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Ex Parte Granada Television Ltd.
(On Appeal from a Divisional Court of the Queen's Bench Division)
HOUSE OF LORDS
Lord Browne-Wilkinson Lord Cooke of Thorndon Lord Hope of Craighead
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
MANCHESTER STIPENDIARY MAGISTRATE AND THE LORD ADVOCATE (APPELLANTS)
EX PARTE GRANADA TELEVISION LTD. (RESPONDENT)
(ON APPEAL FROM A DIVISIONAL COURT OF THE QUEEN'S BENCH DIVISION)
ON 14 DECEMBER 1999
I have read in draft a copy of the speech of my noble and learned friend Lord Hope of Craighead. For the reasons which he gives I would allow the appeal.
LORD COOKE OF THORNDON
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hope of Craighead. For the reasons given by him, I would allow the appeal.
LORD HOPE OF CRAIGHEAD
When a constable of a Scottish police force wishes to obtain a search warrant he makes a report to the procurator fiscal, who in Scotland is the public prosecutor. This is because in Scotland applications to the courts of summary jurisdiction in criminal matters are made by the procurator fiscal, not by the police. Once the case has been reported to the procurator fiscal, it is the procurator fiscal who has charge of the case. The police act thereafter on his instructions in all matters regarding the investigation and prosecution of any offence. More often than not the offence which is under investigation is a common law offence, because many of the offences which are most commonly prosecuted in the Scottish courts, such as assault, breach of the peace and theft, are common law offences. And it is normal for the court of summary jurisdiction in Scotland, when it grants a search warrant, to do so in the exercise of common law powers. The exercise of statutory powers may be necessary or desirable in cases where it is believed that a statutory offence has been committed. But, unless the court is directed to the contrary by statute, the power to grant search warrants is regulated by the common law.
The system which I have described works perfectly well in Scotland. But, as the present case demonstrates, difficulties may arise when the procurator fiscal wishes to obtain a warrant for the search of premises which are situated outside the jurisdiction of the Scottish courts.
On 23 February 1998 the procurator fiscal applied by petition under the Criminal Procedure (Scotland) Act 1995 in the Sheriff Court of Glasgow and Strathkelvin at Glasgow for the granting of a warrant to search premises in England. He asked the sheriff to grant a warrant to Detective Sergeant Cameron Cavin of Strathclyde Police to search the premises occupied by Granada Television at Quay Street, Manchester and to secure and take possession of any evidence material to the investigation of a crime which was alleged to have been committed in Glasgow. He averred in his petition that he had received information that between 21 January 1994 and 6 April 1994 a woman had been culpably and recklessly infected with the Acquired Immune Deficiency Syndrome (AIDS), that in a recording of a programme which had been broadcast by Granada Television on 17 March 1997 the interviewee was alleged to have admitted having unprotected sexual intercourse with the woman in the knowledge that he was infected with the HIV virus and that there were reasonable grounds for believing that evidence material to the investigation of the crime, and in particular the identification of the interviewee, was in the possession of Granada Television on its premises in Manchester.
On the same day, after hearing evidence from Detective Sergeant Cavin as to the truth of these averments, Sheriff Laura Duncan made an order in these terms:
On 26 February 1998 Mr. Alan Berg, a stipendiary magistrate for Greater Manchester, signed the following endorsement to the warrant under section 4 of the Summary Jurisdiction (Process) Act 1881:
Acting on instructions from the Procurator Fiscal, the officers of Strathclyde Police did not seek to enforce the warrant in Manchester immediately. Instead they drew the existence of the warrant to the attention of Granada Television with a view to obtaining their co-operation in identifying the interviewee. But Granada refused to co-operate with them on the ground that they had not been released from their undertaking of confidentiality to the interviewee. They also maintained that the warrant was invalid and unenforceable. On 8 June 1998 they were granted leave to apply by way of judicial review for an order to quash the endorsement of the warrant by the stipendiary magistrate. On 16 October 1998 their application for judicial review was granted by the Divisional Court (Brooke L.J. and Sedley J.)  2 W.L.R. 460, which quashed the endorsement and certified the following question as raising a point of law of general public importance:
As Sedley J. observed in the Divisional Court, at p. 461F-G, the application raises significant and difficult questions about cross-border criminal process in the United Kingdom. The Union Agreement of 1707, commonly known as the Treaty of Union, united the kingdoms of England and Scotland "into one kingdom by the name of Great Britain": Union with Scotland Act 1706 (6 Anne, c.11), Article I. But, as Professor A.E. Anton, Private International Law (2nd edition, 1990), p.7 has pointed out, far from ensuring the questions of international law would no longer arise between England and Scotland, the Treaty of Union ensured that they would arise by preserving intact the Scottish legal system and the courts which administered it: see Articles XVIII and XIX. In Stuart v. Moore (1861) 4 Macq. 1, 49 Lord Campbell L.C. said:
Shortly after the Union it was established that a right of appeal lay in civil matters from the Court of Session to the House of Lords. But the High Court of Justiciary, which is the supreme criminal court in Scotland, is unique among the superior courts of the United Kingdom in that its decisions are not subject to appeal to this House: Mackintosh v. Lord Advocate (1876) 3 R.(H.L.) 34. In the result the system of criminal law which operates in Scotland has remained entirely separate from that of England. Prior to the coming into force of the Scotland Act 1998 on 1 July 1999 legislation relating to Scottish criminal law and procedure was dealt with by the United Kingdom Parliament. But even that matter has now been devolved to the Scottish Parliament. Thus, although there is now much common ground between England and Scotland in the field of civil law, their systems of criminal law are as distinct from each other as if they were two foreign countries.
