APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Bonomy Lord Brodie Sheriff Principal Lockhart	[2011] HCJAC 106 Appeal No: XJ574/11and XJ503/11 OPINION OF THE COURT delivered by LORD BONOMY in BILLS OF SUSPENSION by (FIRST) MOHAMMED ASHIF and (SECOND) ALIAH ASHRAF Complainers; against PROCURATOR FISCAL, GLASGOW Respondent: _______

First Complainer: Richardson; John Pryde & Co, Edinburgh

Second Complainer: Richardson; Capital Defence, Edinburgh

Respondent: MacSporran AD; Crown Agent

27 October 2011

[1] The complainers are indicted in the Sheriff Court in Glasgow on a long and detailed charge of fraud. At the first diet on 10 May 2011 the indictment was deserted pro loco et tempore and the 12 month time bar was extended to midnight on 31 December 2011.

[2] The evidence which the Procurator Fiscal intends to present includes material recovered in a search of a house at 70 Thrashbush Road, Wishaw occupied by the first complainer. The search was carried out in terms of a warrant granted by the Sheriff at Glasgow on 4 August 2008. The petition of the Procurator Fiscal craving the warrant proceeded on the basis that the first complainer, whilst acting with others, had carried on a fraudulent scheme to obtain funds held by the sheriff clerk at Glasgow in relation to estates of the late Joni McPherson-Smith and Bessie Laver Robertson. Having heard from an officer of Strathclyde Police and being satisfied that there were reasonable grounds for believing that material of relevance to the respondent's investigation could be found within the premises occupied by the first complainer at Wishaw, the Sheriff granted the warrant. On 9 May 2011 in the case of the second complainer, and on 13 June 2011 in the case of the first complainer, Bills were presented to this Court seeking suspension simpliciter of the warrant on the ground that the Sheriff lacked jurisdiction to grant it because the premises in question lay outwith his sheriffdom and that the authority to search granted to "Detective Constable Ian Blair of Strathclyde Police or other officers of law" to carry out the search did not restrict the authority to officers falling under the jurisdiction of the sheriff.

[3] In Answers lodged on behalf of the respondent it was explained that the fraudulent scheme alleged against the complainers involved conduct within the Sheriffdom of Glasgow and Strathkelvin and that the Sheriff thus had jurisdiction to grant the warrant. The Answers further explained that the warrant was executed by five officers of Strathclyde Police, all then based at the Economic Crime Unit in Glasgow, over all of whom the sheriff had jurisdiction. Before us the argument was confined to the first point, whether the Sheriff had jurisdiction at all to grant the warrant.

[4] Counsel for both complainers, Mr Richardson, advanced three broad propositions in support of the submission that the Sheriff had no jurisdiction to grant the warrant on 4 August: firstly, in order for the warrant to be valid the sheriff granting it must have jurisdiction to do so; secondly, at common law a sheriff's jurisdiction was delimited by the territorial boundaries of the sheriffdom; and thirdly, because of its wording and its legislative antecedents, s. 297(1) of the Criminal Procedure (Scotland) Act 1995 ("1995 Act"), properly construed, does not innovate upon the common law in respect of a sheriff's jurisdiction.

[5] S.297(1) of the 1995 Act provides:

"Any warrant granted by a justice may, without being backed or endorsed by any other justice, be executed throughout Scotland in the same way as it may be executed within the jurisdiction of the justice who granted it."

The term "justice" is defined in s 307(1) of the 1995 Act and includes "sheriff and any stipendiary magistrate or justice of the peace". It was the submission of Mr Richardson that the sheriff had never had jurisdiction to grant a search warrant which would be given effect beyond the territory of his sheriffdom, and that for a valid search to be effected at an address in Wishaw it was necessary for a warrant to be granted by a sheriff at Hamilton. He contended that the effect of s.297(1), authorising execution of warrants outwith the sheriffdom where granted, without backing or endorsement of a sheriff of the sheriffdom where execution was to be affected, was limited to specific circumstances and had no application in general. It applied to a warrant to arrest a person accused of a crime committed in one sheriffdom who had moved to another, but not to a search warrant. The Advocate depute maintained that the sheriff had always had power to grant a warrant for a search to be executed in another sheriffdom in relation to an alleged offence in respect of which he had jurisdiction. Previously the warrant had to be backed or endorsed before it could be validly enforced. The effect of s.297(1) was to remove the need for that additional administrative process.

[6] Mr Richardson mustered various authorities to support his submissions. A number of them related to his first and second propositions. He pointed first of all to Renton and Brown, Criminal Procedure According to the Law of Scotland, 6^th edition, at 5-02 where it is said:

"Any justice may grant warrant to arrest a person charged with a crime committed within his jurisdiction, although the charge is too serious for him to try. Any justice may grant warrant to search premises within his jurisdiction, unless the warrant is sought under a statute which places limits on the person entitled to grant it."

