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Cite as: [2005] ScotCS CSOH_35, [2005] CSOH 35

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ICL Plastics Ltd & Ors, Re Application Judicial Review [2005] ScotCS CSOH_35 (11 March 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 35

P918/04

OPINION OF LORD McEWAN

in the petition of

ICL PLASTICS LIMITED and OTHERS

Petitioners:

for

JUDICIAL REVIEW

 

________________

 

Petitioner: M Jones, Q.C., Springham; HBM Sayers

Respondent: P Cullen, Q.C., Ms Crawford; Lindsey Nicoll, Solicitor for Scottish Executive

(for first and second respondents)

11 March 2005

Introduction

[1]      In May 2004 in Maryhill, Glasgow a factory collapsed. The cause is as yet unknown but a number of persons were killed and many injured. The place was sealed off and the appropriate authorities began to investigate. Out of this unmitigated tragedy the action before me has arisen. I heard the case first in July and thereafter on two days in October and again in November. By then the pleadings of the parties had undergone amendment and a Record was made available at my request. Finally the case was concluded in December.

[2]     
The Petition and Answers now on Record can be summarised thus. The narration of fact sets out the explosion, the consequences and the claims made and how property was then removed by the Respondents for examination. The replies for the Respondents set out in some detail the extent of the damage and what access the Petitioners have already had (Answers 3 and 4). In Statement 4 the Petitioners made it clear that the reason they want access to their property is to ascertain the cause of the explosion, with a view to settling the claims. The Respondents aver that the Petitioners consented to what the investigation team were doing (9 B/C) and they go on in Answer 4 to make the point that there may be criminal offences arising. The remaining factual averments deal largely with the evidential productions and I will deal later with these in detail. Statement 15 contends, as is admitted, that there was no search warrant asked for.

[3]     
In Statement 17 the Petitioners set out seven reasons when they challenge the Crown actings. The first four of these relate to common law powers and (by implication) the lack of a warrant. Two further are Convention reasons and the last is suggestion of a Wednesbury reason. Statement 18 seeks certain declaratory orders and the pleas-in-law seek reduction and declarator. (In the original Petition para 14 and pleas-in-law interdict was sought. That is no longer an issue.)

[4]     
I was referred to a number of cases which I now list, viz:

Scottish Authorities

Anderson v Laverock 1976 J.C.9

Bell v Black and Morrison (1865) 3 M 1026

Bruce v Linton (1860) 23D, 85

Cordiner Petr. 1973 J.C.16

HMA v Turnbull 1951 J.C. 96

Houston v HMA 1990 S.C.C.R.4

Leckie v Miln 1981 S.C.C.R. 261

Law Hospital N.H.S. Trust v Lord Advocate 1996 SC 301

Milnv Maher 1979 J.C.58

HMA v McGuigan 1936 J.C.16

Montgomery v HMA 2001 SC (PC) 1

Phillips v Steele (1847) 9D.318

R v HMA 2003 S.C.(P.C.) 21

Reynolds v Christie 1998 S.L.T.68

Southern Bowling Club Ltd. v Ross (1902) 4F 405

Shepherd v Menzies (1900) 2F 443

Stewart v Roach 1951 J.C. 96

Wan Ping Nam v Minister of Justice of German Federal Republic 1972 J.C.43

Watson v Muir 1938 J.C. 181

English Authorities

Arias v Commissioner for the Metropolitan Police 1984, Law Society Gazette 2694; The Times, 1 August 1984

Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952

Morris v Beardmore [1981] A.C. 446

R (Reprotech Ltd) v East SussexC.C. [2003] 1 W.L.R.348

R (Rottman) v Commissioner of Police of the Metropolis [2002] 2 AC 692

Regina v Shayler [2003] 1 AC 247

R v Secretary of State for the Home Department (ex parte Daly) [2001] 2 AC 532

R v Director of Public Prosecutions (ex parte Kebilene) [2000] A.C. 326

European Authorities

Allegemeine Gold etc v UK (1986) 9 E.H.R.R. 1

G, S and M v Austria No 9614/81

Jokela v Finland (2003) 37 EHRR 26

Sporrong and Lonnroth v Sweden (1982) 5 E.H.R.R. 35

Vendittelli v Italy (1994) 19 E.H.R.R. 464

X v Netherlands No 7721/76

Text Books

Hume's Commentaries on Crimes

Alison Practice of the Criminal Law of Scotland (1832)

Stair Society Encyclopaedia, Volume 6; and Reissue 4 on Criminal Procedure

Moncrieff The Law of Review in Criminal Cases (1877)

Clyde and Edwards: Judicial Review

Clayton and Tomlinson: The Law of Human Rights

Lester and Pannick: Human Rights Law and Practice

The Submissions

[5]      The initial argument for the petitioners presented in July asked me two questions. The first was whether the Court of Session had jurisdiction to review the decisions of the Procurator fiscal, acting for the Lord Advocate, taken in the context of investigation of a death. Secondly, if there was jurisdiction, did the fiscal have power at common law to exclude the petitioners' representative from the site and to deny access by that representative to the petitioners' property which had been removed from the site. The development of that argument led to the following detailed submissions.

[6]     
While the High Court of Justiciary had supervisory jurisdictions to review criminal matters in Scottish Courts whether by the Courts or the parties the Court of Session had no concurrent jurisdiction on this. In the present case, no crime had been reported, none apparently committed and no proceedings instituted. The dispute was about the fiscal's interference with the petitioners' property rights. That was a delict, could give rise to damages and was not a matter for the High Court. Accordingly, judicial review was competent.

[7]     
The second question sought to identify the limits of the fiscal's powers when she was investigating incidents. These could be no greater than the powers of a constable at common law.

[8]     
The power to search and seize could be catergorised in four ways. Firstly there was power to search with consent of the owner or some other person competent to consent. Secondly, Statute could authorise. Thirdly the Court could authorise by warrant. Fourthly, in neither case two or three, special circumstances could justify. Over all of these the Court had a power of scrutiny, and that had to be applied against the fiscal. Counsel referred me to Montgomery, and to Law Hospital. In Southern Bowling it was assumed without argument that the Court had power to supervise. Crime was not in issue. The same result was seen in Shepherd.

[9]     
The petitioners could not go to the nobile officium as such a procedure would not attract an award of damages. The Criminal Procedure Rules made under the Act of Adjournal and which covered devolution issues were of no help either (Rule 40) since there was no crime and no criminal proceedings. Thus the Convention rights claimed could not be aired in any such process. All of this pointed to the Court of Session having jurisdiction.

[10]     
Counsel then moved to consider the powers of the fiscal. Scottish practice demonstrated the importance of the Court's involvement. Reference was made to R (Rottman) v Commissioner of Police at paragraph 22. In all the examples given there was an accused. Here there was none, so why did the fiscal claim such wide powers. Search without a warrant is a civil wrong save in exceptional cases, and even a consent to search for and take property was not to be equated with depriving the owner of it or access to it. The problem in the present case was that no reason had been given, and the decision has been made without any time limit and not in relation to the circumstances of the case. The fiscal did not have an overall blanket common law power, without going to Court. He referred me to Bell v Black & Morrison at 1028 and 1031. The fiscal's office and her public duty do not protect her from illegal acts. There were no greater or more extensive powers just because the subject matter was a sudden death. The petitioners had some 30 cases to deal with and simply wanted access to their property. They would accept any conditions.

[11]     
Mr Jones then took me to a series of cases beginning with Watson v Muir. He referred me to passages at 184 and stressed that here, unlike in Watson, the refusal of access to the items was not a matter of consent. He relied on the remarks of Lord Moncreiff at 186 concerning examinations. The petitioners could not be refused a right to examine for themselves.

[12]     
Counsel then continued with a series of cases where warrants were involved, this bringing in the involvement of the Court. He looked at Stewart v Roach, especially at pages 2326/8 and 329; HMA v Turnbull at pages 100/102; Leckie v Miln at 264/5 and finally McGuigan v HMA. The English cases have tendered to dwell on the sanctity of the home and have tried to balance the rights of the individual and the police. Morris v Beardmore was cited as an example and reference was made to 455D and 456.

[13]     
In the present case it was a delict to take over the petitioners' premises and tell them to stay out. Without Court or Statutory Authority the power claimed was too wide. The petitioners were not asserting any absolute or unqualified right to enter their property. That was not what was in issue here. The prevention of access was in issue. He referred me to the terms of Article 14 and argued that whatever rights the petitioners had the respondent had no right to allow third parties access.

