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Scottish police who required case evidence from England have been given leave to appeal. Roger Pearson reports.
THE HOUSE of Lords is to investigate the restrictive impact of the Police and Criminal Evidence Act 1984 (PACE) when authorities in Scotland seek to come south of the border in search of evidence.
The case, which has imp-lications in respect of media freedom not to reveal sources of information, centres on a search warrant issued in Scotland, and later endorsed by a magistrate in Manchester, for the premises of Granada TV.
The moves were taken after Granada broadcast an interview in 1997 with an inmate in a Scottish prison, who admitted to having unprotected sex even though he knew he was infected with the HIV virus.
In return for the interview, Granada had promised him anonymity.
However, a woman who claimed she was the sexual partner referred to, and who said she had been infected, then came forward.
As a result Strathclyde police took the view that her allegation gave rise to at least prima facie evidence for charges against the man, of causing harm by culpable and reckless conduct.
The police needed further evidence to back such charges, and in those circumstances obtained a warrant from the Sheriff Court of Glasgow and Strathkelvin to enter Granada's premises and search for and seize the evidence they required.
That warrant was issued under the provisions of the Criminal Justice (Scotland) Act 1995 and was endorsed by a Manchester Stipendiary magistrates under the provisions of the Summary Jurisdiction (Process) Act 1881.
Granada, however, successfully challenged the moves, arguing that the provisions of PACE blocked the signing of a warrant involving a search for material, including various pieces of journalistic material protected by provisions in PACE.
Mr Justice Sedley held in the High Court on 16 October last year that the Manchester stipendiary magistrates endorsement on the search warrant should be quashed on the basis that, among other things, the geographical scope of PACE was applicable only in England and that this excluded warrants issued in Scotland from the range of the Act.
He ruled, that under the circumstances, the 1881 Act, under which the magistrate endorsed the warrant to permit the search, had ceased to have effect by the time of the endorsement.
Now leave has been given for an appeal to the House of Lords against this decision.
The certified point of law on which the appeal is to be brought centres on whether s9(2) of the Police and Criminal Evidence Act does not apply to s4 of the 1881 Act, so as to preclude endorsement and execution in England of search warrants, such as the one in this case, which have been issued in Scotland.