Alexander Sturrock v. Her Majesty’s Advocate [2016] HCJAC 97

Appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- The appellant was indicted in relation to contraventions of the Misuse of Drugs Act 1971 following the recovery of a quantity of drugs from his home address. The appellant had lodged a minute in terms of section 71 of the Criminal Procedure (Scotland) Act 1995 in which it was contended that:- (1) the actions of the police in entering the premises were illegal and in circumstances of no urgency any evidence recovered was inadmissible; (2) there was no drug paraphernalia visible within the premises; and (3) having entered illegally the police carried out an illegal search and the items recovered were not admissible. Before the sheriff it was submitted that the search was unlawful and irregular and applying Lawrie v. Muir 1950 JC 19 the irregularity could not be excused and the evidence was inadmissible. After hearing evidence the sheriff repelled the objection stating that the search was regular and justified following HMA v McGuigan 1936 JC 16 and, as such, he did not require to address the issue of excusal of irregularly obtained evidence. The appellant appealed against that decision. It was submitted on behalf of the appellant that when the police entered the property without a warrant they were acting illegally and the recovery of drugs thereafter, following the obtaining of a search warrant, was inadmissible and the irregularity was inexcusable. It was submitted that the correct way to challenge the conduct of the police was to object under the section 71 minute rather than by presentation of a Bill of Suspension as it was the illegal conduct of the police that was being challenged rather than the warrant itself. It was submitted that the case of Allan v Tant 1986 JC 62 could be distinguished. It was submitted that all evidence flowing from the illegal entry should be held inadmissible including the evidence obtained under the warrant which had subsequently been obtained. On behalf of the Crown it was submitted that, whilst there remains some uncertainty in relation to the procedure to be adopted when there is a challenge to the admissibility of evidence seized under warrant where the warrant was obtained on the basis of evidence which was itself irregularly obtained, the only question for the court here was whether the sheriff had been correct to repel the section 71 minute. It was submitted on behalf of the Crown that the sheriff was correct to repel the minute. Here the court considered that it was necessary to remit the hearing to a court of 5 judges to enable a larger court to issue guidance on how Allan v Tant is being interpreted in these circumstances. It was noted that parties were approaching the issue by considering whether there was a proper basis for granting the warrant before considering the admissibility of the evidence flowing from the warrant. A difficulty in the present case was that the minute proceeded on the basis that there had been a systematic search of the premises and recovery of drugs before the search warrant had been obtained, however, the sheriff held that there had been no search of the premises before the drugs were recovered. As such it was not open to the appellant to challenge the warrant before the sheriff as the correct means to challenge a valid search warrant was by presentation of a Bill of Suspension. The parties referred to the current confusion within the legal profession in relation to the appropriate procedure to be followed, namely, whether a challenge to such evidence should be by way of Bill of Suspension or by challenging the admissibility of evidence. The court noted that such confusion is undesirable and requires to be clarified.