Search warrants need to be "perfect"

We pass to Section 23(3) and warrants to search premises.  The required formalities are succinctly rehearsed in Whyte v Vannet; Urquhart v Napier 1997 SCCR 461: 

“Under section 23(3) of the 1971 Act a Justice of the Peace may grant a warrant if he is satisfied by information on oath that there is reasonable ground for suspecting the specified matters”.

Validity

The irreducible minima for the validity of a warrant are:

(a) it must be signed;
(b) it must be dated; and
(c) it must specify the premises accurately and exclusively.

But, as will be seen, it is a moot point whether all but the first of these essentials must appear in the warrant itself, as distinct from an antecedent document.

That a warrant must be subscribed by the sheriff, magistrate or Justice of the Peace who grants it may seem too obvious to state, yet it took HM Advocate v Bell 1984 SCCR 430 to get it into the books, so to speak, against Crown opposition.

Assuming that the lack of a date is not generally fatal, it certainly is so under the Misuse of Drugs Act since in terms of the section a warrant expires after a month:

“Search warrants which lack precise dates, or any date at all, are defective and ought not to be used in any circumstances.  I respectfully follow and accept the ratio of Bulloch’s case.  The matter is as simple and as straightforward as that.  A search warrant which is undated is ex facie invalid.  The Crown cannot establish the date on which the warrant was signed, or was probably signed, by parole evidence or evidence which is extraneous to the warrant itself.”  HM Advocate v Welsh 1987 SCCR 647 [The reference is to Bulloch v HM Advocate 1980 SLT (Notes) 5].

As to specifying the premises to be searched, in HM Advocate v Scott unreported, referred to by the Court in Bell v HM Advocate 1988 SCCR 292, a warrant was held to be bad “in so far as it fails to specify the premises which are the subject of the intended search”.  But that is just the question, can the warrant be sufficient as to date by the use of “eo die” or “same day,” or as to the premises to be searched by calling them the said premises?  In each case the antecedent of the reference is a document which has no term of art to describe it and appears variously in the decided cases as the preamble, the narrative, the crave, the application, the petition, the information on oath and perhaps others.  Following such an introduction, the “warrant itself” sometimes says no more than “Grants warrant as craved”.  Such a formula would be meaningless on its own:

“It must plainly be the case that the occupier of premises which are sought to be searched should be entitled to see the warrant.  It seems to me that what has been described as the ‘preamble’ - and perhaps that is giving it an undue status - that is, the earlier part of this sheet, is no part of the warrant and would not, in ordinary circumstances, be part of the document which it would be expected that a householder, approached by the police for the purpose of the search, would be expected to see.  In these circumstances, following the approach that has been taken in the case which has been put before me, I take the view that what is described as the ‘preamble’ is properly separate from the warrant itself,” per Lord Clyde at p.296 (text corrected in letter from Lord Clyde to author).

Contrary to Lord Clyde’s reasoning, the judgment of the Appeal Court in Bell v HM Advocate can only mean that the warrant to be exhibited to the occupier of the premises in question must include the prior document.

Unrealistic

“It is quite unrealistic to read the warrant in this case by itself, shutting one’s eyes to the information on oath which immediately precedes it on the single sheet.  The warrant authorised search of the said premises.  The antecedent is clearly the premises at 29 Melville Street identified in the information on oath, on the faith of which it was granted.  Common sense requires us to say that in these circumstances the premises to be searched are sufficiently named in the warrant within the meaning of section 23(3)”.  Bell v HM Advocate supra per Lord Justice-General at p.296.

Thus is the specification of the premises perfected and, similarly, the date may be imported: Brown v HM Advocate 1998 SCCR 356:

“In Welsh the part which was intended to give the date had not been completed and there was nothing in the warrant to refer back to the information to establish its date.  Here, by contrast, the warrant has been specifically designed in such a way that its date can be determined by reference to the date of the information.” per Lord Justice-General at p.358A.

Discrepancies

Minor discrepancies, for example in the name of the occupier of premises correctly described, have been excused:  Allan v Milne 1974 SLT (Notes) 76.  But where the warrant applies to premises occupied by a named person, which turn out to be a bedsittingroom in his exclusive occupancy, it may not be used to justify a search of another such room occupied by another person in the same flat: McAvoy v Jessop 1988 SCCR 172.

Many ingenious attempts to impugn the validity of warrants have been rebuffed:

“The omission of the designation and title of the sheriff does not make the warrant invalid”.  HM Advocate v Strachan 1990 SCCR 341.

In Aziz v HM Advocate 1998 SCCR 736 a warrant bore the date 1994 deleted and 1997 substituted.  The deletion and substitution were by the hand of the police officer who obtained the warrant and were authenticated by his initials alongside, but the Justice of the Peace had not authenticated them.  The Appeal Court rejected an argument that, by reason of the alteration, it could not be said what was the date on the face of the document at the time when it was signed.