Two aspects of the system of criminal law which exists in Scotland are relevant to this appeal. The first is that much of that system is still based on the common law as developed by decisions taken by Scottish judges in the High Court of Justiciary. A large number of the crimes which are prosecuted in the criminal courts of Scotland, both on complaint and on indictment, are common law crimes. For example, the act of causing harm by culpable and reckless conduct which is alleged to have been committed in this case is said to be a common law crime under Scots law. Also, although much of the procedure of the courts of criminal jurisdiction in Scotland is regulated by the Criminal Procedure (Scotland) Act 1995, the powers which the judges in these courts exercise are for the most part common law powers. Unless limited or extinguished by statute, the powers which are available to the judges to grant search warrants are those of the common law: Watson v. Muir, 1938 J.C. 181; Normand, Complainer, 1992 S.L.T. 478.
The second aspect is that the entire system for the investigation and prosecution of crime in Scotland is in the hands of the public prosecutor. Overall responsibility for the investigation and prosecution of crime rests with the Lord Advocate. He presides over a system which is operated on his behalf in the sheriff and district courts by the procurator fiscal. The functions and powers of the procurator fiscal long pre-dated the inception of police forces in Scotland. So, while there is a close working relationship between the prosecutor and the police, the police remain subject to the control of the procurator fiscal: Stair Memorial Encyclopaedia, vol. 17, Procedure, para. 615. Moreover the organisation and administration of the police forces in Scotland is entirely separate from that in England and Wales. The principal enactment for Scotland is the Police (Scotland) Act 1967.
In practice the police carry out most of the preliminary inquiries themselves without reference to the procurator fiscal. But they have no authority to initiate prosecutions in their own name. Section 17(1)(b) of the 1967 Act provides that it shall be the duty of the constables of a police force, where an offence has been committed, to take all such lawful measures and make such reports to the public prosecutor as may be necessary for the purpose of bringing the offender with all due speed to justice. If the police consider that a crime has been committed or if they wish to obtain a warrant to enable them to conduct further investigations into an alleged crime, they must submit a report to the procurator fiscal. The application for a search warrant is made to the court by the procurator fiscal: Stoddart, Criminal Warrants (1991), para. 1.03. Once the procurator fiscal has taken charge of the case the police are bound by statute to obey his instructions: Police (Scotland) Act 1967, section 17(3) proviso.
Section 18 of the Police (Scotland) Act 1967, as amended by paragraph 17 of Schedule 13 to the Local Government etc. (Scotland) Act 1994, which extends to the whole of Great Britain (see section 52(2)). It is an exception to the general rule that warrants granted by a court on one side of the border between England and Scotland cannot be enforced on the other side of the border on the authority of that court. It provides that it shall be lawful for any constable appointed for any one of the border counties of England or the border areas of Scotland, that is to say the counties of Northumberland and Cumbria and the areas of Lothian and Borders and Dumfries and Galloway, to execute a warrant for arrest or for the recovery of property alleged to have been stolen in the border counties or areas on either side of the border. But, subject to that exception, a Scottish judge has no jurisdiction to grant a warrant which will be enforceable by a constable on his authority in England, and an English judge has no jurisdiction to grant a warrant which will be enforceable by a constable on his authority in Scotland.
