Brian Docherty v. Her Majesty’s Advocate [2021] HCJAC 45


Bill of Suspension:- On 29 November 2020 the complainer was charged by the police with assault to severe injury. He was released on an undertaking to attend Dunoon sheriff court on 10 December 2020 and he did so, to be told that the undertaking had been cancelled and his case would not call that day. On 22 July 2021, the procurator fiscal sought, and had granted a petition warrant from the sheriff, at Dunoon authorising, the complainer’s arrest on the charge. The sheriff was not advised of the prior procedure. On 7 August 2021 the complainer was arrested and detained at a police office in advance of an appearance on petition at Greenock Sheriff Court on 9 August 2021 at which time he was committed for further examination and released on bail. Here the complainer sought suspension of the petition warrant on the basis it was oppressive for the Procurator Fiscal to seek a warrant for the petitioner’s arrest without telling the sheriff about the prior procedure and it was contended that the sheriff, if he had been informed of the previous procedure, he would have granted the warrant only on the condition that  complainer would initially be invited to attend court voluntarily (the sheriff refuted that contention in his report to the court). It was submitted on behalf of the complainer that if an accused person was to be deprived of his liberty, the Crown required to make “full disclosure” of all material considerations, including the previous procedure and the omission of the earlier procedure resulted in the sheriff being misled and the circumstances amounted to oppression. The submissions on behalf of the complainer went further than the Bill in contending that Article 5 of ECHR relating to the deprivation of liberty had been breached and the sheriff’s conduct had also been oppressive. On behalf of the Crown it was submitted that the court should only consider the point raised in the Bill and, having done that, refuse the Bill it being submitted that the petition had contained all the information that was required in respect of both the accused and the offence and there was no basis upon which the sheriff could have refused to grant the warrant or granted it subject to any condition. Here the court refused to pass the Bill. The court noted the limited function of a petition warrant within pre-committal procedure stating that the function of the petition warrant is to obtain judicial authority to bring an accused before the court on the charges libelled by the procurator fiscal and is not intended to be an authorisation to deprive the accused of his liberty for any significant period. As such, the court considered that it is not necessary on the part of the sheriff do make any enquiry beyond checking the legality of the warrant and the question of whether the accused should be committed and granted bail, would only arise when the accused appeared before the sheriff. The court considered that the legal basis for suspending the warrant in the Bill was not made out.

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