[14]     
The human rights point was then looked at and counsel referred to R v Secretary of State for the Home Dept (ex parte Daly) to ask the question of whether the fiscal was exercising her right proportionately. The petitioners had rights under Article 1 of Protocol No.1. Any control had to be necessary in the general interest. It could not be disputed that there had been interference. There had to be a fair balance of the petitioners' rights as against the public interest. The public interest was the only reason given and the petitioners did not seek to open up any issue of confidentiality. Sporrong &c v Sweden and Vendittelli v Italy were to referred to as well as Allegemeine Gold v UK and Jokela v Finland at paras. 44, 52 and 53. The problem in the present case was to know how any fair balance had been struck.

[15]     
In all kinds of ways the decision maker had to act within the law. Here there was a lack of clarity about what law applied and what was a proper understanding of it. There were a number of different powers available to apply to the events which had happened. The more time that elapsed the less easy it would be for the petitioners to establish the cause of what had happened. The Health and Safety at Work Act 1974 Section 20 gave powers to inspectors which were very wide. So also were the powers to hold an inquiry under the Fatal Accidents Rules. There was nothing to prevent the respondent from using these rules to hold an inquiry.

[16]     
When the case next came before me some fourteen weeks later, both sides amended and a revised petition in the form of a record was produced. Mr Jones made two further new submissions. Under reference to a letter from the respondent dated 10 September 2004, he said it was clear that the respondent was not acting in her prosecution role but was only investigating sudden deaths. He renewed a reference to Law Hospital at 311. Where only sudden death was involved, the petitioners retained all their civil rights.

[17]     
He further argued that it looked as if the respondent did not want the Petitioners to know what caused the explosion. There was no authority for this attitude except in a criminal investigation where the Court could allow this either by warrant or restraint order; but for these to apply there had to be a criminal petition.

[18]     
In opening for the respondents, Mr Cullen asked me to dismiss the petition as incompetent and as not relevantly averred. He said the Court of Session had no jurisdiction to make any order in the circumstances and even if it had, there was no justification for granting judicial review of any of the respondent's decisions. The Answers clearly set out the position and gave new facts on the state of the fiscal's investigations. He invited a close look at the Answers and I summarise what counsel said.

[19]     
The Answers and the productions showed that this was not just a case of sudden death. It was in the public interest to investigate a major explosion and the possibility of criminal offences. The Court had no power to intervene and question that. There was no authority of any kind for the orders sought here, with or without conditions and the cases founded on by the petitioners had been cited out of context. It was the High Court of Justiciary alone which had powers over matters criminal. In all the circumstances it was hardly surprising that the petitioners allowed the respondent and the other authorities, eg. Police, access to the site. Answer 4 made it very clear that evidence recovered was being filmed and preserved. That protected all relevant interests, and it would not do to have the petitioners conduct a parallel investigation (Answer 9). Since there had been consent there was no need to have in existence any warrant.

[20]     
I was then given some information about the scale of the operation. The premises which date from 1857 were originally a paper mill and are known as Grovepark Mill. The petitioners obtained it in 1968. It contains four storeys and a basement. Plastic coatings and fabrication is done on the ground floor; the first floor is general storage and a canteen; the second is offices, management and sales staff accommodation and the third and fourth are document archives. The basement was used by two handymen. Counsel said these very facts showed that the building was complex and all of the remains of it had to be looked at.

[21]     
The same complexity arose when one took notice of the three separate petitioners. The first petitioner was the holding company of the other two. There were separate directors and in the basement was a self-employed builder with an employee. To look into all of this takes time.

[22]     
Nine people had died. They were employed by all petitioners and the builder. Forty were injured, many seriously. There were lots of potential claimants and several employers. The whole of the rubble had been taken to a designated site to be sifted, examined and logged on computer. Many police officers had taken many hundreds of statements. The Health and Safety Executive were involved. Many tons of paperwork had to be looked at. For all of this the respondent was responsible.

Apart from the paperwork there were 1385 logged productions including in particular fire ovens and the LPG tanks from the yard with pipe-work and fittings. All of this required examination in a laboratory by the H & S E in Sheffield and Buxton. The effects of explosion on a building and heat radiation on clothing were particular subjects of interest. It was thought that the LPG tank did not belong to the petitioners but to "J. GAS". As the investigation was complex and technical it could not be predicted when it would be completed but it was hoped to be early in 2005.

[23]     
There was no pressure from the families of the bereaved and injured for any early settlement. They were not party to the present proceedings. The respondent and the Crown Office had attended all meetings of the Victim Information and Advice Unit. That had been told that the cause could only be found after meticulous scrutiny. The families and victims understood this and were at present not pursuing any civil claims. It was the insurers who wanted a parallel investigation. That showed that the petitioners' interest was secondary. The Law Society had set up a disaster help line group to assist the two firms of acting solicitors.

[24]     
Counsel then turned to look at a number of his documentary productions. Nos.  7/4 and 7/5 of Process showed that there was no disquiet at the interim payments made or to be made. They accepted that the respondent's inquiry had to take precedence. Why then did the petitioners appear to want to look at all the property. The implication of that went beyond the present case. The Crown investigation had to be in private to permit of an independent view. The only real interest was that of the insurers but they had to give way to the public interest. Number 6/3 and 6/4 showed that the respondent was behaving in a reasonable way and balancing all interests. There was no permanent deprivation of property, only control of use in the public interest. Under reference to Nos 6/5 and 6/6, all recent correspondence, counsel argued that these showed the highest traditions of fairness. Evidence would be preserved and the views of others considered. If there was to be interference with that traditional discretion by judicial review a high threshold would have to be crossed and something akin to malice averred. Documents 6/14 and 6/15 showed a criminal investigation was ongoing. That might result in a trial or an F.A.I.

[25]     
It was clear from 6/13 and 6/14 that the insurers' expert wanted to look at the LPG tank and piping. The response to that was 6/18. Clearly there may arise a need for interviews under caution. Any potential suspect should not know in advance the precise nature of the Crown's investigations. That is not in the public interest and is not done in practice. What was proposed here would subvert the established system and could lead to interference with witnesses, loss of confidentiality and eventual chaos. The Crown's inquiry was objective; not so that of the insurers who wanted to look at property not their own. I was asked to look at 6/18 and 6/19 in this context.

[26]     
Mr Cullen then argued in detail that the petition was incompetent. He referred me to passages in certain text books and institutional writers for the proposition that only the High Court could entertain matters criminal and not the Court of Session (Clyde and Edwards: Judicial Review 2.31; 3.14 and 3.15; Stair Society Encyclopaedia 6.870; Alison, Criminal Law (1833), pages 23.4 and Moncrieff, Law of Review in Criminal Cases (1877). This petition sought to review the respondent's common law powers to investigate possible criminal offences.

[27]     
A good example in reverse of the present case was Cordiner, especially at page 18. Reynolds v Christie made clear the position for legal aid in criminal cases and to like effect was the Article in the Stair Society Encyclopaedia (6.870) on the High Court. Counsel drew my attention again to Alison loc cit and Moncrieff writing 40 years later. The respondent's common law powers to investigate criminal offences could not be reviewed in this way. Only something bordering on oppression would be reviewable, and only by the High Court. The circumstances would have to be extraordinary (See Hume: Commentaries on Crime) and even that could open the floodgates. There could be no conclusive list to what might be "extraordinary". (Montgomery v HMA was cited at pages 14 to 15). What was being attempted here was "satellite" litigation and that should be discouraged. That was also made clear in Law Hospital at 311. The criminal process was not the same as criminal proceedings.

[28]     
There was no proper analogy between the power of the fiscal and that of the police. In the Southern Bowling case and Shepherd v Menzies jurisdiction was not raised. The public interest was wider than the property rights of any individual. The petitioners were not barred from seeking damages in the Court of Session nor from raising any Human Rights points in the High Court. The Procedural Rules allowed for this.

[29]     
Mr Cullen then argued that even if the Court of Session had power to conduct a review in this case it should not do so. The respondent and the other agencies had acted in good faith and the petitioners had raised no objection. In a major disaster it was necessary to remove property and examine it in confidence. There were many good reasons for that viz there may be suspects; there may be a need for a caution; a potential accused should not have advance notice of the Crown's line of inquiry; witnesses had to be protected.

