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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice Clerk
Lord Nimmo Smith
Temporary Judge CGB Nicholson QC
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[2007] HCJAC 40
Appeal No: XJ1316/06
OPINION OF THE COURT
delivered by THE LORD
JUSTICE CLERK
in
BILL OF SUSPENSION
by
SHARON BROWN
Complainer;
against
PROCURATOR FISCAL, Airdrie
Respondent:
_______
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For the Complainer: Shead; Drummond Miller
For the Respondent: Young,
AD; Crown Agent
25 July 2007
The Bill
[1] The
complainer has been indicted for trial at Airdrie Sheriff Court on 17 charges under the Misuse of
Drugs Act 1971. The locus libelled in
each charge is her home at 88E Glenhove Road, North Carbrain, Cumbernauld. She seeks suspension of a search warrant
granted on 25 November 2004 in relation to her home on the
ground that it was granted unlawfully. Certain
of the charges will depend on evidence recovered under the warrant.
The statutory
provisions
[2] Section 23 of
the Misuse of Drugs Act 1971 provides inter
alia as follows:
"(3) If a justice of the peace (or in Scotland
a justice of the peace, a magistrate or a sheriff) is satisfied by information
on oath that there is a reasonable ground for suspecting-
(a) that any controlled drugs are, in
contravention of this Act or of any regulations made thereunder, in the
possession of a person on any premises;
or
(b) that a document directly or indirectly
relating to, or connected with, a transaction or dealing which was, or an
intended transaction or dealing which would if carried out be, an offence under
this Act, or in the case of a transaction or dealing carried out or intended to
be carried out in a place outside the United Kingdom, an offence against the
provisions of a corresponding law in force in that place, is in the possession
of a person on any premises,
he
may grant a warrant authorising any constable acting for the police area in
which the premises are situated at any time or times within one month from the
date of the warrant, to enter, if need be by force, the premises named in the
warrant, and to search the premises and any persons found therein and, if there
is reasonable ground for suspecting that an offence under this Act has been
committed in relation to any controlled drugs found on the premises or in the
possession of any such person, or that a document so found is such a document
as is mentioned in paragraph (b) above, to seize and detain those drugs or that
document, as the case may be."
The granting of the warrant
[3] On 25
November 2004
at about 8.45 pm PC Hazel Johnson of N Division, Strathclyde Police,
Cumbernauld, applied for the warrant to Mrs Patricia D Morrison, a justice of
the peace for the North Lanarkshire area. PC Johnson told
the justice that she was authorised to do so by the procurator fiscal.
[4] The justice put
PC Johnson on oath. PC Johnson then told
her that she had received information from two separate and reliable sources
that the complainer had been dealing in illegal substances from the locus. One of her informants and a friend of that
informant had purchased illegal substances from the complainer. PC Johnson advised the justice that if the
warrant was granted, it would be executed immediately. On this information, the justice granted the
application and signed the warrant.
Thereafter police officers searched the complainer's home under the
authority of the warrant.
The Bill of Suspension
[5] The
complainer avers that because the justice heard the application under section
23(3) without having the clerk to the District Court in attendance, that
procedure infringed the complainer's rights under article 6 of the Convention to
have the application decided by an independent and impartial tribunal. The complainer was therefore "denied the fair
hearing to which she was entitled." The
complainer also avers that the search of her home constituted a breach of
article 8, but counsel for the complainer has not persisted in that point.
Submissions for the
parties
[6] Counsel for
the appellant submitted that the justice's role under section 23(3) (supra) was that of an independent
judicial figure (Birse v HM Adv 2000 SCCR 505, Lord Justice
General Rodger at para [10]). The
justice's decision was a judicial act. Where
a warrant was applied for, questions of law could arise. A justice, unlike a sheriff, was not
qualified to deal with such questions. It
was the function of the clerk to the District Court to give the justices the
necessary legal advice (Clark v Kelly 2003 SCCR 134). Where the justice made a decision under
section 23(3) in the absence of the clerk, the justice no longer had the
appearance of being an independent and impartial tribunal. Although the complainer was not entitled to
be heard on the application, she was entitled to have a fair hearing held. In section 23(3) the words "justice of the
peace" should be read to mean "a justice of the peace with a clerk in
attendance."
[7] The advocate
depute submitted that article 6 did not apply to the justice's decision. The justice was not acting as a court. In granting the warrant she did not determine
any person's civil rights and obligations or any criminal charge. Article 6 would apply at the time of the
trial if questions should arise as to the admissibility of the evidence recovered
under the warrant (Mellors v United Kingdom, App No 34723/97, 21 May
1998; ECHR (First Chamber)).
Conclusions
[8] It is not
suggested that the application in this case raised any question of law that
would have required the justice to seek legal advice; nor that the decision itself
was vitiated by any error of law; nor that on the merits of the application the
decision was unreasonable or irrational.
The proposition for the complainer is that in every case in which a
justice considers an application under section 23(3) (supra), the clerk to the District Court must be present, otherwise
the justice's decision will lack the appearance of independence and
impartiality that article 6 requires.
[9] In our
opinion, this Bill is entirely without merit.
It rests on the fallacious idea that because a justice is a judicial
officer, an application under section 23(3) therefore constitutes judicial
proceedings. In our opinion, article 6
does not apply to such an application. Section
23(3) remits the decision to "a justice of the peace, a magistrate or a
sheriff" as an individual and not to a court.
A justice, like a sheriff, is an independent judicial officer. He must act judicially in the sense that he
must conscientiously consider the information submitted in support of the
application and decide whether he is satisfied that the statutory requirements (ss
(3)(a) and (b)) have been made out. But a
decision under section 23(3) is not a decision of a court of law. It does not constitute the determination of
any criminal charge. Therefore article 6
cannot apply (Mellors v United Kingdom, supra).
[10] In our
opinion, the decision of a justice under section 23(3) is essentially an
administrative act. That is confirmed by
the fact that the person to whose premises the warrant relates is not entitled
to be notified of the application or to be heard by the justice when the
application is made. If a question of
law should ever arise in such an application, the justice will be entitled to
call for advice from the clerk; but that is not a matter on which article 6 has
any bearing.
[11] Clark v Kelly (supra), on which counsel for the
complainer relied, has nothing to do with the granting of warrants. The main question in that case was whether a
trial conducted before a justice lost the appearance of independence and
impartiality if the justice took advice from a third party, the clerk of court,
on questions of law. That question indisputably
related to judicial proceedings. The
decision of the Judicial Committee does not suggest that, in making a decision
of the kind that we are considering, a justice must always be advised by a
clerk.
[12] If it should
be suggested that a warrant has been obtained irregularly, which is not the
case here, that question can be raised at the stage of trial if the Crown
should rely on evidence recovered under it.
Disposal
[13] We refuse the
Bill.
