A

Bill of Suspension 22 July 2016

CLYDE AND CO (SCOTLAND) LLP Complainer

against
ANDREW RICHARDSON
B (Procurator Fiscal, Edinburgh) Respondent

[2016] HCJAC 93

Warrant—Search warrant—Warrant to search for and seize documents

held by solicitor and covered by legal privilege—No notice of application
for warrant given to solicitors—Application inaccurate—Whether
actions of applicant for warrant oppressive—Whether warrant should
be suspended
C
Warrant—Whether competent for single High Court judge to suspend
sheriff ’s search warrant ad interim

The complainers, a firm of solicitors, sought an order from a High Court

judge for the interim suspension of a search warrant on the ground that it
related to privileged documents and that the application for the warrant
contained inaccuracies. No argument was presented on the competence of the
application for suspension.
D The documents were held by the complainers in connection with civil claims
relating to an incident which occurred at a place, L, which had been
discontinued as time-barred. Thereafter the police obtained a warrant from the
sheriff for recovery of any papers relevant to L and any other evidence which
might be material to the investigation into the alleged abuse at L. Warrant was
granted and the police visited the complainers’ offices. After some discussion
they agreed to delay executing the warrant to give the complainers time to
consider their position. The complainers then brought a bill of suspension in
the High Court.
E Held (1) that it was in the nature of remedies for preserving the status quo
in the face of a threatened wrong that they be available quickly and on
summary application, and that in practice if interim suspension cannot be
granted a remedy will not be available (para.14);
(2) that in determining whether a warrant should be suspended the court
was concerned not only with the decision-making of the sheriff but also with
the actions of the party who applied for the warrant (para.15); and
(3)(i) that the actions of the respondent in applying for the warrant were
oppressive, that he was obliged to ensure the accuracy of his averments so far
as reasonably possible, that he was aware that he was seeking to acquire clients’
F files and there was no reason to believe the complainers would act improperly
and no question of urgency, that an obvious and easy step would have been to
contact them directly (para.16); and
(ii) that the averments in the application for the warrant related only to the
supposed original documents of which copies had already been supplied and
did not support the very wide terms of the crave, and that no provision was
made for independent supervision of the police or for the documents to be
supplied sealed unread and delivered to the court for adjudication on the issue
of privilege (para.17); and warrant suspended ad interim and warrant given
G for service and matters continued for a hearing.

480

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 2016 S.C.C.R. Clyde and Co. (Scotland) LLP v Richardson 481

Cases referred to in the opinion of the court: A

Birse v HM Advocate, 2000 S.C.C.R. 505; 2000 J.C. 503 (sub nom Birse v
MacNeill); 2000 S.L.T. 869
Executors of Lady Bath v Johnston, Fac. Coll. 12 November 1811
H Complainers, High Court of Appeal, 5 February 2016, report presently
embargoed
Hay v HM Advocate, 1968 J.C. 40; 1968 S.L.T. 334
McCowan v Wright (1852) 15 D. 229
Morton v Mcleod, 1981 S.C.C.R. 59; 1982 S.L.T. 187 B
Stewart v Harvie [2015] HCJAC 13; 2016 S.C.C.R. 1.

The complainers presented a bill of suspension to the High Court seeking

suspension of a search warrant granted in Edinburgh Sheriff Court.

The bill was heard by Lord Brodie on 22 July 2016.

For the complainers: Smith QC, instructed by Clyde & Co, Solicitors,
Edinburgh.
For the respondent: No appearance. C

On 22 July 2016l Lord Brodie suspended the warrant ad interim. His Lordship
subsequently issued the following notes.