[30]     
Hence the investigation had taken account of all possible interests as the correspondence shows. Evidence has been preserved for the future. The civil claims would have to wait but at present there were no problems of time bar or quantum. In any case it was not for the petitioners to state the claims of the families.

[31]     
The cases on search warrants were not really in point because that confused the need for a warrant with any right to be present at Crown investigations. Counsel referred to R (Rottman) v Commissioner of Police at pages 703 and 727. Here there was no need for any warrant because the petitioners consented and indeed co-operated. In any event the petitioners were now back on their own site. Watson v Muir was then looked at.

[32]     
It was then said that ex gratia payments by the insurers were a matter for their decision. It was important to emphasise that from the outset the petitioners were content to have the site examined. They knew the Crown were protecting their rights.

[33]     
I was then taken to the rules in European law. Article 1 of Protocol No 1 was engaged. The Strasbourg jurisprudence had found very few violations of this Article. Here the State (ie PF) was preventing access in "the general interest". The correspondence showed how the Crown had gone about striking a fair balance. I was referred to various passages in Clayton and Tomlinson in chapter 18. The obligations were on the Respondent. Her "legitimate aim" was to see whether offences had been committed. It was also for the Respondent to show that the steps taken to achieve the aim were proportionate. The deprivation here was temporary and satisfied the test of proportionality. X v Netherlands was in point as was G S and M v Austria, both decisions of the Commission. Also in point was Vendittelli v Italy, the only difference being the long time factor there. These cases showed that a prosecutor could investigate without interference even if property had to be controlled. Here no compelling reason was advanced to justify any different approach.

[34]     
The Petitioners could not be prejudiced as elaborate safeguards existed to prevent that. The Court could not make the Respondent's decisions for her. A series of cases showed how vigilant the Court was about productions viz Anderson v Laverock, Miln v Maher and Houston v HM Advocate. The investigation of the sudden deaths was bound in with the criminal investigation. The letters, for example, No 6/18 showed there was a possibility of a criminal prosecution. If there was none the property would be returned. The correct time for that had not yet arrived.

[35]     
Perhaps at my insistence counsel then addressed an argument as to what "decisions" it was the Petitioners were seeking to review. He took me to Statements 16 and 17 and to No 6/6 of Process. It was clear that the Respondent reviewed her position as the investigation proceeded and if there was any prosecution then the rules about productions would apply as they would should proceedings be taken under the Health and Safety at Work Act or the Fatal Accidents and Sudden Deaths Inquiry Act. It had to be said that at present no decision had been made.

[36]     
When he came to reply to Mr Cullen, Mr Jones made a number of new and different points for the first time. There were also new productions. What he said was this.

[37]     
The petitioners had no secret agenda and simply wanted access to their property so that the claims could be progressed. There could be no progress without the judicial review. Because of that it became necessary to make hardship payments to various claimants. Mr Pointin acted for both the insurers and the insured. He referred to Nos.6/3 and 6/5 of process. He then looked to a series of letters passing between his clients and the Fiscal and among the solicitors acting for the claimants. (Broadly Nos.6/10 to 6/39 of process). These showed the problems being experienced by the bereaved and injured and the difficulties in making interim payments as opposed to hardship payments (which ranged from 750 to 10,000). The Fiscal had no common law right to exclusive possession for an indefinite time in the face of a reasonable request. The petitioners were not interested in the Crown's confidential investigation. They had the right of property at common law and under Article 1 of the Protocol No.1.

[38]     
There could be no difficulty about reduction. In an ordinary action it was accepted that something had to be produced, but in judicial review it was enough if a decision could be ascertained from facts and circumstances (here also the letters). The Court did have jurisdiction over the Fiscal wherever the LPG tank was. If there was a civil wrong then the Court of Session was the appropriate forum.

[39]     
Criminal business must mean at least proceedings and not mere investigation prior to trial. None of the text books referred to was authority for saying such investigation was a matter only reviewable in the High Court. (Counsel looked at The Stair Society Vol6; Moncrieff Law of Review in Criminal Cases (1877); Clyde v Edwards: Judicial Review; Hume on Crimes). In addition, he referred to Phillips v Steel and Bruce v Linton where the Court of Session reviewed certain irregularities at trial. Reynolds v Christie was a case where there was a prosecution. Counsel again referred to the importance of the civil right and Law Hospital; Montgomery; Southern Bowling and Shepherd v Menzies were again canvassed Lord Moncrieff was one of the Judges in Shepherd.

[40]     
Mr Jones under reference to Montgomery at page 14 and Kebeline page 371 said that the present proceedings were not "satellite litigation". This was the only litigation. Counsel then looked at the Scotland Act 1998 Section 57 and the practice over "devolution issues". The rules for these were all for the High Court and the matters averred on Record in Article 17 paragraph V could not be raised as any kind of devolution issue in the High Court. Only criminal proceedings allows devolution issues and here there were none.

[41]     
Counsel then looked at the merits of the pleadings.

[42]     
He explained that the productions lodged did not meet the petitioners' case. The petitioners did not seek access to the investigation but only to look at some equipment. He looked then in particular at No.6/15 of process. Did this mean that nobody else could ever investigate? The argument then broadened into major world disasters. He asked what of Lockerbie? There were many interests investigating the 1998 disaster; the Crown, the Air Accident Investigation Bureau, the Civil Aviation Authority, Boeing the planemaker and Pan AM the carrier. That was all a legitimate thing to do as planes worldwide may have had to be grounded. Everything would be urgent if the plane was faulty and people could die.

[43]     
Although the matter occurred in Paris, the Concorde crash was the same. So was Piper Alpha, Transco, recent railway disasters, Clarkston Gas and the local Rosebank Nursing Home Fire. The Crown had no power to stop the petitioners investigating. Only when there was an offence would the law then take over and regulate either liberty or possession. Here the LPG tank was taken with the consent of the petitioners and not in the exercise of any common law power or court warrant. There was no consent to retention without access.

[44]     
There had to be some limit to the powers of the Crown otherwise this would be a police state. If personal liberty was the issue, that could not be taken away without detention by statute or arrest at common law. It was the same with detention of property. Without some reasonable suspicion of an offence or clear hindrance to the investigation, access could not be denied. In England there were clear rules. Counsel referred to the Police and Criminal Evidence Act 1984; and various sections of it. Reference was also made to the case of Arias v Commissioner of Police. Here there was no reasonable suspicion and the correspondence revealed none (see No.6/1; 6/4; 6/5; 6/6 and 6/18). There is no established system for detention of property and it is done on a case by case basis. Anderson v Laverock was referred to and Watson v Muir. In the latter case there were no charges preferred until after the tests (see page 186). Timing was also important and that could not indefinitely be left to the Crown to decide.

[45]     
The Strasbourg Law did allow the state a wide margin in cases involving Article 1 of Protocol No.1; but that did not mean there could be no challenge. Then it would be a question of proportionality. However, here we did not want possession, only access. R v Shayler was looked at, pages 272/3 and 281. The flaw in the reasoning of the Crown was to say that in every case (not just the present) there could be no access in case the investigation was hindered. However, in the absence of reasonable ground in the present case, that was no way to strike a fair balance and make a proportionate response.

[46]     
In his second speech Mr Cullen refined his argument to a number of specific points. He dealt first with the many letters produced (mainly under No.6 of process). The narrow nature of the petitioners' case could be seen from No.6/20 of process which began a series. He read me statement 4 which, he said, was the sole justification for the petition. Access was wanted for the sole purpose of being able to make payments to claimants. Yet the very correspondence showed that, without having formed any view on liability, payments of a substantial nature had already been made. Some individually were large (however described) and the total was considerable overall. The letter also showed that the claimants wanted the Crown to investigate properly before any civil action was raised. Little time had elapsed and no action had been raised. There had therefore been no actions and no motions for interim damages or summary decree. All the victims were being kept fully informed. They were well organised and properly advised and in July a meeting of all concerned had led to the postponement of the present case. Counsel referred me to the schedule of payments in 6/42.

[47]     
Against this background the Court had to balance between the competing interests. On the one hand, the public interest required the Crown to investigate; on the other, the property owner sought access to form a view on liability, and so to make payments. Since the very evidence undermined statement 4 of the petition the balance should favour the Crown.

