|Judgments - Regina v. Manchester Stipendiary Magistrate and the Lord Advocate|
Ex Parte Granada Television Ltd.
(On Appeal from a Divisional Court of the Queen's Bench Division)
On balance I think that the better argument is that which concentrates on the word "issue", and on the fact that the only step in process which is dealt with in section 4 of the 1881 Act is the endorsement of a warrant which has already been issued in the other court. But the balance is a narrow one, and section 9(2) of the 1984 Act cannot be said to be absolutely free from ambiguity. So it is necessary to look at the implications of the competing arguments.
At first sight there is something to be said for the view that it would be surprising if the protections which section 9 and Schedule 1 were designed to provide in the case of items subject to legal privilege and excluded and special access material were to be unavailable in the case of cross-border warrants which are to be served for execution in England. This was the point to which Sedley J. attached importance in his analysis of the problem, as he made clear in the following passage in his judgment  2 W.L.R. 460, 467B-D:
At p. 467G he went on to add this comment:
But there are a number of propositions in those two passages which require further examination. Is it true that material which is sought for the purposes of a criminal investigation in Scotland can always be sought by a warrant issued in England or Wales? Why is it that a Manchester magistrate could not have issued a warrant for the recovery of such material for endorsement in Scotland? Does this mean that there is no machinery by which a warrant granted in England for the recovery of such material from premises in Scotland can be enforced? In order to answer these questions it is necessary to look more closely at the provisions of Schedule 1 to the 1984 Act.
Schedule 1 to the 1984 Act
The question to which I now turn is whether the system which Schedule 1 lays down is available for the purposes of a criminal investigation which is being conducted in Scotland. If it is, this would support the view that section 9(2) should be read as extending to the endorsement of warrants issued in Scotland under section 4 of the 1881 Act. The fact that an alternative route was available which provided the protection of Schedule 1 would suggest that Parliament intended that it was to be the only route which should be followed for the recovery of excluded and special procedure material for use in connection with an investigation in Scotland. But if it is clear that Schedule 1 cannot be used in connection with investigations which are being conducted there, this would provide a strong ground for taking the contrary view. It would confirm the conclusion which I would be inclined to draw from the wording of section 9(2) of the 1984 Act when read with that of section 4 of the 1881 Act, that the system for the endorsement of cross-border warrants has not been excluded by section 9(2) in regard to excluded material and special procedure material.
The first problem which a Scottish prosecutor would encounter on examining the provisions of Schedule 1 is the fact that it contemplates that the application to the circuit judge will be made by a constable. It is clear both in England and Wales and in Scotland that a "constable" is a person holding the office of constable, not a member of a police force holding the rank of constable: see Lewis v. Cattle  2 K.B. 454; Police Act 1964, section 18; Police (Scotland) Act 1967, section 16. So far there is no difficulty. But, as I mentioned earlier, the functions of the police in regard to the investigation and prosecution of crime in the two countries are not the same. In Binnie v. Donnelly, 1981 J.C. 92 it was held that the powers conferred on a constable by section 8(2) of the Road Traffic Act 1972 were exercisable by a constable in uniform in any part of the United Kingdom. But unless an enactment confers wider powers upon him, a constable of a Scottish police force only has the powers and privileges of a constable when he is in Scotland: Police (Scotland) Act 1967, section 17(4).
Then there is the point that in Scotland applications to a court for the granting of a warrant are made by the procurator fiscal, under whose instructions investigations with a view to the prosecution of crime are conducted, and not by a constable. If the provisions of Schedule 1 were intended to be available for use by the procurator fiscal, one would have expected it to have been provided that, in the case of investigations which were proceeding in Scotland, an application for an order under that Schedule was be made to the circuit judge by or on the authority of the procurator fiscal and not by a constable. One would also have expected some provision to be made for the transmission of the material recovered under that Schedule out of the jurisdiction of the English courts and into the hands of the Scottish prosecutor.
The next problem arises with regard to the first set of access conditions. The first thing about which the circuit judge must be satisfied is there are reasonable grounds for believing that a serious arrestable offence has been committed. The definition of the expression "serious arrestable offence" is to be found in section 116 of the 1984 Act. That section, which applies to England and Wales only, requires to be read together with Schedule 5 to the Act. The list of common law offences in Part I of that Schedule is a list of offences under English law: see, for example, the word "manslaughter." No mention is made in the Schedule of the equivalent Scottish offence of culpable homicide. The list of statutory offences in Part II of the Schedule includes the Sexual Offences Act 1956, which extends to England and Wales only. It does not mention the equivalent Scottish Act, which at the time when the 1984 Act was enacted was the Sexual Offences (Scotland) Act 1976. It is clear that the expression "serious arrestable offence" was designed for use in connection with offences alleged to have been committed in England and Wales only, not offences alleged to have been committed in Scotland. So the first set of access conditions cannot be used to assist the Scottish prosecutor in the investigation of an offence which is alleged to have been committed in Scotland.