On the other hand it has for a long time been recognised that the public interest requires that the authorities on either side of the border within the United Kingdom should co-operate with each other as much as possible, and with the minimum of formality, in the investigation and prosecution of crime. It was for that purpose that section 4 of the Summary Jurisdiction (Process) Act 1881, respecting the service of process of the courts of summary jurisdiction in England and Scotland, was enacted. Arrangements were already in force under section 14 of the Indictable Offences Act 1848 (11 & 12 Vict. c. 42) for the transfer of offenders between England or Wales or Ireland and Scotland by the backing of warrants issued in any of the other three countries in a Scottish court. In the international field a similar system is now in place for the transfer of offenders between the United Kingdom and Ireland under the Backing of Warrants (Republic of Ireland) Act 1965, with reciprocal provisions in Ireland under Part III of the Extradition Act 1965: In re Gilligan  3 W.L.R. 1244 And various provisions to enable the United Kingdom to co-operate with other countries in criminal proceedings and investigations, including the mutual service of process and the mutual provision of evidence, were introduced by the Criminal Justice (International Co-operation) Act 1990.
The leading provision of section 4 of the 1881 Act is in these terms:
The procedure to be followed by the endorsing court is described in the following sub-paragraph:
The form which is set out in the Schedule is headed "Indorsement in backing a process". The form of endorsement which was used in the present case follows closely the form which is set out in the Schedule. The process of endorsement has been described as a purely ministerial or administrative one, as all the judge in the endorsing court has to do is to verify the signature of the person in the court of the other country which issued the process: Murphy v. Brooks, 1935 J.C. 11. But it is an important step, because without it the process would not be capable of being executed in the country other than that in which it has been issued. Its effect is that the process is capable of being served and executed in the jurisdiction of the endorsing court in the same way as if it had been issued in that court.
Section 9 of PACE
Among the many changes to the law which were introduced by the Police and Criminal Evidence Act 1984 were those set out in Part II of the Act relating to powers of entry, search and seizure in the execution of search warrants. Section 8 gives power to a justice of the peace, on an application made by a constable, to issue a search warrant where he is satisfied that there are reasonable grounds for believing that a serious arrestable offence has been committed and that there is material on premises specified in the application which is likely to be of substantial value to the investigation of the offence. But the power does not apply where the material consists of or is likely to include items subject to legal privilege, excluded material or special procedure material: section 8(1)(d). The expressions, "legal privilege", "excluded material," "special procedure material" and "serious arrestable offence" are all defined in the Act: see sections 10, 11, 14 and 116 respectively. The definition which is of particular relevance to this case is that of "excluded material", which comprises personal records, human tissue fluid and "journalistic material which a person holds in confidence": section 11(1)(c). "Special procedure material" is material acquired or created in the course of any trade, business, profession or other occupation which is held subject to an express or implied undertaking to hold it in confidence.
Section 9 of the Act is in these terms:
An application under Schedule 1 must be made to a circuit judge and it is made inter partes. There are two sets of access conditions. The first, which is set out in paragraph 2 of the Schedule, is appropriate for applications which involve special procedure material. The paragraph does not apply if the material consists of or includes excluded material: sub-paragraph (a)(ii). Two of the access conditions which apply in this case are the same as those which are set out in section 8. The circuit judge must be satisfied that there are reasonable grounds for believing that a serious arrestable offence has been committed, and that there is material on premises specified in the application which is likely to be of substantial value to the investigation in connection with which the application is made. He must also be satisfied that other methods of obtaining the material have been tried without success: paragraph 2(c). The second set of access conditions, which is set out in paragraph 3 of the Schedule, applies to applications for excluded or special procedure material which would, but for section 9(2) of the Act, have been the subject of an application for a warrant under other statutory powers. Paragraph 3 provides:
It is to be noted that the constable does not have to show under the second set of access conditions that the offence is a serious arrestable offence or that other ways have been attempted of securing the material. The only criterion is that the issue of a warrant is "appropriate".
The issue between the parties
The issue which has given rise to this litigation relates to the endorsement of the warrant which was granted by the Sheriff in Glasgow by the stipendiary magistrate for execution at Granada's premises in Manchester. The question is whether section 9(2) of the Police and Criminal Evidence Act 1984 has disapplied section 4 of the Summary Jurisdiction (Process) Act 1881, so as to preclude the endorsement and execution in England of a search warrant issued in Scotland so far as it relates to excluded material and special procedure material. In the Divisional Court Granada argued that the Criminal Procedure (Scotland) Act 1995, under which the warrant had been issued, was not a "Summary Jurisdiciton Act" as defined in section 8 of the 1881 Act so there was no power to issue a warrant under the 1995 Act for cross-border endorsement. The Divisional Court rejected that argument, and it was not renewed before your Lordships in this appeal.