LORD BRODIE
[1] The complainers in this bill of suspension are a limited liability partnership,
being solicitors with a place of business at Albany House, 58 Albany Street,
Edinburgh. The respondent is the Procurator Fiscal, Edinburgh. The
D
complainers seek suspension of a search warrant granted by the sheriff at
Edinburgh on the application of the respondent, dated 21 July 2016 and timed
at 15.37 hours (“the search warrant”). The application which came before me,
on 22 July 2016 not long before 17.00 hours in chambers, was for interim
suspension of the warrant. As at that time the bill had not been warranted for
service. Having heard Mr Smith on behalf of the complainers, I adjourned in
order to allow my clerk to advise Crown Office that the application had been
presented and to invite the attendance of an advocate depute to represent the
respondent. That invitation was made by telephone at a little after 17.00 hours. E
It was not taken up. Having heard Mr Smith further, I suspended the search
warrant ad interim, granted warrant for service of the bill and continued the
matter to a date to be fixed.
[2] The circumstances in which that application was made, as I understood
them from what appeared in the bill, in two telephone attendance notes and
the explanation provided by Mr Andrew Smith QC, who was accompanied
and instructed by Mr Graeme Watson, Solicitor advocate, a partner in the
complainers, are as follows.
[3] A client of the complainers is S. The complainers have acted for S in F
relation to claims for damages against it by individuals on the basis of its
vicarious liability for alleged acts which occurred at a particular location, L.
These claims have been discontinued on account of an acceptance that any
claims were time-barred. It is averred by the complainers that in course of
taking instructions from representatives of S these representatives “disclosed
certain matters and were provided with advice . . . which advice and
information being disclosed was privileged”. As I understood matters, the
complainers retain in their possession documents and files, both paper and
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 482 Clyde and Co. (Scotland) LLP v Richardson 2016 S.C.C.R.

A digital, generated in the course of acting for S which include information and
advice in respect of which S, whose specific instructions have been taken on
the point, asserts legal privilege.
[4] On 7 July 2016 Detective Constable Nicola Gow contacted the
complainers by telephone. She spoke to Mr Watson. There were at least three
telephone calls between DC Gow and Mr Watson on that day. I was shown
copies of Mr Watson’s telephone attendance notes. DC Gow indicated that she
was aware that the complainers held certain information in their client files for
S that might be relevant to a criminal inquiry which was currently being
B undertaken. She already had copies of some documents but wished to obtain
originals of these (including what she described as “originals” of unsigned
statements held digitally), the litigation files and such other documents which
were in the possession of the complainers. Mr Watson advised that the
complainers would check what information they had access to with a view to
establishing its whereabouts and what might be capable of being produced.
Mr Watson indicated that the client files were privileged and confidential. Mr
Watson advised that in the event of him receiving instructions to do so, he was
C willing to excise from the file certain material in order to assist the police
inquiry. DC Gow suggested that they might arrange a time to look at the files
together. Mr Watson said that he would need to take instructions on that
proposal but that a provisional date for such a joint consideration of the files
could be arranged. DC Gow indicated that she would discuss matters with her
superior officer but that a search warrant might be sought.
[5] On 11 July 2016, in anticipation that an application for a warrant might
be made, Mr Watson, on behalf of S wrote to the sheriff clerk in Edinburgh
requesting that the sheriff clerk contact the complainers in the event of any
D application to the sheriff with a view to S being represented at any hearing
before the sheriff. Mr Watson explained in that letter that the complainers and
S had provided such assistance to Police Scotland as they could within the
confines of the Data Protection Act 1998, confidentiality and agent-client
privilege. The letter included the sentence: “In our submission it would be
oppressive and prejudicial for a warrant to be granted without first hearing
from (S).” No reply has been received to that letter.
[6] Subsequent to the conversations between Mr Watson and DC Gow and
prior to 22 July 2016 neither the police, the respondent nor any other
E representative of the Crown contacted the complainers in relation to recovery
of documents held by the complainers.
[7] At about 10.00 hours on 22 July 2016 two police officers attended at
the offices of the complainers at 58 Albany Street, Edinburgh, claiming to
be in possession of the search warrant which they proposed to execute. Initially
they were reluctant to allow Mr Watson to read the search warrant and then
they were reluctant to allow him to copy it. Once Mr Watson had succeeded
in persuading the police officers to allow him to read and copy the search
F warrant he was able to ascertain that it had been granted at common law in
terms of the crave of a petition at the instance of the respondent in these
terms:
“[T]o any constable of Police Service of Scotland and/or members of
staff from the Scottish Police Authority or any other officer of law with such
assistance as they may deem necessary, to enter and search the offices, out
buildings and storage facilities of Clyde & Co, Albany House, 58 Albany
Street, Edinburgh and to be at liberty to secure and take possession of any
papers relating to L whether in electronic or paper format, and any other
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 2016 S.C.C.R. Clyde and Co. (Scotland) LLP v Richardson 483

evidence which may be material to the investigation into the alleged abuse A
at L held by said Clyde & Co, whether in a computer system or otherwise.”