[48]     
Mr Cullen then looked at two of the older cases. Phillips v Steel was not to be followed. It was decided in 1847 and was plainly a civil matter. While correct on its facts, it was no longer a reliable guide. He referred me again to Clyde and Edwards paragraph 3.15 on the historical developments of the two jurisdictions. Even today problems occur. Bruce v Linton was clearly a civil matter and jurisdiction was not argued.

[49]     
Counsel next looked at Section 57 of the Scotland Act. He accepted that, as there were no criminal proceedings, the provisions of the Act of Adjournal could not be used. However, he argued that there was nothing in that Act or Human Rights Act to stop raising any devolution issue by way of petition before the High Court. This could be done before any petition had been served or trial took place. He referred me to R v H.M.A. 2003 P.C. 21 at 39 and 58.

[50]     
Next my attention was directed to the comparable position in England when property is taken in the investigation of crime. This, said counsel, was a statutory scheme involving balancing by the legislature. He referred to the Police and Criminal Evidence Act 1984 Section 21(3) and (8). There had to be control in the public interest and the police could refuse if they had reasonable grounds. In the present case, the respondent had set out reasonable grounds in the letter of 10 September (No.6/18). There was also a real question over who owned the LPG tank; and there were three separate petitioners. The respondent had given good reasons and there was nothing wrong in being unable to say much more at this early stage. There were many examples where reticence had to be the watchword, e.g. Public Interest Immunity cases; the use of special counsel. Although enacted in 1984, the provisions were in line with the European jurisprudence.

[51]     
I was then taken to the case of Arias and others v Commr. for Metropolitan Police and others. On this occasion I was provided with a full text of the opinion in the Court of Appeal. I intend to look at this case in detail later and at this point I restrict remarks on it to the question of what kind of scrutiny of reasons is appropriate. The facts, said counsel, were very different and the police objection was very wide. It was not appropriate in this case to give any heightened scrutiny, and the Court should defer to the respondent. The Court had no experience in criminal investigations. The whole matter was foreshadowed by Lord Diplock in 1980 in IRC v Rossminster Ltd at page 1012. When there was a discretionary area of judgement deference had to be given to those who had expertise. When there was a tragedy like this, there was a correct order of events. Where there was no unreasonable delay, the rights of the property owner had to be subordinated. In Arias it was clear that the police objection was just speculation. That was not the case here. Here there is an issue of confidentiality but there was none in Arias. The LPG tank here could not be equated with the business records there. It was not clear who owned the tank, in spite of asking.

[52]     
It could not be said that the petitioners were unaware of the nature of any possible charges. A meeting had taken place in August at which all interested parties were represented. It had caused a postponement of the continued judicial review. At the meeting the respondent had said that there were potential charges under the Health and Safety at Work Act, and corporate or individual culpable homicide. The petitioners and the directors are potential accused.

[53]     
The expert Mr Pointin had to be identified with the principals who instructed him. If he was allowed access he would be bound to tell others what he had found, such as the insurers, the petitioners and the directors. As some of them may not be owners, there was a risk of disclosure to people with no property rights. Visual examination created a risk. That was a concrete reason and not speculation. The respondent was acting in good faith and her judgement should be respected. There were a number of very good reasons why the Court should tip the balance in favour of the Crown. In the first place, it was a very serious case which had caused great public concern. It was a major disaster with the loss of several lives. In the language of Europe "deference" should be given to the public prosecutor. Secondly no prejudice to anyone could arise since each step has been and would continue to be scrupulously monitored and recorded. Thirdly, the petitioners' sole reason for seeking access was, on the evidence, demonstrably unsound.

[54]     
Mr Cullen then revisited the human rights point in the case from a somewhat new perspective and he referred in some detail to the second edition of Lester and Pannick on Human Rights Law and Practice, especially chapter 3 dealing with the margin of appreciation and discretionary areas of judgement. This whole area was of fundamental constitutional importance yet was being framed by a background which was weak on its facts i.e. the hardship payments. Under reference to paragraph 3.19 he said two things; firstly that this Court cannot conduct a merits review into the respondent's discretion, and secondly the Court should not. It was as basic as the principle of the separation of the powers. Article 1 of Protocol No.1 was at best a qualified right and one which was weaker in the hierarchy of convention rights. The Crown's investigations of the LPG tank were an area where the Court had no inherent expertise. It would thus be quite wrong to attempt any "merits" review. Counsel referred me to the East Sussex case, and to Shayler which was not a case about property rights.

[55]     
Mr Cullen in closing, referred to what happened in major incidents. In an air crash, the Crown would seek assistance from the A.A.I.B. and the C.A.A., as well as the manufacturer and operator. However, if a manufacturer might become an accused, they would not get access to the plane. Hospital deaths due to equipment malfunction would involve the Common Services Agency making checks. The hospital trust would not be allowed to be involved and any report would be confidential. Safety alerts could always be given. Matters to do with gas and railways were regulated by statute.

[56]     
I gave Mr Jones the last word on the case and he addressed me only on Arias. Arias was a case at common law where nothing turned on ownership. The decision gave all the guidance needed and P.A.C.E. only codified matters later. The facts showed that all the plaintiffs could not be owners. That could be said in the present case. The importance of the case was that the Court scrutinised the police reasons and balanced the interests. The police reasons were found to be no more then speculation and that was the case here. The House of Lords cases referred to in Arias were different on their facts and not in point. The petitioners would accept any appropriate conditions if allowed access to their property.

THE EVIDENCE

[57]     
I want now to look at the evidence presented to me in this case. It did not all appear at the first hearing, and as the continued diets arrived so did more productions. Most of what was produced was in the form of ongoing correspondence and some of it was duplicated. It may be summarised in this way.

[58]     
Three days after the explosion, Mr Crawford of H.B.M. Sayers acting for the petitioners and their insurers (Allianz Cornhill) wrote to the Procurator Fiscal. (Letter 6/1 dated 14 May 2004). The letter said that the insurers had instructed Mr D. J. Pointon of Messrs Burgoynes to investigate the circumstances of the explosion. He requested access to the site for the expert, and enclosed a letter showing a preliminary list of enquiries (No. 6/2 of Process). The letter was also sent by fax and a follow up was sent on the 18th (No. 6/3) where the request was repeated. It was clear that by that stage access had been refused. Mr Pointon's preliminary list was lengthy and covered not only the site but also documents and witnesses.

[59]     
The reply, when it came on 25 May (No 6/4) was from Mr Pattison the Divisional Fiscal. Access was refused and even at that early stage the letter said (page 2):

"... As the site is being treated as a crime scene it is not appropriate in our view for third parties (even those with a legitimate interest) to have contemporaneous access to the site and to the evidence as it emerges. The emerging findings of the inquiry will be confidential ...".

There appear to have been ongoing telephone conversations and on 10 June (No. 6/5) Mr Crawford wrote again. This time he mentioned a "... substantial number ..." of claims and the need to make progress with them. It was also clear that the LPG tank was Mr Pointon's main concern. For the first time judicial review was mentioned and a reason for the refusal to allow access. Eight days later Mrs Dyer replied (No. 6/6) giving the same reasons (crime scene, public interest and her common law powers to secure evidence against that background). It was made clear by her that the investigation would be lengthy, would be kept under review and all evidence would be preserved. (Paragraphs 2 and 5 on page 2 are of particular importance). She wrote a further letter on 12 July to Mr Crawford (No. 6/8) confirming that part of the site had been handed back to the petitioners. By this time, of course, the judicial review before me had begun. It was listed for one day and was expected to be concluded that day and an opinion given in early course. That never happened as the case was not concluded until December.

[60]     
In the meantime an early continued diet was fixed for August. That, however, never took place, probably because of a meeting between the parties and their legal advisers at that time. The meeting produced no resolution and the case was again heard by me on 14 and 15 October, 3, 4 and 5 November and it was finally concluded late on 10 December. Inevitably, the case heard in this way resulted in many new arguments, extra authorities and amendment. The main amendment was made in October to reflect, in part, the problem of seeking interdict. Originally the remedies paragraph of the petition was article 14. That was altered and became 18. All of the ensuing evidence in the correspondence has to be viewed against those events and the continuing case in court.