That was supported by Alison, Vol II, Practice of the Criminal Law of Scotland (1883), at page 123 to 124, in remarks which, so far as backing was concerned, applied only to arrest warrants. There he said:

"7. In the execution of his warrant, the officer must not go beyond the bounds where his commission extends; he must acquaint the party with the substance of the warrant, and he must not break open doors until he has notified the errand to those within, and been refused admittance.

The warrant of a judge, of course, is of no legal effect beyond his jurisdiction; and, therefore, unless indorsed or supported by the authority of some judge in the territory into which the criminal has withdrawn, it cannot legally be executed there. If, therefore, he has escaped out of the jurisdiction within which the warrant runs, it must be indorsed by a magistrate within the new jurisdiction, before it can be legally put in force there."

Thus, in Mr Richardson's submission, the process of endorsation and extra-territorial enforcement was confined to arrest warrants relating to fugitives. He had been unable to find any authority to the effect that at common law a search warrant might be endorsed and enforced extra-territorially.

[7] Mr Richardson claimed further support from Shields v Donnelly 2000 JC 46. The issue in that case was whether a justice had jurisdiction to conduct a case relating to offences allegedly committed within the jurisdiction of his court in a courtroom of an adjacent and separate jurisdiction where the complaint had been raised. The Court in its Opinion, delivered by the Lord Justice General (Rodger), considered that, in the absence of direct authority on the point, it was appropriate to look for guidance in comparable areas of law and resorted to Erskine, Institute, I. ii. iii and the proposition there that the whole powers of a judge were confined to the precise limits of the territory of his jurisdiction. That was the starting point on which there had been various statutory innovations, but none gave power to the sheriff to grant a search warrant which would be executed outwith the territory of his jurisdiction. Mr Richardson also referred to McCarron v HM Advocate 2001 JC 199 as reinforcing the point. There the Lord Justice General (Rodger), again delivering the Opinion of the Court, made the same point:

"7. ...As we have pointed out, the jurisdiction of sheriff courts is, basically, territorial - as is indeed made abundantly plain by the detailed delimitation of the bounds of that jurisdiction by reference, for instance, to creeks, shores and anchoring grounds adjoining the sheriffdoms (sec 4(1) of the 1995 Act)."

The point in that case was whether the sheriff court had jurisdiction to try a sexual offence alleged to have taken place in Spain on an indictment which also included an offence committed within the jurisdiction. Mr Richardson further submitted that provisions such as s.4 of the 1995 Act, which defined the boundaries of a sheriff's territorial jurisdiction in great detail, would be unnecessary if extra-territorial effect could be given to orders he made.

[8] The final authority relied upon in support of the second proposition was Dyer, Petitioner 2008 SCCR 192 in which the sheriff (Mitchell) said this at paragraph 5:

"5. As the warrant was sought at common law, I respectfully suggest that it is appropriate to consider the powers of those involved in or with the application. At common law, the respective powers of the sheriff principal, sheriff, procurator fiscal and police officers are each confined to the territory within which each has jurisdiction. In recent times, on occasion, this has been overlooked with unfortunate consequences: see Shields v Donnelly, where the point taken was held to be highly technical but fundamental."

The warrant sought from the sheriff at Glasgow was to authorise a constable of Central Scotland Police, a force not falling under the jurisdiction of the sheriff in Glasgow, to search a house in Polmont, which is outwith the territorial jurisdiction of the sheriff at Glasgow. The Advocate depute would come to rely on this case in particular in support of his submission.

[9] Turning to the third proposition and the historical development of the relevant legislation resulting in s.297(1), we note at the outset counsel's emphasis on the opinions delivered by Lord Rodger and referred to above. He submitted that construing s.297(1) in the context of its legislative antecedents demonstrated that there was no basis for the notion that a warrant pronounced by the sheriff could have effect beyond the territorial limits of his jurisdiction. He made three submissions on the construction of s.297(1): firstly, as a matter of plain construction the sub-section, although apparently applying to all warrants, could only apply to a warrant if it was one to which effect could be given outwith the sheriff's jurisdiction, since it dealt only with the mechanics of enforcement and did not address the question where the warrant could be enforced: secondly, consideration of the legislative antecedents of s.297(1) confirms that the sub-section relates to enforcement and not to jurisdiction; and thirdly, s.297(1) is part of a consolidation Act in which no changes were made to the substantive provisions relating to the sheriff's territorial jurisdiction.