Insofar as material to the issues raised in the bill, the averments in the petition
were as follows:
“(S) have provided copies of documents referring to a code of conduct
for staff . . . a punishment book, lists . . . statements, including what
purports to be a statement taken from (a named person) and signed by
her. . . .
“(S) have indicated that the originals of these documents are held by B
their legal representatives, Clyde & Co, Albany House, 58 Albany Street,
Edinburgh. A request has been made to have these documents released to
Police Scotland, however, the solicitor has refused to release these
documents, citing reasons of client confidentiality.
“The solicitor has indicated that they will provide the originals of the
documents already provided in copy format only.
“There are reasonable grounds for believing that evidence material to
the investigation . . . is found within the documents being withheld by the
solicitor. The solicitor has indicated to an officer of Police Scotland that
there are two boxes of papers and electronic records relating to (L).” C

As Mr Smith explained, these averments were inaccurate in certain respects or

at least framed in terms that were likely to mislead the sheriff when considering
the petition. The tenor of the averments is such as to suggest that what is
sought to be recovered are the originals of the specified documents (i.e. the
code of conduct, etc) which have already been provided by S (albeit that
the crave of the warrant is in much wider terms) and that was because the
complainers were only prepared to provide copies. Moreover, while there is D
reference to “reasons of client confidentiality” (which makes no sense if it is
the respondent’s position that the police already have copies of the documents)
there is no reference to the separate assertion of legal privilege by S.
[8] The assertion of legal privilege in the face of a search warrant has
recently been considered by the court in its opinion, dated 5 February 2016,
in the bill of suspension at the instance of parties whom I will refer to as H
Complainers. This opinion has not been published because the proceedings to
which it relates have not been concluded but will have been issued to parties,
one of whom is the Lord Advocate. I had been unaware of this opinion until E
Mr Smith brought it to my attention and the sheriff who granted the search
warrant is also unlikely to have been aware of it. On the other hand, I would
expect the respondent, as a representative of the Crown, which in the person
of the Lord Advocate was party to H Complainers, to have been aware of the
decision and the terms of the opinion of the court and particularly those parts
of that opinion which prescribe what ought to be done when the Crown
applies for and then has executed a warrant for search and seizure of material
in respect of which legal privilege may be asserted.
[9] H Complainers does not innovate upon the existing law but clearly states F
it and highlights the consequences for practice. It is prescriptive as to what
should be done by the Crown when seeking to recover clients’ files from
solicitors. It is convenient to quote the following paragraphs from the opinion
of the court, as delivered by the Lord Justice-General:
“[26] A police officer seeking a warrant from a sheriff must not provide
information which he knows to be inaccurate or misleading. He should
provide all the relevant information. The reference to ‘full disclosure’ in
McDonagh v Pattison, 2008 J.C. 125 (at paras.11 and 12) should be G

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 484 Clyde and Co. (Scotland) LLP v Richardson 2016 S.C.C.R.