[61]     
On 27 July Mr Crawford was alerted to the finding of gas below where the LPG tank had been (No. 6/9). That prompted a further request from him for access (6/10). There followed some correspondence about the proposed continued diet on 24 August. By 25 August it was clear that Mr Pointon's interest was the LPG equipment (No. 6/13) and this letter was sent to Mrs Dyer on 27 August by Mr Crawford (No. 6/14). By that stage the meeting had taken place, but a continued hearing was very much in prospect. On the same date Mrs Dyer replied with a refusal to allow access (No. 6/15). It is clear from paragraph 4 of this letter that her understanding of the petitioners' concern related to the impending actions of the injured and bereaved. She described that as the "... only issue prompting (the) ... application for judicial review ...". A further letter updating and reporting on progress came on 3 September (No. 6/16). That, however, did not satisfy Mr Crawford who again sought access (No. 6/17).

[62]     
On 10 September Mrs Dyer wrote again (No. 6/18). The tone of this letter is slightly different. There is mention of which of the petitioners owns what, and that criminality cannot be confirmed or excluded. Individual responsibility is also mentioned, the need to precognosce witnesses and the risk of alerting suspects to emerging findings. It should be noted that only four months had passed since the event to the date of this letter. Mr Crawford's disappointed reply was written on 15 September but once again emphasised the need to take a view on the victims' claims.

[63]     
Continuing with Inventory No. 6 for the present, the next series of letters concern the marshalling of the claims of the victims. A number of firms of solicitors are involved. A disaster group was formed, described as the Stockline Steering Group, (see 6/2 to 23) and the agents began to quantify claims and discuss with the insurers interim payments. The topic of contributory negligence was raised and dismissed. The correspondence contains a number of attendance notes where needs/hardship payments were discussed by telephone.

[64]     
There are then lodged a series of letters from Messrs Digby Brown to HBM Sayers (Nos. 6/27 to 32) all in August 2004, setting out the serious position of various clients and seeking interim payments.

[65]     
H.S.E. confirmed that they had not intervened ((No. 6/33 dated 29 August). There follows a list of victims, and a list and total of hardship payments. This appears to be attached to No. 6/38. I note that by October 2004 some of the solicitors are wanting progress to be made (see e.g. 6/38 and 6/39). It is also clear from 6/37 that Mr Crawford realised that the investigation and any prosecution would have a long timescale well into 2005 and beyond. The concerns of the agents about the hardship payments were being expressed right up until the resumed hearing in November. (See 6/40, 6/41 and 6/42).

[66]     
The other evidence placed before me was in Inventory No. 7 of process (a total of seven documents). Of those, Nos. 7/1, 3, 6 and 7 are already found as Nos. 6/8, 11, 40 and 41 respectively. I accordingly now begin with No. 7/2 of process. That is a letter after the case before me began, from Mrs Dyer to Mr Crawford dated 16 July. It mentions the possibility of the site being handed back and inter alia ongoing tests for gas. No. 7/4 is a press cutting from the Evening Times. The copy given to me is not dated but it deals with the offers of interim payments and the progress being made. Finally No. 7/5 is a copy fax from Messrs Thompsons to the Scottish Executive solicitor dated 5 October. This recognises the responsibilities of Mrs Dyer as the person in overall charge, and the need to defer to her judgement.

The Authorities

[67]     
I now turn to look at most of the cases cited. Some were only mentioned as being referred to in more important authorities.

[68]     
Reynolds v Christie concerned jurisdiction in the process of judicial review. The petitioner had been charged with assault and the stipendiary magistrate in the District Court refused to grant him legal aid for his defence. The reason given was that it was not in the interests of justice. Accordingly, there were ongoing criminal proceedings. The exercise of the magistrate's power was wholly under statute which governed crime. The Lord Ordinary held that it was not competent to review that in the Court of Session. He distinguished Phillips v Steel as being a case where there was no criminal offence.

[69]     
Law Hospital NHS Trust v Lord Advocate arose out of the desire to discontinue life sustaining treatment on a terminally ill patient with irreversible brain damage. The patient herself was unable to consent to treatment ceasing but her family wished it stopped. Many issues arose to do with policy, medicine, ethics and several different matters of jurisdiction. For present purposes, what matters is the refusal of a Full Bench, as a matter of competency, to grant a declarator that a particular proposed course of action was or was not criminal. Any such declarator by the Court of Session would not bind the High Court or the Lord Advocate.

At 310 the Lord President said:

"... I consider that it is not open to the Court to assert that a proposed course of conduct is or is not criminal by means of a bare declarator ...".

He reaffirmed that in more detail at 311 and gave the policy reasons at 312. I note now that some of these reasons may be outdated since in limited circumstances Scottish criminal cases can be subject to an appeal to the Privy Council. There, as here, there was no criminal proceedings. The expression used at 311 was "criminal business". It is a moot point whether I face that in the present case. R v HMA was referred to for the limited purpose of showing how a Devolution Minute can be used. In that case, of course, there were ongoing criminal proceedings and the devolution issue raising a convention matter was used in bar of trial.

[70]     
Cordiner was a case where the question of jurisdiction was directly raised. The petitioner in the course of a divorce action was sentenced to imprisonment for contempt of Court. He petitioned to the nobile officium of the High Court seeking interim liberation. The High Court held that it had no jurisdiction to interfere with what the Court of Session had done.

[71]     
The petition failed for two reasons. In the first place, there was a remedy available in the Court of Session. Secondly, as was said by the Lord Justice General

"The High Court and the Court of Session have different historical origins and functions, and their jurisdictions are independent and in no sense concurrent .... Neither Court has any power either at common law or under statute to interfere with the exercise by the other of this important but essentially domestic jurisdiction."

A clear division between civil and criminal matters exists. Two earlier cases were disapproved where competency had not been challenged.

[72]     
Bruce v Linton was an action for suspension of a warrant of imprisonment. Bruce kept a tavern in Edinburgh. He was charged with selling spirits without a licence and imprisoned. His trial and conviction was complicated by many adjournments and that seems to have occupied the attention of the Lord Ordinary and the Inner House. No argument was addressed to the Court on jurisdiction and the main argument was whether a warrant to imprison was illegal. The opinion expressed concluded that it was, but that the conviction was unaffected.

[73]     
Phillips v Steel was referred to. In that case the respondent was the Fiscal of the Burgh Court in Airdrie. He charged the petitioner with selling alcohol from his ale-house on a Sunday. He was convicted and fined. No statute was referred to in the complaint or sentence, but the warrant of citation and sentence referred to a statute regulating the granting of certificates by justices for the sale of alcohol. It was argued that there was no common law offence charged as there could have been, and that the magistrates who convicted him had no jurisdiction. It appears that one of the convicting magistrates was a rival publican. Steel sought to suspend the conviction. The Lord Ordinary held that there was jurisdiction in the Court of Session to determine the matter. There was no criminal conviction as the matter related only to a breach of the certificate. Airdrie was not a Royal Burgh and the magistrate had no jurisdiction. The note of suspension was passed.

[74]     
The Inner House had no difficulty in adhering. The regulation and the punishment were not within the range of criminal jurisdiction. From the whole opinions it is clear that in 1847 the Court of Session would intervene to check any Court going beyond its powers, even if the proceedings were of a "... criminal description ...". (Lord President Boyle at 322). It is fair to point out that Lords Fullarton and Jeffrey would not so readily have claimed jurisdiction if the matter was properly criminal.

[75]     
Watson v Muir was much referred to by both sides. The facts were simple. Early in the morning of 1 February 1938 on the road between Dalkeith and Gorebridge a motor car driven by the first appellant Watson struck a cyclist causing fatal injuries to him. The car belonged to the second appellants A & W Douglas who were Watson's employers. After the accident the police allowed Watson to drive away and he took the car for repair to a garage in Edinburgh. Before any work was done the fiscal instructed the police to stop the work and have the car held at their disposal. Some days later they removed the car to test the brakes. The garage raised no protest. The owners did not know of the test and their consent was not asked or given. The test showed both hand and foot brakes to be seriously defective, although that could easily and quickly have been remedied. By Statutory Instrument power to test was prohibited without the consent of the owner unless notice of the date and time had been given to him. Following trial the driver and his employer were both convicted of offences involving the condition of the brakes. The Stated Case raised inter alia the evidence of the test.

[76]     
It was held that the evidence was admissible and the common law powers of the Crown were not restricted by the Regulations, even although no warrant was craved. The custodian had raised no protest.