[10] Counsel recognised that his first proposition ran counter to the clear statement of the effect of s.297(1) in Stoddart, Criminal Warrants, 2^nd edition, 1999, at 1.25 where it is said

"As with an apprehension warrant, a search warrant issued by a justice can be executed anywhere in Scotland without backing or endorsation; ..."

However, no authority is cited there to support the proposition. In addressing the legislative antecedents of the provision, counsel drew attention to s.9 of the Criminal Justice (Scotland) Act 1995, which later became, and is in terms identical to, s.297(1) of the 1995 Act, and pointed out that it was "substituted" for each of s.15 (solemn) and s.327 (summary) of the Criminal Procedure (Scotland) 1975. The provision which originally authorised enforcement outwith the sheriffdom without backing or endorsation was s.25 of the Sheriff Courts (Scotland) Act 1838 which clearly applied to arrest warrants. The only change made in 1975 from the situation that pertained in 1838 was deletion of the requirement that the warrant should be executed by a messenger-at-arms or officer of the court where the warrant was issued.

[11] Counsel further submitted that the distinction between the extension of jurisdiction by statutory provision and the authorisation of a means of service or enforcement was illustrated by Berkley v Thompson and Others [1884 5] LR App Cas 45 in which s.4 of the Summary Jurisdiction (Process) Act 1881, which authorised the service and execution of processes in Scotland for an English case and in England for a Scottish case, was held to have no application in cases where jurisdiction depended upon residence within the country where the proceedings had been initiated. Jurisdiction depended upon the existing rules and was not extended by a provision extending the modes and process of service and execution. The reasoning in Barkley was adopted in McQueen v McQueen 1920, 2 SLT 405. The same distinction arose in a divorce action based on desertion where proceedings were validly raised in England but were dismissed for want of jurisdiction over the husband defender - Forsyth v Forsyth [1948] P 125. There was, in the submission of Mr Richardson, no basis for contending that the sheriff ever had power to grant a search warrant that could be enforced outwith his territorial jurisdiction. The 1995 Act could not be the source of such power, since an extension of the jurisdiction of a sheriff could not be effected by a consolidation Act.

[12] In response the Advocate depute readily accepted that s.297(1) did not extend the territorial jurisdiction of the sheriff. He also acknowledged that the police officer or officers to whom authority was given by the warrant must be members of a force within the jurisdiction of the sheriff, as indeed they were. Since a sheriff had no authority to grant a warrant in respect of the investigation of a crime which was not committed within his jurisdiction, a sheriff of the Sheriffdom of South Strathclyde, Dumfries and Galloway at Hamilton could not have granted a warrant to search the premises in Wishaw in this case. Where a crime is alleged to have been committed within the territorial area over which a sheriff has jurisdiction, then the sheriff can grant a warrant which may be executed beyond the boundaries of the sheriffdom. He relied upon passages in Stoddart at paragraph 1.14, Renton and Brown Chapter 5 and Alison II at pages 145 and 146. The general principles applying to search and arrest warrants were essentially the same. A sheriff would thus grant a warrant that required execution outwith the sheriffdom in anticipation that a warrant of concurrence would be endorsed upon it by the sheriff of the jurisdiction of the premises where the search was to take place. S.297(1) dealt exclusively with enforcement and the validity of the execution of the search and thus the admissibility of the fruits thereof. The provisions authorising execution without endorsement simply removed an administrative step in the process and the associated risk that the warrant would not be endorsed and that some technical mistake might occur. Finally, the meaning of s.297(1) was plain; it would be absurd to give it the restricted interpretation proposed by Mr Richardson.

[13] The weakness of the complainers' position is highlighted by two features of the submissions presented by Mr Richardson. Firstly, having founded strongly on the firm statements of the strict limitations on a sheriff's jurisdiction made by the Lord Justice General (Rodger) in Shields v Donnelly and McCarron v HM Advocate, he then tried to apply them to search warrants without addressing the basic question of the source and extent of the authority of a sheriff to grant a search warrant. Secondly, he drew upon cases dealing with subjects quite unrelated to the present, namely Berkley v Thompson and Others, McQueen v McQueen and Forsyth v Forsyth, which provide limited assistance in this case, since the distinction between a statutory provision conferring jurisdiction and one providing for execution of an order of a court is well recognised and not in issue here. The Advocate depute, on the other hand, addressed the core question of the source and extent of the sheriff's authority to grant search warrants and has in our opinion demonstrated clearly that the sheriff in this case did have jurisdiction to grant the warrant in question. A warrant to search involves an intrusion into the freedom and privacy of an individual and is accordingly the subject of judicial authority. The extent of that authority and how it is administered appear to have evolved through judicial practice. In Alison, Vol II, at pages 145 to 147 the position is recorded as at 1833 as follows:

"18. For the recovery of stolen articles, or articles deemed necessary towards completing a precognition, it is competent for the magistrate to grant a search warrant; ...

