Bills of suspension against warrants remain subject to High Court jurisdiction, appeal judges rule

Bills of suspension against incidental warrants such as those to take samples or to search remain subject to the “supervisory jurisdiction” of the High Court of Justiciary rather than the Sheriff Appeal Court, appeal judges have ruled.

The Criminal Appeal Court held that such bills are still for the High Court to hear, as it issued written reasons for refusing to pass a bill brought by a man accused of theft who challenged a warrant granted by a sheriff to the police to take his fingerprints.

Lady Dorrian, Lord Bracadale and Lord Malcolm heard that the preliminary issue arose while summary proceedings were in progress in September 2015 against Kyle McWilliam, a tenant in a house of multiple occupancy who along with a co-accused was charged with stealing quantities of money, a television and a box of cigars from a locked office in the property in Castle Douglas.

The availability of fingerprint evidence pointing to the complainer as the perpetrator had only become known shortly before the trial diet and the Crown therefore decided it was “too late” to do anything about it and that it would proceed to trial without the evidence.

However, the trial diet was adjourned because of the arrest of the co-accused and in the light of that the Crown sought the warrant to take the fingerprints of the complainer, which granted by the sheriff at Dumfries.

The complainer sought suspension of the warrant, but the preliminary question arose as to whether it was competent for High Court to hear the bill or whether it was now subject to the jurisdiction of the Sheriff Appeal Court, which had commenced hearing criminal cases on 22 September 2015 and in terms of section 118 of the Court Reform (Scotland) Act 2014 now had “all the powers and jurisdiction of the High Court of Justiciary…so far as relating to appeals from courts of summary criminal jurisdiction”.

The general rule is that suspension as a mode of review is competent only after the conclusion of a trial and bills of suspension against conviction are also subject to the jurisdiction of the Sheriff Appeal court, but the appeal judges observed that the decision to grant incidental warrants was an “administrative act”.

Delivering the opinion of the court, Lord Bracadale said: “To the general rule that suspension is competent only after the conclusion of a trial there is a recognised exception in respect of incidental warrants which do not form part of the case. These include warrants to take samples or to search. Such warrants may be suspended immediately.

“The decision to grant such a warrant is an administrative act. In granting such a warrant the sheriff is not sitting as a court. A bill to suspend such a warrant does not constitute an appeal from a 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. Such bills remain subject to the supervisory jurisdiction of the High Court.”

The sheriff granted the warrant after noting that the taking of the fingerprints was a “non-invasive procedure” and that the police officers already had the power to take samples of his fingerprints at the time of his detention.

He also noted that the petition for the warrant stated that it was necessary because police investigations “since the date of commencement of proceedings” had established that fingerprints found at the locked room at the locus which had been broken into were those of the complainer.

The sheriff considered that there was “no prejudice to the complainer in granting the warrant, as he would be in no different position than he would have been if the fingerprints had been taken at the time of his detention.

But the appellant argued that special circumstances had not been shown for taking the fingerprints after the commencement of proceedings and that there was “insufficient evidence” for the Crown to proceed in the absence of the prints.

It was submitted that the Crown must have known that fingerprint evidence might be available and that there had been an “inexcusable error”.

In relation to prejudice there had been three trial diets set down, so it was said there was some prejudice and there had been a one-year delay.

Refusing to pass the bill, the court observed that the law in relation to granting such warrants was “not in dispute”.

Lord Bracadale said: “Where a warrant to take fingerprints is sought after proceedings have commenced it will only be granted where the circumstances are special and in exercising his discretion the sheriff requires to have regard to the whole circumstances, weighing the public interest in the investigation and suppression of crime against the interest of the accused person.

“We accept that the existence of the fingerprint evidence only came to the attention of the procurator fiscal in August 2015 against a background where the complainer’s fingerprints had not been taken when he was detained.

“We are satisfied that the sheriff was entitled to regard these circumstances as special. The sheriff exercised his discretion taking into account considerations such as the non-invasive nature of the procedure and the absence of prejudice to the complainer. We are satisfied that he was entitled to exercise his discretion in the way that he did.”

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