[77]     
The Lord Justice General having considered the Regulations and their purpose went on to say that they had not been observed. However, he then continued (184/5)

"... But it must be remembered that, from ancient times, the procurator fiscal as the public prosecutor in Scotland has had powers of search in the course of his duties when he is investigating crime. It is doubtless true that that power of search depends upon obtaining a legal warrant for search. But it has never been doubted that it is unnecessary for the procurator fiscal to obtain a legal warrant to search if the party in possession of, or having the custody of, any article of which the procurator fiscal desires to obtain permission is willing to yield possession ...."

Both Lords Fleming and Moncrieff took the view that the Regulations conferred powers on persons other than the fiscal (viz the police in this case) and the fiscal's common law powers remained. Lord Moncrieff added that in his view it was desirable that persons liable to be criminally affected by such a test on a car have an opportunity to be represented at it (186).

[78]     
It should be observed that the facts in Watson were very simple and the whole timescale short (measured in days). That puts it a world apart from the case before me. The only common feature is that consent to take the relevant item was given, in Watson by the garage and here by the Petitioners. I am not persuaded that Lord Moncrieff's final remarks are other than obiter or, at least, confined to the case before him about a motor car. I do not think the comments were ever intended to be of any wider application.

[79]     
The case is also special as it involved Regulations not in issue here. An examination of the Justiciary papers reveals also that Watson was charged with careless driving. The lights on his vehicle were defective. The weather was poor. He hit roadworks and when he tried to brake he went into the cyclist. The accident happened at 7.00am and by 11.00am the same day the police had stopped work at the garage. On 5 February the car was removed for testing.

[80]     
Anderson v Laverock concerned the destruction of property which would have been a production in a criminal trial. Following a road check at night Anderson was found near Peebles with 26 salmon in the back of his car. The appellant was taken to the police station and charged with an offence. The next day the fish were destroyed. The appellant did not ask that they be kept for any inspection by himself. He was convicted. The Stated Case contained a finding about suspicious marks seen on the fish.

[81]     
To a degree the case was argued on the issue of secondary evidence, but in quashing the conviction the Court held the appellant had been prejudiced as he should have been given an opportunity of examining he property disposed of, even though he was not asked. At page 14 the Lord Justice-Clerk said "... It seems almost unnecessary to propound that in the interests of justice and fair play the defence, whenever possible, should have the same opportunity as the prosecution to examine a material and possibly contentious production ..." Houston v HMA concerned a charge of reset of a motor car. It appeared that certain parts from the car had been returned to the owners and could not be traced. Photographs of them had been taken but the accused wished to examine them. He took a plea in bar of trial on that point. Without expressing any view on the question of fairness the Court left the matter to the stage in the trial where it was sought to lead evidence about these items. That was the proper time to take the objection. The importance of the evidence could only be assessed in the context of the trial. Miln v Maher again concerned the destruction of what could have been a relevant production in a summary trial. Three carcasses of red deer stags were destroyed without the accused having any opportunity to examine them. Inter alia that was found to be a reason for justifying the sheriff in not convicting. Again this case shows the importance of preserving relevant evidence in a prosecution so that an accused may have a chance to examine it. Here no attempt has been made to preserve it.

[82]     
Montgomery v HMA arose out of a very controversial murder trial. The case was mainly concerned with the Convention rights and a devolution issue about pre-trial publicity and a fair trial. In the argument before me it was referred to for a limited purpose of reinforcing the separate jurisdiction of the High Court and the Court of Session and also the need to avoid "satellite" litigation delaying the criminal process. (See Lord Hope 14/15).

[83]     
Shepherd v Menzies was an action of interdict by a farmer against members of the Scottish Society for the Prevention of Cruelty to Animals and their inspector from entering his farm. It appeared that an inspector had gone with a constable into fields to examine working horses and had found cruelty breaches. As a result a ploughman was later convicted under the Cruelty to Animals (Scotland) Act 1850. Interdict was refused, the case turning on the terms of the Statute. There was also some limited discussion about whether a warrant was needed or not (see 445). Bell v Black & Morrison was an action of damages by a farmer and his wife against two procurator fiscals. Arising out of serious threats of violence to a minister of religion by third parties, the sheriff granted the defenders a warrant to search the pursuers' home. They had not been charged with any offence. Papers were examined and documents taken. The warrant was later suspended and the basis of the action of damages was "wrongful search" (sic). The Court held that the warrant was illegal and should never have been granted. It is of note than the illegality was admitted by the defenders. To a large extent the cases was argued on the need to aver malice or want of probable cause. However, the illegality on the part of the fiscals was described as palpable.

[84]     
In the case before me there is no issue of damages although I heard argument that such an action might arise in the future if there were no charges laid and the property taken was not returned.

[85]     
Southern Bowling Club v Ross concerned undercover police activity at the club when disguised officers sought to purchase liquor from club servants. The club sought declarator and interdict against the Chief Constable. The police acted as they did because of complaints of rowdiness at the club on Sundays. The Court refused the remedy sought in the public interest. To allow declarator would prevent the police from doing their duty; and what was done was described as "the ordinary work of detectives". The whole Court took an extreme view against the remedy sought. The Lord Ordinary was not willing to place any limit on the devices to which the police could resort in their pursuit of crime (413). Not every case would require a warrant to enter premises.

[86]     
Stewart v Roach concerned the issue of a search warrant. Two men were suspected of theft. No charge was proffered but the police obtained warrants to search their homes. Nothing was found. Earlier cases were discussed at length by Lord Cooper but the narrow point decided is that no charge is necessary for a warrant to be issued.

[87]     
Leckie v Miln concerned a warrant issued for search against a man accused on Petition of theft from a dental surgery. When the police executed the warrant they found other items which later formed separate charges against the appellant. He had been convicted of two of the other charges but not the theft from the surgery. When searching the police did not have a copy of the Petition. The conviction was quashed, the Court holding that the search was a random one. The case very much turned on its own facts and also on whether an informed consent had been given by another householder.

[88]     
HMA v McGuigan concerned the arrest and search of a murder suspect and the tent where he lived. No warrant had been obtained. The matter arose in the course of the trial. The Lord Justice-Clerk allowed the evidence recovered to be led. He stressed the urgency of the inquiry at the time, the seriousness of the offences and the lack of objection at the time. Importantly he added that even if the procedure had been irregular that did not necessarily mean that the evidence would be inadmissible.

[89]     
HMA v Turnbull was a decision at first instance during a trial for a tax fraud. It again concerned the misuse of a warrant granted for one purpose to recover documents which were later used to frame other charges. There were no circumstances of urgency and the evidence was disallowed. Lord Guthrie (102) stressed the importance of a warrant where the liberty of an individual was involved. Wan Ping Nam v Ministers of Justice of German Federal Republic was referred to only in passing and for a limited purpose. The Petitioner had allegedly murdered a fellow crew member on board a German ship at sea. He was arrested at Campbeltown when the ship docked charged with murder and subsequently detained on a warrant which named him as a fugitive criminal. The Petitioner claimed he was a British subject and not liable to be extradited to Germany. The case was referred to, in order to show that the proper way to deal with this kind of difficulty in the circumstances was to petition the nobile officium. At page 48 the Lord Justice General quoting from an earlier case made this plain under reference to Alison and Moncrieff both of which were cited in the case before me. In Wan, of course there was ongoing criminal business as the petitioner had already been charged with murder. To a large extent the case also concerned a lacuna in the Extradition Act 1870 which gave no obvious remedy in Scotland.

[90]     
I now look at the European cases against Article 1 of Protocol No.1 which provides as follows:

"Every natural or legal person is entitled to the principal enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The proceeding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties".

In Sporrang and Lonnroth v Sweden the petitioners both owned property in central Stockholm. Due to town planning decisions their heritage was affected by long term blight, effectively preventing development and construction. Neither petitioner, however, disposed of the properties. The restrictions on them lasted for many years and in one case, 25 years. At one time the policy was to have more and wider roads but over the years the policy changed to restrict car use and in the end of the day, the prohibitions lapsed. On a split decision, the Court found inter alia a breach of Article 1 of Protocol No.1. They said that the planning measures did not amount to a deprivation of possessions as such. However the expropriation and prohibition on construction over such a long time upset the fair balance between the protection of the right of property and the requirements of the general interest of the state. The issue of any compensation was reserved.

[91]     
The difference between this case and the present is that city planning is by its nature a long term matter, and the convictions and expectations of the community can change.