The great interest which the public have in the detection and punishment of crimes, has led to several relaxations of the ordinary rights and safeguards of individuals in the prosecution of these important objects. One of the most important of these is, the granting of search warrants, a matter of the highest importance, and of every day's occurrence in practice, but concerning which little information is hitherto to be found in our books."

The author proceeds to identify certain differences in practice in England and continues:

"...It seems in short to be a sufficient authority to search for the goods specified, taken on the felonious occasion charged, everywhere, in the same manner as it is sufficient warrant to search for the individual suspected wherever he is to be found...."

There is discussion about the need for specification. However, the important point for this case is that the places that may be searched, "everywhere" apparently, are as diverse and wide ranging as those at which a warrant for arrest might be executed. Other similarities are noted as follows:

"In executing search warrants, the officer has the same powers, and is bound to observe the same precautions, as in executing a warrant for the arrest of an individual. ..."

A clear statement of the principles stated by Alison in practice thereafter and to date is to be found in the report by the sheriff (Mitchell) in Dyer, Petitioner where he said:

"[17] ...the complainer refers to section 297(2) of the Criminal Procedure (Scotland0 Act 1995. I entirely accept that any warrant may without endorsation be served or executed at any place within Scotland by any officer of law. I entirely accept that an officer of Strathclyde Police can execute a warrant to search granted at Glasgow Sheriff Court anywhere in Scotland. In my respectful view, it is helpful to consider the provisions of section 297(1), which was introduced by section 9 of the Criminal Justice (Scotland) Act 1995. Until this provision came into force any warrant granted by a sheriff in Glasgow which required to be executed in, say, Edinburgh involved application being made not only to the sheriff in Glasgow but also the obtaining of a warrant of concurrence from the sheriff in Edinburgh. That procedure is described in the commentary to section 297 in Renton and Brown's Criminal Procedure Legislation at p A - 546/90/2.

[18] The procedure at common law emphasised the local territorial nature of the jurisdiction of the sheriff and in the context of section 297(1) a 'justice' includes the sheriff: section 307(1). Accordingly, until relatively recently the law required an application to two sheriff courts. The former law underlined that, at common law, a police officer could only execute a warrant in another jurisdiction with the permission of a sheriff principal of that other jurisdiction. Section 297(2) covers a variety of situations but its purpose is to remove the need for endorsation."

The issue in the case was that the warrant granted by the Sheriff in Glasgow had to be to a police officer within his jurisdiction and that meant an officer of Strathclyde Police based within the Sheriffdom of Glasgow and Strathkelvin and not an officer of Strathclyde Police based in another sheriffdom.

[14] It can therefore be seen that the familiar, long-standing practice whereby a warrant granted by a sheriff having jurisdiction in the area where an offence allegedly occurred can be executed outwith that sheriffdom has existed since the time of Alison and, judging by the language he uses, for a considerable period prior to that. The practice until 1995 was for the search warrant granted in one sheriffdom to be backed or endorsed by the sheriff of the sheriffdom where the warrant was to be executed. That signified the concurrence of the sheriff of the extra-territorial jurisdiction to the execution of the warrant within that jurisdiction. The cases of Shields v Donnelly and McCarron v HM Advocate related to fundamental issues of jurisdiction of particular courts over particular offences. While the opinions there stress the strict limitations on the jurisdiction of a sheriff, they do not have a bearing on the extent of the jurisdiction of the sheriff to grant search warrants or the extent to which effect might be given outwith the territorial area of his sheriffdom to orders made by the sheriff. Indeed Mr Richardson's submission depended largely on the notion that certain warrants, but not search warrants, could in fact be executed outwith the jurisdiction, thus rather undermining the strength of the point he sought to draw from these cases.

[15] For these reasons we construe the expression "Any warrant" in s.297(1) of the 1995 Act as applying to a search warrant. The extension of the procedure for executing arrest warrants to search warrants did not involve any extension of the jurisdiction of the sheriff. The jurisdiction to grant a warrant enforceable outwith the sheriffdom is of ancient origin. The 1995 Act, a consolidating Act, did no more than remove a formal administrative requirement relating to the process of execution. It did not extend a sheriff's powers That is the extent of the innovation made by s.297(1). It extended the scope for execution without backing or endorsement to warrants other than arrest warrants and accordingly to search warrants. In our opinion the sheriff has jurisdiction to grant a search warrant for execution anywhere in Scotland without backing or endorsation. We shall therefore refuse to pass these Bills.