Jie Lin, Sheng Lu, Qing Guang He and Xin Chen v. Her Majesty's Advocate [2012] HCJAC 151

Bill of suspension:- On 17 August 2012 at Edinburgh Sheriff Court the appellants all appeared on a petition libelling various contraventions of the Misuse of Drugs Act 1971. They were all committed for further examination and appeared again on 24 August 2012, when the procurator fiscal depute moved the sheriff to imprison the appellants until liberated in due course of law. All four appellants opposed the procurator fiscal depute's application for a warrant for imprisonment on the basis of insufficiency of evidence. The sheriff held that it was not part of a sheriff's function, at that stage of the proceedings, to rule on questions of sufficiency, the Crown had confirmed that there was sufficient evidence and that was an end of the matter and all four were fully committed until liberated in due course of law. Each appellant lodged a Bill of Suspension challenging the grant of the warrant for imprisonment until liberated in due course of law. Here it was argued that the use of a Bill of Suspension was competent to challenge a warrant of committal and, whilst the court had yet to provide a definitive view on what test should be applied when deciding that a suspect on petition could be committed, it was submitted that the information available was not sufficient to justify the warrant. The Crown accepted that it was competent to review a warrant to commit a suspect to prison by way of Bill of Suspension, however, such a Bill was only competent to challenge a warrant which was not ex facie valid, or where there was some other clearly identifiable problem, such as oppression and that was not the position here. Here the court held that the Bills were incompetent as the warrants were not fundamentally defective nor did their presentation by the procurator fiscal did not amount to oppression. It was observed that a sheriff would be in error if he had failed to listen to submissions concerning the committal warrant, in so far as it was submitted that the procurator fiscal was acting oppressively in seeking committal, for example where there was no proper basis for seeking committal, however, that was not the case here as custody statements had been served on the appellants which outlined prima facie cases against each of them and the Bills were accordingly refused.