[92]     
Vendittelli v Italy is a decision of the Court and concerned criminal proceedings undertaken against an architect for contravention of planning regulations due to the work done on his Rome flat. In May 1986 the police sealed his flat. The following day criminal proceedings were taken against him. In December 1987 he was convicted. He appealed in 1988 but by the time the appeal was heard the very offence was the subject of an amnesty and prosecution barred. His earlier attempts to obtain release of his flat in 1986 and 1987 failed then because the evidence had to be preserved. In spite of a successful appeal in 1990, the seal remained on his flat. The Commission found a breach of Article 1 of Protocol No.1. While the sealing was justified while proceedings were pending, it was not justified for the many months (11 months) after the Rome Court of Appeal declared the criminal proceedings terminated. The Court held that while the sealing (called sequestration) was ancillary to the criminal proceedings there was no breach. It preserved evidence and prevented aggravation (para.38). There was, however, a breach of Article 1 of Protocol. No.1 in maintaining sequestration after the Court of Appeal decision. That put a disproportionate burden on the applicant.

[93]     
It has to be noted here that there were criminal proceedings and the periods of "prevention of use" were numbered in years. (It is difficult in this case also, not to have sympathy with the short dissenting opinion).

[94]     
X v Netherlands is an old decision of the Commission. The applicant had certain ownership rights in a ship which operated a "private radio" off the Dutch coast. After broadcasting was abandoned the ship come to Holland for repairs. It was detained by the public prosecutor pending trial of the applicant for unlawful possession of broadcasting equipment. The case is not fully reported but dealt with three Convention matters. Article 1 of Protocol No.1 was discussed particularly in relation to the deprivation of the ship (possession). The decision was that the seizure was only provisional, the aim being to pursue criminal proceedings. That was covered by the exception in favour of "general interest". It should be noted that the seizure here was in September 1974. The criminal proceedings begun in October and the applicant was convicted in December. In all it was a period of under four months. In the case before me the period is already longer and there are, as yet, no charges.

[95]     
Another case, also before the Commission, involving the "general interest" exception is G.S. and M v Austria. G and S were company directors. They were charged with offences of dishonesty and detained for five months. M was their lawyer. His office was searched by order of the investigating Judge and papers seized. It was ten months before the defence got access to them. To some extent the case turned on the failure of the lawyer to object in proper form and to claim confidentiality. The Commission also held that to seize documents, was not a disproportionate response to the aim of securing the orderly conduct of criminal proceedings. It had to be noted that the applicants had been charged with crime at an early date and were aware of the charges on their arrest.

[96]     
Jokela v Finland concerned the valuation of land for two different purposes, compulsory purchase and inheritance tax. The Petitioners land had been taken (expropriated) to construct a road and other land assessed for tax. Neither value pleased them as one was too low and the other was too high. Inter alia Article 1 of Protocol No. 1 was discussed. The Court viewing each assessment separately found no breach but when looked at together there was a breach. There had been no consistent approach and their peaceful enjoyment of their possessions had been violated. At paragraph 53 it was stressed that a fair balance had to be struck between the general interests of the community, and the protection of the individual's fundamental rights.

[97]     
Allegemeine Gold &c v UK concerned the right of a German Company to recover its property from the British Customs. Two fraudsters had gone to Germany. They purchased 120,000 worth of Krugerrands from the Company and gave a cheque in payment. The money was put into their car and later hidden in a spare tyre. Unsurprisingly the cheque was dishonoured. The money was found at Customs. The Customs forfeited it as they were entitled to do. There was a trial of the fraudsters and an action by the Company all to no avail. Before the European Court they again failed to show any breach of Article 1 of Protocol No. 1. By majority the Court found paragraph two of the Article was engaged, but there was no breach as the English law provided adequate safeguards to seek judicial review of the decision of the Customs. For reasons that are not wholly clear the German Company had not sought to do this.

[98]     
Arias and others v Commissioner for the Metropolitan Police etc was much prayed in aid by both sides. The only report of the case seems to be in 1984 Law Society Gaz. 2694, but I was provided with a transcript from the Times 1 August 1984. In the first place, it should be noted that this case from the Court of Appeal precedes the Police and Criminal Evidence Act, 1984.

[99]     
The facts are somewhat complex. Arias and others were trustees. The trust was offshore and was formerly known as the Vegas Trust, latterly the Lomond Trust. It was a commodity syndicate formed to invest money of clients in futures markets hoping to provide high profits. A third plaintiff (ultimately the Baraguesa Finance Corporation (B.F.C.)) managed the trust from a London office. In March 1984, the police entered the offices of the B.F.C. and seized a number of documents relevant to the business of the trust. Widespread fraud was suspected and soon an associate of B.F.C. was charged with an offence relating to distributing circulars to encourage speculative investments. The appellants sought return of copies of the documents at their own expense so that they could service their contracts with their investors. The investors' contracts were all returned and B.F.C. (via a Mr Rentzing) was able to repay capital to its investors. However, other papers known as "trading" documents were not returned; which would have allowed Mr Rentzing to calculate investors profits or losses. The refusal to return what was wanted or give copies was justified by the police under public interest. The police affidavits stated that to return them would facilitate the fabrication of evidence and allow these suspected to "cover their tracks". Judge Stabb Q.C. dismissed their application but the Court of Appeal took a different view. Both Kerr and May LJJ found the police reasons speculative and insufficient.

[100]     
R (Reprotech Ltd) v East Sussex Ltd was referred to only for the limited matter of the hierarchy of rights under the Convention. Some rights appear to be greater than others; with property rights being much more limited by considerations of public interest. (See paragraph 34 on page 358 per Lord Hoffman).

[101]     
Inland Revenue Commissioners v Rossminster Ltd was discussed only because it was referred to in Arias. The case concerned a search warrant. Suspecting a tax fraud and acting under taxation statutes, a Revenue Officer obtained a search warrant from the Common Sergeant of London. Early one morning, the applicants' premises (four of them) were searched and items seized. They were not told who was, or what offences were, suspected. The warrant contained no such particulars. The applicants sought judicial review and return of the documents. The Court of Appeal having granted that the Revenue appealed.

[102]     
The appeal was allowed on the basis that the warrants were within the terms of the statute. The occupants of the premises had no right to be told then what offences were alleged to have been committed, by whom, or the reasonable ground which the judge was satisfied existed, for suspecting that a tax fraud had been committed. The Revenue enjoyed the presumption of regular acting, and the evidence filed for the respondents failed to show that there could have been no reasonable belief on the part of the Revenue Officer as to the search.

[103]     
It is interesting to note (see 1000D) that the issue was raised at a very early stage in the investigation and without proof (1013). Lord Diplock at 1012, adopting Lord Reid in Conway v Rimmer, held that the Revenue were not obliged to disclose grounds of belief, but this immunity was temporary. He went on to say that any civil action had to give way to criminal proceedings and public interest immunity would apply to the end of the trial. Investigations had to proceed with reasonable dispatch and a decision to prosecute taken without unreasonable delay. If this was not done then immunity would lapse, and discovery could go ahead. The Revenue were not obliged to disclose the grounds of this belief. It followed that a very strong case would be required to justify the inference that no reasonable person could have thought as the Revenue did.

[104]     
The time scale of this case is of interest in relation to the periods in the present case. The Revenue warrant was executed on July 13 as Lord Denning vividly described at 968/9. By the end of July the matter was before the Divisional Court, in August before the Court of Appeal, and by October in the Lords. The case before me has perhaps not been as quick but is still at an early stage. Eveleigh L.J. analysed in some detail the Revenue affidavits as to what were their reasonable grounds for suspecting offences (see 964/6). They were found to be sufficient. They also showed how detailed disclosure could harm the inquiry.

[105]     
Regina v Secretary of State ex parte Daly concerned the rights of a prisoner over his confidential correspondence with his solicitor which he kept in his cell. The applicant was a long term prisoner and was liable to have his cell searched from time to time. The search policy was to exclude prisoners during the search. That he challenged only to the extent of wanting to be present. The point at issue was narrow. On the one hand was respect for his correspondence at common law and under Article 8 of the Convention; on the other, the need for security, prevention of crime and maintaining order and discipline in the prison. Both at common law and under the Convention the policy was held to be invalid.

