Bills of suspension against incidental warrants such as a warrant to take fingerprints are still for the High Court rather than the Sheriff Appeal Court to deal with, appeal judges have ruled.

Lady Dorrian, Lord Bracadale and Lord Malcolm in the Criminal Appeal Court ruled that they had jurisdiction to hear a bill of suspension by Kyle McWilliam against a warrant to take his fingerprints in relation to a charge of theft by opening a lockfast office in the multi-occupancy property where he resided.

Lord Bracadale, who delivered the opinion of the court, said a preliminary question had come up as to whether jurisdiction in such matters had now been transferred to the Sheriff Appeal Court, which now had all the former powers of the High Court "so far as relating to appeals from courts of summary criminal jurisdiction".

Bills of suspension against conviction had now to be taken to the Sheriff Appeal Court, but the decision to grant incidental warrants, such to take samples or to search, was an administrative act. "In granting such a warrant the sheriff is not sitting as a court", he stated. "A bill to suspend such a warrant does not constitute an appeal from a court of summary jurisdiction. Thus, it is clear that a bill to suspend a warrant of the kind granted in the present case does not come within the ambit of s 118 of the [Court Reform (Scotland) Act 2014] and is not included in the transfer of powers to the Sheriff Appeal Court. Such bills remain subject to the supervisory jurisdiction of the High Court."

The warrant had been sought after a trial diet had been adjourned because of the arrest of a co-accused. The availability of fingerprint evidence had only become known shortly before the diet and the Crown had decided it was to late to do anything about it; but after the adjournment it decided to seek the warrant. 

The accused argued that special circumstances had not been shown for taking the prints after the commencement of proceedings, and that the Crown had been at fault. There was insufficient evidence to proceed without the prints.

However the court accepted that the Crown had considered it had sufficient evidence; that the police officer who had taken the fingerprints at the locus had not sent them on via the forensic science gateway, as was normal, and so there was a special circumstance such that the Crown would not have become aware of them had it enquired; and the sheriff had properly exercised his discretion taking into account considerations such as the non-invasive nature of the procedure and the absence of prejudice to the complainer. The bill was refused.

Click here to view the opinion of the court.