R v Manchester Stipendiary Magistrate, Ex p Granada Television Ltd

Police and Criminal Evidence Act 1984, section 9(2), does not prevent an English court from endorsing under section 4 of the Summary Jurisdiction (Process) Act 1881 a Scottish search warrant covering excluded or special procedure material. Section 9(2) concerns enactments authorising the issue of warrants. Section 4 governs the distinct, ministerial act of endorsing a warrant already issued.

Schedule 1 to the 1984 Act is not available to a Scottish prosecutor investigating an offence committed in Scotland. Clear language would be required before Parliament could be taken to have removed the only available mechanism for obtaining such material in England.

A procurator fiscal investigating an alleged common law crime in Scotland obtained a sheriff's warrant to search Granada Television's Manchester premises for material identifying a confidential interviewee. A Manchester stipendiary magistrate endorsed the warrant under section 4 of the Summary Jurisdiction (Process) Act 1881.

The Divisional Court, Brooke LJ and Sedley J, granted Granada's application for judicial review and quashed the endorsement: [1999] 2 WLR 460. It certified whether section 9(2) of the Police and Criminal Evidence Act 1984 disapplied section 4 of the 1881 Act in relation to excluded and special procedure material. The Lord Advocate and the stipendiary magistrate appealed.

1. Appeal allowed unanimously. Lord Hope of Craighead delivered the leading speech. Lord Browne-Wilkinson, Lord Cooke of Thorndon, Lord Saville of Newdigate and Lord Millett agreed with his reasons. The certified question was answered in the negative, the Divisional Court's order was reversed and Granada's application was dismissed.

2. Per Lord Hope, section 9(2) of the Police and Criminal Evidence Act 1984 did not preclude endorsement under section 4 of the Summary Jurisdiction (Process) Act 1881 of a Scottish warrant to search premises in England for excluded or special procedure material. Section 9(2) was directed to an Act under which a search could be authorised by the issue of a warrant. Section 4 dealt only with endorsement of a warrant already issued by the Scottish court.

3. The issuing court determines whether the conditions for a warrant exist. By contrast, an endorsing court verifies the issuing judge's signature. Its function is ministerial, and it has no discretion to refuse endorsement once the signature is proved. The warrant then becomes executable within the endorsing court's jurisdiction as if issued there.

4. Per Lord Hope, Schedule 1 to the 1984 Act was not available to a Scottish prosecutor investigating an offence committed in Scotland. It contemplated an application by a constable, while Scottish applications were made by the procurator fiscal. Its first access conditions employed the England-and-Wales concept of a serious arrestable offence. Its second conditions contemplated an enactment authorising the warrant, whereas Scottish courts commonly exercised a common law power.

5. Granada's construction would therefore leave a Scottish prosecutor without any mechanism for obtaining excluded or special procedure material in England. That would seriously impede Scottish criminal investigations and conflict with Parliament's established policy of cross-border co-operation. Very clear language would have been required to produce that anomaly. Section 9(2) contained no such language.

1. House of Lords: The appeal was allowed unanimously. The certified question was answered in the negative, the order quashing the endorsement was reversed and the judicial review application was dismissed: [1999] UKHL 51.

2. Divisional Court of the Queen's Bench Division: Brooke LJ and Sedley J granted judicial review, quashed the stipendiary magistrate's endorsement and certified a point of law of general public importance: [1999] 2 WLR 460.