A understood in that context. The duty includes one to disclose the fact that
the havers are a firm of solicitors who are maintaining a plea of legal
privilege. It was submitted that the information in the petition and given by
the police officer on oath to the sheriff, in particular in relation to the likely
application of legal privilege, had been inaccurate. This contention was not
contained in the original Bill, upon which alone the sheriff has reported. It
is a reasonable one, insofar as it is based upon the sheriff’s first report. That
report states that there was no suggestion that legal privilege should apply.
However, it appears to be contradicted by the second report.
B
[27] The court will proceed on the basis that the sheriff was aware of
the claim of legal privilege. He certainly ought to have been so aware,
given that the havers were a firm of solicitors. . . .
[28] What is important to note is that the warrant was obtained for
material over which there was an ongoing dispute about legal privilege.
That dispute was taking place between the Crown, notably the advocate
depute, and a firm of . . . solicitors, namely the first complainers. There
is no suggestion that the first complainers were involved in any form of
illegality. There was no averment that, in the context of the ongoing
C dispute, the first complainers would be likely to destroy, or conceal, the
relevant material. Indeed the existence of this material had been flagged
up in the two chronological bundles . . . In these circumstances, an
application to a sheriff for a warrant to search the first complainers’
premises to recover this material, without intimation, was oppressive. If
the course selected by the Crown were to have validity, it was incumbent
upon them to have intimated the application for a warrant to the first
(and/or second) complainers, so that they could make representations to
the sheriff about legal privilege. The sheriff could then have made such
D appropriate orders, as he deemed fit, to secure proper compliance with
the law of privilege in respect of the recovery of the solicitors’ files.
[29] The courts must be careful to protect the important right of legal
privilege which generally attaches to communications between a client
and his solicitor (Narden Services v Inverness Retail and Business Park
2008 S.L.T. 621 at para.11). It is essential therefore that due caution is
observed when a court is granting an order for the recovery of solicitors’
files. The need for such caution is even greater when a warrant is being
granted with a view to its endorsation for execution outwith Scotland.
[30] There is no reason for a warrant to state expressly that materials,
E ostensibly covered by its terms, are excluded where legal privilege exists.
Such privilege may or may not be asserted. If it is capable of being
asserted, however, the seizure process must have within it clear, detailed
rules on how that assertion can effectively be raised and determined.
That is a matter which was stressed in the mid-nineteenth century
Scottish cases cited (Bell v Black (1865) 5 Irv. 57, LJC (Inglis) at
64; Nelson v Black & Morrison (1866) 4 M. 328, LP (McNeill) and Lord
Deas at p.331, Lord Ardmillan at p.332; Lord Wood at p.237). It is now
reflected in the European jurisprudence (Sallinen v Finland (2007) 44
F E.H.R.R. 18 at paras.90 and 92; Niemietz v Germany (1992) 16 E.H.R.R.
97 at para.37). In a case, such as this one, where it is clear that what is to
be searched is a solicitors’ office and that legal privilege is being asserted,
any warrant ought either to have provided for independent supervision
of the police search by a Commissioner appointed by the court or to
have contained a requirement that any material seized should be sealed
unread and delivered to the court to enable the sheriff to adjudicate
upon the issue (see Wieser v Austria (2008) 46 E.H.R.R. 54 at para.57).
The ability to raise a Bill in the High Court of Justiciary, designed to
suspend the warrant itself, is a procedure for review by an appellate
G court which, whilst competent, is not straightforward. It does not supply

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 2016 S.C.C.R. Clyde and Co. (Scotland) LLP v Richardson 485

the necessary effective remedy at first instance. If this necessitates a A

change of practice in connection with the recovery of solicitors’ files,
such a change requires to take place.”

[10] As will be apparent, what was done by the respondent in the present case
failed in a number of respects to comply with what the Lord Justice-General
prescribed in H Complainers. The complainers do not aver bad faith or an
attempt to mislead on the part of the police and I see no basis upon which that
could be inferred. The averments in the respondent’s petition may reflect DC
Gow’s understanding of matters but these are the respondent’s averments and B
by presenting them to the court in a petition signed by one of his deputes the
respondent took responsibility for their accuracy insofar as the accuracy of
averments can reasonably be ascertained. As I have indicated, the averments
were not accurate. They were not comprehensive. They were misleading. There
was no urgency in the matter, as the passage of time between 7 and 21 July
2016 demonstrates. There was no averment in the petition that the complainers
would be likely to destroy or conceal the relevant material or that they were in
any way involved in wrongdoing. The respondent chose not to contact the
complainers to confirm the facts prior to preparing his petition, although, as C
the Lord Justice-General observes at para.27 of H Complainers in relation to
the sheriff, the respondent ought to have been aware that issues of legal
privilege would arise where he was seeking to seize documents generated in the
course of solicitors acting for clients faced with the prospect of litigation. There
is nothing in the crave of the warrant to restrict its execution to circumstances
where there is independent supervision of police officers or requiring any
material in respect of which privilege is claimed to be sealed unread and
delivered to the court. The respondent chose not to intimate the application D
for the search warrant to the complainers and so give the complainers the
opportunity to make representations to the sheriff about legal privilege.
[11] Having read and copied the search warrant Mr Watson requested the
police officers who were seeking to execute it not to do so before he was able
to consider further action. The police officers agreed to delay in executing the
warrant. They remained in or about the complainers’ office during the course
of the day and were only to leave it at about 17.30 hours following
communications between my clerk and representatives of the respondent, to
which I will refer later in this note. Mr Watson consulted with Mr Smith who E
telephoned Crown Office with a view to discussing matters with an advocate
depute. He spoke to an advocate depute who advised him that this was a
matter under the direction of the National Sexual Crimes Unit and referred
Mr Smith accordingly. At about 13.47 hours Mr Smith had a telephone
conversation with a named official of the unit. He attempted to convey his
concern that an application for the warrant had been made without intimating
the intention to do so to the complainers and to contrast this with what had
been said by the Lord Justice-General in H Complainers. The official was
unsympathetic to Mr Smith’s representations and disinclined to enter into F
discussion. She indicated that she was aware of the decision in H Complainers
but, although she had not read it, she considered it particular to its facts which
included the involvement of English solicitors and English procedures. She
stated “I have been doing it this way for 20 years”, from which Mr Smith
understood that she did not propose to allow what was said in H Complainers
to inform her established practice. Mr Watson also spoke with the official. She
described the efforts on the part of the complainers to protect their clients’
legal privilege as a “serious matter of obstructing justice”. In the face of what G