The question whether section 9(2) of the 1984 Act has disapplied section 4 of the 1881 Act is difficult to answer because section 9(2) does not list the Acts to which it applies. Some assistance is to be found in section 120(1) which provides that, subject to the following provisions of that section none of which mention sections 8 or 9 or Schedule 1, "this Act extends to England and Wales only." It is clear that Part II of the 1984 Act is concerned with powers of entry, search and seizure which are to be exercised in England and Wales only. Acts relating to these matters which apply only in Scotland are not affected by section 9. But the 1881 Act applies to both England and Scotland, and section 4 is concerned inter alia with the procedure which must be adopted in England where a warrant has been issued in Scotland with a view to its service and execution in England. In so far as it extends to the English procedure, section 4 of the 1881 Act must be read together with section 9(2) of the 1984 Act. So it is necessary to look more closely at the language of section 9(2) in order to see whether it has the effect for which Granada contend of precluding the endorsement of warrants issued in Scotland for execution in England in relation to excluded material and special procedure material.
The point is an important one because section 134 of the Criminal Procedure (Scotland) Act 1995 makes no distinction between categories of material. There is no separate procedure for obtaining a search warrant for what in England or Wales would be excluded material or special category material. The system which was laid down for England and Wales in Schedule I to the 1984 Act has not been adopted in Scotland. Items which fall within the definition of "legal privilege" in section 10 of the 1984 Act are protected in Scotland by the common law rule that professional communications between solicitor and client are confidential: Walkers, Law of Evidence in Scotland (1964), p. 413. But there is no common law rule which protects excluded material or special procedure material.
The critical words in section 9(2) which determine the extent of its application to Acts under which a search of premises for the purposes of a criminal investigation could be authorised are those which are to be found in the phrase "authorised by the issue of a warrant to a constable". For the Lord Advocate Mr Turner Q.C. maintained that the issue of a warrant and its endorsement are two quite separate acts. The issue of a warrant is a judicial act, whereas the endorsement of a warrant has always been regarded as an act which is administrative or ministerial: Murphy v. Brooks, 1935 J.C. 11; Reg. v. Metropolitan Police Commissioner, Ex parte Hammond  A.C. 810, 837G-838C. A warrant was "issued" within the meaning of section 9 as soon as it had been delivered by the issuing court into the hands of the constable. The process of endorsement by the endorsing court was a separate process which was outside the scope of section 9. Mr Donaldson Q.C. for Granada said that it was the process of endorsement under section 4 of the 1881 Act which gave the authority to the constable to effect a search in England and Wales under a warrant which had been issued in Scotland. The Scottish warrant alone would not provide such authority. So a cross-border warrant could not be said to have been issued within the meaning of section 9 until it had been endorsed. He also submitted that the word "issue" in section 9(2) should be construed in the light of the purpose of that section when read with Schedule 1 to the Act. This was to set out a special mechanism for obtaining access to excluded and special procedure material in England. This was a significant protection. It would, as he put it, be "a gigantic anomaly" if that protection were to be absent in the case of cross-border warrants endorsed under section 4 of the 1881 Act.
The solution to the problem of interpretation which is raised by section 9(2) depends in the first place upon whether the extent of its application is to be determined broadly by concentrating upon the verb "authorised" or is to be determined narrowly by concentrating upon the noun "issue."
On the one hand it can be said that the process of authorisation is incomplete in the case of a cross-border warrant until the warrant has been endorsed in the country where it is to be executed. What section 9(2) contemplates is the granting of authority under a statute for a constable to conduct a search. A constable has not been issued with a search warrant which he can lawfully serve and execute until he has had it endorsed by the court. Until that step has been taken under section 4 of the 1881 Act the search has not been authorised. On the other hand there is force in the argument that, in order to see whether an Act is excluded by section 9(2), one has to look at the provisions of the Act in question to see what it provides for and what can be done under it. On this approach it is legitimate to distinguish between those Acts which authorise the issue of a search warrant to a constable on the one hand, and section 4 of the 1881 Act on the other which uses the word "issue" to describe the act that has already been performed by the issuing court and is concerned only with the procedure of "endorsement" to be performed by the endorsing court. The one feature which is common to Acts which authorise the issue of a search warrant to a constable is that they describe the conditions as to which the judge who issues the warrant must be satisfied before he can issue it to the constable. That feature is absent from section 4 of the 1881 Act. It requires only that the judge in the endorsing court must be satisfied that the signature on the warrant which is before him for endorsement is that of the judge named in the warrant by the issuing court. His function is a ministerial one, and he has no discretion to decline to endorse the warrant once he is satisfied about the signature: Rex v. Kynaston (1800) 1 East 117; Clark v. Woods (1848) 2 Ex. 395.