“There is no procedure laid down, so far as we are aware, as to the manner by which any alterations to such a pro forma require to be authenticated.  No doubt in other circumstances the authentication could take the form of the Justice initialling the alteration of the year contained in the pro forma.

“We consider the correct way to approach this matter is to ask ourselves whether there is anything to suggest that any impropriety has occurred.  Applying the normal presumption as to the regularity of proceedings, we consider there is no ground whatever for questioning the validity of this warrant.”

It seems to have been overlooked that the contentious alteration was not to a pro-forma, in the sense of a blank form, but to such a form which had been at least partly filled in.  Attempts to question the quality or bona fides of the information on oath fail: HM Advocate v Rae 1992 SCCR 1:

“The information itself which has to be placed before the Justice of the Peace is not necessarily information about the circumstances which had given rise to the reasonable grounds for suspecting the presence of drugs or documents envisaged by the section.  If an officer of the police appears before a Justice of the Peace and, on oath, says that he has such information, then in my opinion the Justice of the Peace is entitled, without further enquiry, to grant the warrant”.  Per Lord McCluskey at p4C (see also Boyle v HM Advocate 1990 SCCR 480 and cf Balloch v Pagan, unreported, High Court of Justiciary 25 November 1975).  In Main v Lockhart 1993 SCCR 347:

“The question is whether the surrounding facts and circumstances were sufficient to provide reasonable ground for suspecting that controlled drugs were in the possession of the person at the house occupied by the complainer, and also that documents relating to the drugs offences were present there, since that also was part of the subject-matter of the warrant for search.  In our view the two significant facts, when taken together, did provide reasonable ground to that effect.  These facts were, first, the presence in the complainer’s motor-car of the sum of £16,550 in a plastic bag on the front passenger floor, which he admitted was his.  The second was his record of previous convictions for drugs offences.”  Per Lord Justice-General at p.349E.

In Dickson v Crowe 1998 SCCR 406 an “application” reading “Compeared the said [blank space] who being solemnly sworn and examined, depones” was held not to invalidate a warrant granted by a sheriff who explained in a separate note to the Appeal Court that the deponent had appeared and sworn and that the blank space was inadvertent.

The expression “any constable acting for the police area in which the premises are situated” in section 23(3) can be taken to mean any such constable whomsoever, and not any named constable.  A sheriff court judgment in which “the failure to insert the name of the officer to whom the warrant was granted” was held to be “quite fatal to the warrant” has not been considered by a higher Court.  HM Advocate v Cumming 1983 SCCR 15 (Sh Ct).  Another sheriff has observed, correctly in the author’s experience, that “such warrants commonly grant the authority simply to any constable of the relevant force”.  HM Advocate v Strachan, supra.  Where an unauthorised person participated in the search, the “irregularity” was excused:

“The Strathclyde Police Officers were close to the London officer when he found the drugs and it could easily have been Strathclyde officers who found them.  In these circumstances, although we have said that the search was irregular, we have come to the conclusion that the irregularity is one which can be excused”.  Hepburn v Vannet 1997 SCCR 698 per Lord Justice-General at p. 701B.

The police officers giving evidence of reasonable grounds were required to justify their action.

Such incidents and accidents could be cured by the promulgation of a standard form of warrant by Act of Adjournal, assuming of course that it would be properly filled in, and dated, and signed.

Conclusions

The standard of “reasonable grounds” to suspect is being lowered by the inclusion of car passengers in respect of whom there are no such grounds except association with others.

Previous association with controlled drugs is being held as a material but not the sole convincing ground for suspicion.  The absence of a standard form of written warrant is productive of many local variants, with unsatisfactory consequences arising from the manner in which they are laid out and filled in.

But all imperfections and irregularities so far litigated have been held to be excusable except lack of signature, date or specification of the premises to be searched.

Update

One search and one warrant report have appeared in Greens Weekly Digest between the publication of the two parts of this article.  In McIntosh v Scott 1999 GWD 13-597, the appellant had been told by the doorman of a nightclub to turn out his pockets and had complied.  He claimed that an unlawful search had occurred and that, in effect, he should have been cautioned.  It was held that there had been no search, and so nothing unlawful.  Held also, that rules for police who suspect a person of an offence are inapplicable to a lay person’s demands as described.

The warrant arose in a bill of Suspension which was refused, but of which more may be heard if the issue is not satisfactorily resolved at a trial.  The ex facie valid warrant was equally applicable to two tenement flats with a common address and occupiers of the same surname.  The crown successfully argued that the issue of validity could not be resolved in advance of enquiry into what happened when the warrant was presented: Herd v HM Advocate 1999 GWD 13-599.

Keith S. Bovey