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 486 Clyde and Co. (Scotland) LLP v Richardson 2016 S.C.C.R.

A Mr Smith characterised to me in submission as “this intransigence”, the bill of

suspension was drafted and presented.
[12] As I have already explained, Mr Smith and Mr Watson came before
me in chambers, at little before 17.00 hours on 22 July 2016. I was assisted by
Mr MacPherson DCJ. Having regard to the criticisms levelled by Mr Smith
against the respondent and those acting in his name I adjourned the hearing in
order that Mr MacPherson might alert Crown Office of what was taking place
and to invite representation of the respondent if so advised. Mr MacPherson
was able to speak to a member of staff of the Crown Office and Procurator
B Fiscal Service who involved others including the official with whom Mr Smith
had spoken. By this time it was after 17.00 hours on what was a Friday evening.
The offer to hear any representations through an advocate depute was not
taken up but Mr MacPherson was led to understand that a “guarantee” had
been given “to stand down the police”.
[13] What Mr MacPherson had learned was reported to me in the presence
of Mr Smith and Mr Watson and the hearing resumed. Mr Smith renewed his
motion for interim suspension of the search warrant. While perhaps explicable
C by reason of the lateness of the hour, the shortness of notice and the absence
of necessary personnel, the respondent had not availed himself of the
opportunity to be represented, to make any explanation or to put forward any
undertaking or other proposal in precise terms. While the “guarantee” reported
by Mr MacPherson could be interpreted as an undertaking not to execute the
search warrant that day it was unclear whether it went beyond that. It was also
unclear who it was who was giving the undertaking. Mr Smith’s conversation
with the named official, whom he understood to be responsible for this
investigation, had not given him confidence that she understood the importance
D of legal privilege or what the Lord Justice-General had recently said about the
need to put in place procedural mechanisms effectively to protect it.
[14] I was not addressed (I had not asked to be addressed) on the
competency of a single judge of the High Court of Justiciary suspending a
warrant. I would suppose that it would not be competent for him to do so,
suspension being a matter for a quorum of the Court: cf, Stewart v Harvie at
para.3. However, I would see granting an application for interim suspension at
the stage of first orders to be different. It is of the nature of remedies for
preserving the status quo in the face of a threatened wrong that they be
E available quickly and on summary application. As here there will be
circumstances where a complainer seeks suspension of a warrant before it is
executed on the grounds that execution would be wrongful and damaging to
the interests of the complainer. In practical terms, if interim suspension cannot
be granted by a single judge then a remedy will not be available. Moreover, I
observe that in Morton v Mcleod Lord Cameron, sitting alone, entertained an
application for interim suspension of sheriff court summary proceedings,
albeit that he concluded that suspension was not competent before trial.
F [15] Of course, having a power and being justified in exercising it are very
different things. Suspension of a warrant, even ad interim, is not something to
be done lightly. What is being sought to be set aside is a decision of the sheriff
who has primary jurisdiction and whose duty it is to grant a warrant only
when he is satisfied that it is lawful to do so.
The importance of that duty and its conscientious performance was stressed
by Lord Justice-General Rodger in Birse v HM Advocate at p.511 by quoting
what had been said by Lord Justice-General Clyde in Hay v HM Advocate at
p.46:
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 2016 S.C.C.R. Clyde and Co. (Scotland) LLP v Richardson 487

