Her Majesty’s Advocate v. David Callaghan [2022] HCJAC 26

Bill of Advocation:- The respondent was indicted, along with a co-accused, on a charge of murder. The Preliminary Hearing took place on 5 June 2019 with a continued Preliminary Hearing fixed for 10 September and a trial diet for 19 November 2019. During the course of that High Court procedure (i.e. following the service of the indictment), on 21 May 2019, the police were told of the existence of a car, which was registered to the respondent which was subsequently located and within which it was noted there was a bag which appeared to contain clothing. The procurator fiscal at Glasgow applied to a summary sheriff for a warrant for the police to attend at the premises of the recovery company and to take possession of the car, move it to a place suitable for examination and thereafter to examine and search it for articles, weapons, clothing and other items which might be material to the investigation. The application for the warrant specified that the respondent and his co-accused had been indicted to the Preliminary Hearing in the High Court. The sheriff accepted that it was competent for the Crown to apply for a warrant to the sheriff, notwithstanding the existence of High Court proceedings (Frame v. Houston 1991 J.C. 115), however, in the absence of exceptional circumstances, the appropriate procedure was for the Crown to apply to the High Court for the warrant as there was no particular urgency which merited an immediate grant of the warrant. The sheriff refused to consider the merits of the petition and determined that the procedure to be followed should be by petition to the High Court. The Crown presented a Bill of Advocation in which it was contended that the summary sheriff had erred in refusing to consider the merits of the petition. The Bill was not opposed by the respondent. Here the court passed the Bill and granted the warrant. The court stated that whilst there may be circumstances in which the sheriff may consider that a petition ought to be dealt with by the High Court this was not such a case. Whilst the case had been indicted to the High Court, no procedure had taken place. Further, the circumstances could be viewed as extraordinary in the sense that the evidence which had come to the attention of the Crown had only done so after the indictment had been served which justified an application to the sheriff as the simplest way of proceeding.