Wednesday, January 6th, 2016
Michael Stewart v PF Glasgow  HCJAC 13
Claire Mitchell represented the complainer in this bill of suspension. In April 2014, a justice of the peace granted a warrant to search premises occupied by Mr Stewart. He, along with six others, have been changed with contraventions od s.4(3)(b) of the Misuse of Drugs Act 1971 – evidence found during the search is intended to be led.
The complainer questioned the warrant as it was wrongfully granted and incompatible with his human rights, as evidence is not admissible where it is the result of an inadmissible search. The challenge was based in Statements 23 and 4 of the bill of suspension. They stated that the justice of the peace was not given a “comprehensive position… such that a proper consideration of all the information could inform the JP’s decisions.” When granting his decision, the evidence he had available to him was incomplete. On that basis, it was averred in the bill that there should be an evidential hearing to establish whether the information given to the justice of the peace was correct, and then to assess the behaviour of the police. The court should then decide whether the warrant should stand.
It was the Crown’s position that the bill should be refused. Lord Brodie delivered the court’s decision – they were not convinced that the complainer’s averments persuade them to suspend the search warrant. The court is there to on a supervisory basis and not to perform an appellate function. They may only suspend the warrant if the justice of the peace was not entitled to form to decision that he did from the information provided to him.
The justice of the peace followed the proper procedure, in terms of placing persons of interest under oath – in this case, a police officer – and obtaining information to support the provided. “The requirement that a… justice of the peace… be satisfied as to the requisite suspicion is an important safeguard against arbitrary search: Birse v MacNeill.” Reasonable suspicion and full proof are not the same thing.
The court did not exclude the possibility of an evidential hearing, but the case was not appropriate. The averments here are insufficient to make a case that the justice of the peace was not entitled to grant the warrant that he did. The court would only have been able to suspend the warrant if the bill had set out to show that no reasonable justice of the peace would have granted it in the circumstances. The bill took the form of criticisms of the information provided to the justice of the peace.
Lord Brodie assessed that the evidential hearing would be for exploring further issues, which is not acceptable as the “criminal procedure does not, and indeed should not, provide for such a second-guessing of the decision by a justice of the peace”. There was no evidence that the police mislead the justice of the peace with erroneous information.
The court refused to pass the bill of suspension. A copy of the Court's Opinion can be found here.