[106]     
The importance of the case for present purposes is that it clarified the difference between a Wednesbury ground of review at common law, and the approach of proportionality where Convention rights were at stake. Proportionality involved a more sophisticated approach (547C) and a more intense review. That did not mean there had to be a merits review. It should be noticed and emphasised that the access to legal advice, especially for a prisoner, was viewed as a paramount right (see 538A and 548G). In my view such a right is of greater significance than the qualified property right in the present case. In Daly the Court proceeded inter alia on evidence of Scottish practice, prison rules, statistics of searches and reports from the Prisons Ombudsman and the Director General of H.M. Prisons.

[107]     
R v Shayler concerned the prosecution of a former member of the security service for disclosing documents to a newspaper. His defence was that disclosure was in the national interest. The value of the case, for present purposes, is in the remarks of Lord Bingham at 272/3 where he adopts and approves what was said in Daly but in the context of freedom of expression.

[108]     
R (Rottman) v Commissioner of Police of Metropolis concerned the use of an English search warrant to effect the arrest and search of a fugitive from justice in Germany. The case itself is of no value for present purposes but it does contain a statement of the Scottish position about general Petition Warrants. (See Lord Rodger para. 102).

[109]     
Morris v Beardmore concerned an invasion of a person's home to require him to take a breath test under the Road Traffic legislation. It was referred to by way of an example of private property rights which could not be interfered with without express sanction (see 455/6 Lord Diplock).

[110]     
Regina v D.P.P. ex parte Kebilene was a case arising out of a judicial review taken in an attempt to stop criminal proceedings. Kebilene and others had been arrested in England under terrorism legislation and were committed for trial for possessing items for the purposes of terrorism abroad. (The items included books, money, credit cards, documents, radio equipment, etc.). Possession of such items under the legislation gave rise to a presumption of guilt which it was for the accused to rebut (reverse onus). After the trial began, the judge found that the relevant section of the Act in issue contravened Article 6 of the Convention (fair trial). The trial was aborted and the director began fresh proceedings. The applicants sought judicial review and a very experienced Divisional Court granted it.

[111]     
The appeal to the Lords succeeded on two grounds. First of all the Convention's provisions were not yet in force. Secondly, judicial review should not be used to challenge the criminal process when the points could be raised at the trial or on appeal. Other reasons were also given which are not in point for the matter before me. Lord Steyn at 371 described what was being attempted as "satellite litigation" designed to delay the conduct of criminal proceedings.

CONCLUSIONS

[112]     
What then can be taken from all of this. One thing is quite clear. The various letters produced to me in the evidence amount to a decision or a series of decisions. I have already looked at the detail of this and do not propose to say any more about it. Clearly these decisions are a proper subject for judicial review. Firstly I am satisfied that sitting in the Outer House I have jurisdiction to hear the Petition. At present it cannot be disputed that there is no process and no proceedings. None have been initiated and nothing specific has been contemplated or set in motion. There is no Fatal Accident Inquiry and nobody has been prosecuted or even charged. The fact that all these things may be in contemplation does not in my view make any difference. Nor is there any civil action in Court for damages.

[113]     
Against that background I am satisfied that any attempt by the Petitioners to involve the nobile officium of the High Court would fail as would any attempt to raise a devolution issue. On that latter matter the Rules (particularly Rule 40.2) do not allow any such minute without there being proceedings on indictment before the Court (R v HMA). There is here no indictment. This on its facts is not a case like the Court of Session interfering in a criminal matter (Reynolds v Christie) or the High Court in a civil matter (Cordiner). It is purely at this stage a question of a right of property. I do not think the older cases like Philips v Steele would now be followed nor Bruce v Linton where there was no argument on jurisdiction. Philips was not strictly a criminal matter and the Lord President's defence of the powers of the Court of Session have not, I think survived to this day. Even in 1847 his colleagues expressed reservations about interfering in crime. Here there is no crime. I think the case of Law Hospital has to be distinguished. That was a direct attempt to use the Civil Court to bind the Lord Advocate. The present facts are quite different. No attempt is made here to fetter the ultimate discretion of the fiscal as to what she may do in the future.

[114]     
In all Scottish cases cited where warrants were in issue e.g. Stewart v Roach the matter was decided against a clear criminal background and the same has to be said of the cases where productions were in issue; Watson v Muir for example, and Anderson v Laverock. The passages from the institutional writings Hume, Alison, Moncrieff do not specifically deal with this point and the references to criminal matters do not in my opinion cover what has happened here.

[115]     
It is of some interest to observe that in England civil remedies seem to be used in cases like this without question e.g. Rossminister; Arias, even when a criminal warrant has been issued. I do not take anything out of the English rules under PACE on this matter. That is a pure matter of statute and for present purposes is not in point. It was argued to me that to assume jurisdiction would be to encourage "satellite litigation" (Kebilene). In my opinion what I have heard cannot be so described. In the English cases like Kebilene there was an ongoing trial or retrial and then a judicial review. It is easy to see how that could be satellite litigation. By its very definition a satellite is something revolving around or connected to a parent planet or a main event. Here there is no main event or other ongoing litigation and I consider that the present litigation has been brought in the proper form.

[116]     
That leaves the second question as to whether I can or should grant the relief sought. That largely depends on the facts placed in evidence. Before dealing with this and the law arising I should observe that I was not given any separate Wednesbury argument. That may be because the Strasbourg jurisprudence was relied on where a stricter test has to be applied.

[117]     
The correspondence produced and argued over fails to persuade me that there is any urgency to make further payments to claimants. They are not pressing and no actions have been raised. In that situation I have to accord priority to the proper authorities to continue the investigations into a very complex matter even if it deprives the petitioners for a while of access to certain property. The evidence shows that in respect of one vital item (the L.P.G.tank) there is some uncertainty about ownership. That will have to be clarified. The petitioners are at least now back on site. In saying this I am not to be held as deciding that the Crown can retain these items indefinitely even if everything is being recorded and photographed. There will have to come a time when the petitioners will get access or else be told they cannot as there is to be a prosecution. It is at that point that the fair procedures contemplated in Watson v Muir and Anderson v Laverock will have more relevance.

[118]     
At present I am satisfied on the evidence with the Crown's reasons for refusing. They are much more cogent than the reasons rejected by the Court of Appeal in Arias which in some ways was a case closest to the present but with a few important differences. In Arias it was only paperwork and only copies were asked. The reasons given by the Fiscal and others in the letters are very compelling. The whole matter was a major tragedy affecting many lives and property. The course of the event is plainly complex and matters are still at an early stage. This is no simple road traffic accident like Watson v Muir. There may be a prosecution or not. There may be a Fatal Accident Inquiry or not. In any event the Fiscal, who is the proper authority, must be allowed complete discretion and a proper timescale to investigate using appropriate expert advice if required. This is a matter of public law, and in my view the proper order of things means that the wishes of the owners or any claimants must take second place. Only if there was any suggestion of malice or an improper motive on the part of the fiscal could a court ever take a different view. Such tactics were, of course, never suggested here, nor could they be. I again stress the elaborate safeguards in place. I want to say a further word here about Southern Bowling, a case relied on by the Petitioners. In my opinion that case supports the respondents. The Court there refused to place any common law limits on how the police went about their duties. (see esp. the Lord Justice Clerk and Lord Young). I am unwilling to place any such limits on the Fiscal in the present case.

[119]     
As to the Convention, I am satisfied that none of the authorities is really in point. I begin by remarking again that Article 1 of Protocol No.1 rights seem to be regarded as lower in the scale of Convention rights (Reprotech). That, however, does not mean that I am absolved from considering whether a fair balance has been struck between the general interests of the State and private right. The action of the respondent has to be proportionate to the circumstances. However, it is not for me to embark on any merits review. The planning (Sporrong) and valuation (Jokela) cases are very different and even an extreme case like Vendittelli shows how reluctant the Court is to intervene. Both criminal cases decided by the Commission had a very short timescale. I have of course to give an intense scrutiny to the Crown reasons to determine whether their response to the request for access is proportionate and strikes a proper balance. Given the importance of the role of the Crown, the complexity of the inquiry and the short time scale, the reasons given survive even the closest scrutiny and I find no Convention Right had been interfered with.

[120]     
There is one final matter before dealing with the pleas-in-law. Mr Jones suggested that he would accept access with any reasonable conditions. I am of the opinion that this is not a matter for me to determine on my own even if I were in the Petitioner's favour on this point. However, the matter does not arise. The four pleas-in-law for the Petitioners thus fall to be repelled. I will repel the first plea-in-law for the Respondents and sustain the second and third. The fourth plea-in-law does not now arise. In the result the petition will be dismissed.


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