The second set of access conditions does not give rise to the same difficulty, as the constable does not need to show that the offence is a serious arrestable offence. But there is room for considerable doubt as to whether a circuit judge sitting in England would be in a position to form a judgment on the matters to which he is required to address his mind by the conditions which are set out in sub-paragraphs (b) and (c) of paragraph 3 in regard to an investigation into an offence alleged to have been committed in Scotland. The powers to grant search warrants which the Scottish prosecutor normally asks the Scottish courts to exercise are, as I have said, common law powers. There are various statutory powers, but they are less extensive than those which are available in England. In the present case the Sheriff granted the warrant in the exercise of common law powers. This situation is difficult to reconcile with sub-paragraph (b), which requires the circuit judge to consider whether a search of the material could have been authorised under any enactment.
It is normal for enactments which authorise the issue of a search warrant to describe the circumstances in which the statutory power to issue the warrant can be exercised: e.g., Theft Act 1968, section 26(1) and (3), which requires there to be reasonable cause to believe that a person has any stolen goods in his custody or possession or on his premises. But the question in sub-paragraph (b) cannot be answered simply by examining section 4 of the 1881 Act. This is because the procedure which that section lays down is concerned only with endorsement of the warrant by the endorsing court. It makes no reference to the circumstances in which the power to issue the warrant could be exercised by the issuing court. And in this case the warrant was issued by the sheriff under common law powers, not those conferred by any enactment. Difficult questions would also be likely to arise under sub-paragraph (c) as to whether the issue of such a warrant would be appropriate, as the circuit judge would have to have regard to questions of Scots law relating to the nature and elements of the alleged crime and to the Scots law of criminal procedure and evidence.
For these reasons I think that it must be concluded that the provisions of Schedule 1 are not available to the Scottish prosecutor for the investigation of offences alleged to have been committed in Scotland. If Granada are right, it would follow that there is no mechanism for the obtaining of a search warrant by a Scottish prosecutor for execution in England in regard to excluded and special procedure material. This is in contrast to the position which now exists in regard to the provision of assistance to the investigating and prosecuting authorities in all overseas jurisdictions, including Ireland, under the Criminal Justice (International Co-operation) Act 1990.
Section 7(1) of the 1990 Act provides that Part II of the 1984 Act (powers of entry, search and seizure) shall have effect as if references to serious arrestable offences in section 8 of and Schedule 1 to that Act included any conduct which is an offence under the law of a country or territory outside the United Kingdom and would constitute a serious arrestable offence if it had occurred in any part of the United Kingdom. As Scotland is part of the United Kingdom, the Scottish prosecutor is unable to take the benefit of that provision. There is no other provision in any enactment to which he can turn for assistance. It is obvious that investigations into offences committed in Scotland which required the recovery of excluded material or special procedure material would be severely prejudiced if there was no means by which a warrant could be obtained for its recovery. Such a result would be contrary to the practice which Parliament has followed, in the interests of mutual co-operation in criminal matters between the three jurisdictions within the United Kingdom, for many years: for a recent example of this, see Part X of the Criminal Justice and Public Order Act 1994. It may appear to be unsatisfactory that a party in possession of excluded material or special procedure material in England has no protection against the recovery of such material from his premises under a Scottish search warrant for use in a criminal investigation in Scotland, other than the procedure which is available in Scotland for challenging warrants in the High Court of Justiciary by means of a bill of suspension at common law. But it was for Parliament to provide the protection if such protection was thought to be necessary, and it has not done so.
Endorsement in Scotland of English warrants
As for the position the other way, the reason why the Manchester stipendiary magistrate could not issue a warrant for endorsement in Scotland for the issue of excluded and special protection material is that, under section 9 of the 1984 Act, an application for such a warrant would have to be made to a circuit judge. The question whether a warrant by a circuit judge under Schedule 1 to the 1984 Act could be endorsed by a judge sitting in Scotland under section 4 of the 1881 Act is a question for determination in Scotland by the High Court of Justiciary. It would depend upon whether in its view a circuit judge, when issuing such a warrant, was a court of summary jurisdiction within the meaning of that Act. The question has never arisen for decision in a Scottish court. But a negative answer to that question would not mean that endorsement could not be given in Scotland. This is because the High Court of Justiciary may be able to endorse the warrant in the exercise of its common law power under the nobile officium to prevent injustice where a statute lacks the machinery which is needed for carrying out the intention of Parliament: see for example Sloan, Petitioner, 1991 S.L.T. 527.
This means that, if Granada's interpretation of section 9(2) is right, there would be an even greater anomaly than that contended for by Mr. Donaldson. Warrants for the recovery of excluded and special protection material could be obtained in England for searches in Scotland in connection with investigation into crimes alleged to have been committed in England. But they could not be obtained in either England or Scotland for searches in England in connection with crimes committed in Scotland. Very clear language would be needed to show that Parliament intended to create such an anomaly. I cannot accept that section 9(2) has that effect. It makes no reference to these cross-border problems, and no provision is contained anywhere else in the 1984 Act which suggests that this was the intended result of the legislation which was being enacted.
I would hold that section 9(2) of the 1984 Act does not preclude the endorsement under section 4 of the 1881 Act of a warrant issued in Scotland for the search of material in England which includes or may include excluded material or special procedure material.
For these reasons I would allow the appeal, answer the certified question in the negative and dismiss the application