“Although the accused is not present nor legally represented at the A

hearing where the magistrate grants the warrant to examine or to search,
the interposition of an independent judicial officer affords the basis for a
fair reconciliation of the interests of the public in the suppression of crime
and of the individual, who is entitled not to have the liberty of his person or
his premises unduly jeopardised. A warrant of this limited kind will,
however, only be granted in special circumstances. The hearing before the
magistrate is by no means a formality, and he must be satisfied that the
circumstances justify the taking of this unusual course, and that the warrant
asked for is not too wide or oppressive. For he is the safeguard against the
grant of too general a warrant.” B

However, in determining whether a warrant should be suspended this court is

not only concerned with the decision-making of the sheriff or other magistrate;
it is also concerned with the actions of the party (here the respondent) who
has applied for the warrant. Where these actions are oppressive the warrant
will be suspended.
[16] I consider that the actions of the respondent in applying for the search
warrant on the basis of his petition to have been oppressive. As I have attempted
to explain, the petition was misleading, if not simply inaccurate. High standards C
of accuracy are always required of a party seeking a remedy ex parte. Separately
from that, the very highest standards are always expected of the Crown. Were
it otherwise our criminal practice would be different. Here the requisite
standards were not met. If it be the case that the respondent proceeded on a
police report which simply reflected the detective constable’s understanding
of the issues, that was not good enough. The respondent was obliged to ensure
the accuracy of his averments insofar as that was practical. There was no
question of urgency. The respondent was aware that he was seeking to recover D
clients’ files held by solicitors and therefore was on notice that privilege as well
as confidentiality was likely to be in issue. There was no reason to believe that
the complainers would act improperly. An obvious and easy step would have
been to contact them directly in order to discover what was in fact in issue. It
is true that it might have been better had the complainers’ letter of 11 July
2016 been addressed to the respondent rather than to the sheriff clerk, but the
onus was on the respondent who as a public authority was proposing to
interfere with art.8 rights as well as rights which have been explicitly and
repeatedly recognised in Scotland for more than 200 years (Executors of Lady E
Bath v Johnston, noted by Lord Wood in McCowan v Wright at p.237) to make
sure of his facts.
[17] Not only is what is averred in the respondent’s petition inaccurate, it
does not support the very wide terms of the crave for a warrant which extend,
without any limitation of time whatsoever, to “any other evidence which may
be material to the investigation into the alleged abuse at (L) held by said Clyde
& Co, whether in a computer system or otherwise”. It will be recollected that
the averments relate only to supposed originals (presumably in paper) of
documents already provided as copies. Moreover, in disobedience to what is F
prescribed by the Lord Justice-General at para.30 in H Complainers, no
provision is made in the petition for either independent supervision of the
police search by a commissioner appointed by the court or the inclusion of a
requirement that any material seized should be sealed unread and delivered to
the court to enable the sheriff to adjudicate upon the issue.
[18] The oppressive conduct of the respondent was not limited to the
presentation of an inaccurate and misleading petition, the averments in which
bore little or no relationship to the crave and which omitted provision for the G

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 488 Clyde and Co. (Scotland) LLP v Richardson 2016 S.C.C.R.

