The Appeal Court of the High Court of Justiciary refused to pass a Bill of Suspension which sought the suspension of a warrant authorising the arrest of a man charged with assault to severe injury. 
In November 2020, Mr Docherty, the petitioner, was charged with assault to severe injury. He was released from custody and issued with an undertaking at Dunoon Sheriff Court on the 10th of December 2020. He attended court; however, he was informed that his undertaking had been cancelled. 
In July 2021, the Crown sought a petition warrant from the sheriff which authorised the arrest of the petitioner. The sheriff who was not made aware of the prior proceedings, signed the warrant. As a result, the petitioner was detained and later released on bail prior to being indicted. It was argued on behalf of the petitioner that the Crown’s conduct was oppressive, and that full disclosure should have been made to the Sheriff. He stated that if this had been the case then the sheriff would have granted the warrant on the basis that he would initially be invited to attend court on a voluntary basis. The sheriff refuted this position. It was further submitted that the conduct breached Article 5 of the ECHR, which states that deprivation of liberty must be in accordance with a procedure prescribed in law.  
The Crown’s position was that the petition warrant was sought as it was the only way in which to commence solemn proceedings short of serving the indictment. It was argued that details of prior proceedings were irrelevant and the petition had contained all the necessary information. 
The opinion of the court was delivered by Lord Carloway, who said: “Because the petition warrant had such a limited purpose, there was no requirement on the part of the sheriff, at the stage of presenting the warrant, to do other than ensure that the warrant was in proper form; ie that it sufficiently described: the informer (the PF); the accused; and the charge. The sheriff’s function at the stage of granting the warrant is only to check its legality. The time for examining the information and deciding whether the accused should be committed and granted bail, would only arise when the accused appeared before the sheriff. That remains the position.”
He continued: “When a sheriff is presented with a petition in advance of any appearance, he or she will almost always grant the warrant; it being sufficient that the application is made by the public prosecutor, who is under an obligation not to seek a warrant in the absence of some evidential basis for doing so. The sheriff does not enquire into whether the arrest element should be executed; that being a matter for the judgement of the procurator fiscal.”
He concluded: “In these circumstances, the legal basis for suspending the warrant in the Bill is not made out. The court will refuse to pass the Bill accordingly. If the PF did instruct the detention of Mr Docherty when it was not necessary to do so, that could potentially constitute oppressive conduct. The instruction would not invalidate the warrant, although it may give rise to other remedies.”