Clarification of whether and when the admissibility of evidence seized under a valid search warrant may be competently challenged by preliminary issue minute, rather than bill of suspension, has been given by the Criminal Appeal Court in a five judge decision issued today.

In an opinion delivered by Lady Dorrian, the Lord Justice Clerk, the court distinguished the situation where the challenge is to the warrant itself, from that where the actings of the police or Crown before or after the granting of the warrant are called in question. In the former case, the appropriate course was to adopt a bill of suspension; in the latter, the challenge might be made and resolved by minute under s 71 of the Criminal Procedure (Scotland) Act 1995.

The decision was given in an appeal by a man, AS, charged with drugs offences. A preliminary issue minute on his behalf did not attack the validity of the search warrant obtained, but contended that the evidence so obtained was inadmissible on the basis of actings by the police before they had sought the warrant.

A question had been raised whether Allan v Tant (1986) had been correctly decided. The court (The Lord Justice General, Lord Justice Clerk, Lords Brodie, Bracadale and Turnbull) agreed with submissions ultimately presented on both sides that it had been, but had to be understood in context. Whereas the court had said that the sheriff could not "go behind the warrant", it meant he could not in effect review the original decision to grant the warrant. It did not mean that the question of validity of the warrant determined the admissibility of any evidence seized under it where the objection to admissibility was based on factors unrelated to validity.

In other words, when that case was properly understood the issue of validity of a search warrant could be separated from the question of admissibility of evidence obtained thereunder.

"Where the challenge to the warrant is one which directly relates to the actings of the judicial office holder in granting it – for example that it was incompetent to grant such a warrant, or that the information upon which it is agreed he proceeded could not suffice to meet the test for granting the relevant warrant, the appropriate course to adopt is a bill of suspension", Lady Dorrian said.  "However, where it is accepted that the judicial office holder was entitled to grant the warrant on the basis of the information placed before him, but it is argued that actings of the police or the Crown before, or even after, the granting of the warrant mean that it would be unfair to admit the evidence, that is a challenge which may be made and resolved by s 71 procedure."

She continued: "There is a clear legislative intention behind s 79 and associated sections of the 1995 Act that as far as possible, issues of admissibility should be determined in advance of trial. The court in which the trial is to be held, and which will be case managing the matter in preparation for trial, is the one best placed to determine the issue of admissibility of the evidence."

In the present case, findings that the police inspector considered (with reason) the situation to be one of urgency and that it would take several hours to obtain a warrant, justified him in acting as he did, and the appeal should be refused.

Click here to view the opinion of the court.