A independent supervision of any police search. He failed to give intimation of

his intention to apply for the search warrant. Again that is in direct disobedience
to what the Lord Justice-General prescribed at para.28 of H Complainers. On
the basis of this failure alone I consider that it was oppressive to apply for the
search warrant, but the various culpable deficiencies in the petition put the
matter beyond doubt. I have accordingly been satisfied that the complainers
have put forward a sufficient basis for suspension ad interim, subject only to
consideration of what is to be made of the “guarantee” given to Mr MacPherson.
[19] Before turning to the “guarantee”, I should indicate that had it been
B necessary to do so I would have held that sufficient had been put before me to
suggest that the sheriff had erred in granting the warrant in the terms he did
to such an extent as to render the warrant unlawful. It is true that the petition
did not provide the sheriff with the assistance that he was entitled to expect
from the respondent, but there was enough that should have been regarded as
anomalous in this application to have put the sheriff on notice that further
inquiry was required before granting the warrant. I have already mentioned
these points when considering the respondent’s actions but in summary they
C are as follows: (1) the averment of refusal to release documents on reasons of
client confidentiality when copies of the documents have already been provided
to the police is so illogical as to require explanation; (2) the width of the crave
which is not supported by averments and therefore had no basis upon which
it could properly be granted; (3) the mere fact that the havers of the documents
were solicitors should have been enough to make a sheriff aware that legal
privilege was a likely issue (H Complainers at para.27) and required to be
protected; and (4) the failure to intimate the application to the complainers
and the giving to them of an opportunity to be heard in the absence of
D averments of: (i) urgency; (ii) risk of destruction or concealment; or (iii) any
wrongful or improper behaviour whatsoever on the part of the complainers. In
my opinion by granting the search warrant in the terms that he did it can only
be inferred that the sheriff, for whatever reason, failed to give the petition the
degree of scrutiny required of an application for search and seizure, as
explained in Hay v HM Advocate.
[20] I return to the question of the “guarantee”. Suspension is a discretionary
remedy and in deciding whether to suspend ad interim regard is to be had to
the interests of justice and with them the practicalities of the matter. The
E question of necessity comes into that. It might be said that there is no need to
suspend a warrant if it is not intended to enforce it. The “guarantee” reported
by Mr MacPherson suggested that there was no current intention on the part
of the respondent or those acting in his name to enforce the search warrant.
However, in the absence of any representative of the respondent before me
with the authority to give a precise undertaking I was left in doubt as to
precisely what was being “guaranteed” and who, and with what authority, was
giving the guarantee. The history of the matter, at least as presented ex parte,
F did not suggest that the respondent had a very secure understanding of his
obligation to give accurate and complete information to the court, to follow
the guidance provided by H Complainers or otherwise to protect individual
rights. An expression of willingness to negotiate on the part of the official from
the Sexual Crime Unit earlier in the afternoon might have put a different
complexion on matters. There was something unsatisfactory in the apparent
immediate collapse of the position taken on behalf of the respondent when an
opportunity was given to defend the warrant, albeit that the lateness of the
hour may have contributed to that. Then there is the question of accountability.
G I heard what I consider to be quite serious criticisms of representatives of the

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 2016 S.C.C.R. Clyde and Co. (Scotland) LLP v Richardson 489

Crown but I did not hear from the respondent in reply. It is appropriate that A
the respondent is given the opportunity, which a further hearing would afford,
to explain, provide any other relevant information and to correct any
misapprehensions or errors in fact or law on my part. I accordingly decided to
suspend the search warrant ad interim, to grant warrant for service and to
continue matters to a hearing to be fixed. A copy of this note will be provided
to the respondent as well as to the complainers.
[21] By way of postscript I would add that subsequent to the issue to parties
of a note in terms of the previous 20 paragraphs, I have had the opportunity
of considering a report prepared by the sheriff who granted the warrant. The B
sheriff prepared that report in light of what is averred in the bill of suspension.
The sheriff’s report is dated 1 August 2016. It gives no indication that the
sheriff has had sight of my note as issued to parties.
[22] The sheriff reports that the warrant was granted by him on 21 July
2016 on what was a second application, the Crown having originally sought a
warrant in wider terms which the sheriff had not been prepared to grant. The
sheriff further reports that he was informed by the respondent’s depute that
the complainers had refused to release documents, other than originals of the C
documents already seen by the police. I would observe that while this may be
what the respondent meant by the averment: “The solicitor has indicated that
they will provide the originals of the documents already provided in copy
format only”, that would appear to be contradicted by the immediately
preceding averment: “(S) have indicated that the originals of [previously
provided documents] are held by their legal representatives, Clyde & Co . . .
the solicitor has refused to release these documents, citing reasons of client
confidentiality.” The sheriff goes on to report that he was not informed that
the complainers had made any offer to cooperate, or that they had written to D
the court to request such notification. The sheriff explains that had he known
of any willingness to release selected new material, he would have continued
the application pending voluntary production by the complainer, to ascertain
whether production could take place without the need for a warrant. Had he
known of any written request such as that which the complainers had directed
to the sheriff clerk, the sheriff explains that he would have continued the
application for a hearing at which the complainers could be represented.
E

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