way of a bill of suspension or by an objection at trial had frequently resulted in uncertainty amongst both lawyers and judges. Here the court sought to clarify that it is not necessary to challenge the validity of the warrant by bill of suspension to challenge the admissibility of evidence. In this case it was the initial police search and the evidence that was obtained that it was contended were inadmissible. There was no attack on the validity of the search warrant but, rather, the validity of the initial police search. It was submitted here on behalf of the appellant that a distinction requires to be drawn between cases in which the challenge is based upon an error of law in the granting of the warrant, namely, a challenge intrinsic to the warrant procedure and one where the challenge relates to something distinct from that procedure, namely, something extrinsic to the warrant procedure. Here the court considered that the case of Allan v Tant 1986 JC 62 had been correctly decided and the issue of the validity of a search warrant could be separated from the issue of the admissibility of evidence obtained as a result. The court considered that where the challenge is intrinsic to the warrant procedure the reviewing of the decision to grant the warrant on error of law grounds would be dealt with under the bill of suspension procedure. In other cases, however, where the warrant was not said to have been granted upon an error of law but the procedure was tainted by a prior illegality then that would be challengeable by way of objection to the admissibility of evidence. Therefore, in circumstances where a sheriff was entitled to grant the warrant on the basis of the information placed before him but it is argued that the actings of the police/Crown before or after the granting of the warrant were unfair the admission of that evidence can be challenged under section 71. Here the court refused the appeal. The sheriff made a number of findings in relation to the evidence of the inspector in charge of the search:- (1) the inspector considered the situation to be urgent; (2) that the inspector’s concerns that he needed to act urgently to prevent any drugs being disposed of was reasonable in the circumstances; (3) there was a danger that any surveillance of the property may alert the occupants; (4) the inspector’s estimate that it would take a number of hours to obtain a search warrant was correct; (5) that the inspector was acting in good faith and his views were genuinely held. The court considered that, when viewed objectively, the urgency of the police actions were justified and no issue of irregularity arose and, therfore, the principles of Lawrie v Muir 1950 JC 19 did not have to be considered.