Adair v McGarry
| Jurisdiction | Scotland |
| Judgment Date | 21 June 1933 |
| Date | 21 June 1933 |
| Docket Number | No. 12. |
| Court | High Court of Justiciary |
HIGH COURT. FULL BENCH
Lord Justice-General. Lord Justice-Clerk. Lord Hunter. Lord Sands. Lord Morison.
Police Force—Powers of constables—Right to take finger-prints of person apprehended but not committed to prison—Whether warrant necessary—Procedure—Identification of criminal—Penal Servitude Act, 1891 (54 and 55 Vict. cap. 69), sec. 8, and relative Regulations.
By Regulations, dated 20th August 1904, made under the Penal Servitude Act, 1891, sec. 8, it is enacted that untried criminal prisoners shall not be measured while in prison save by order of the Secretary for Scotland or upon a Sheriff's or magistrate's warrant.
Held by a full bench (diss. Lord Hunter) that, at common law, the police were entitled, without a warrant, to take the finger-prints of a person apprehended on a criminal charge but not yet committed to prison; and that their right to do so was unaffected by the statute and regulations referred to.
Adamson v. Martin, 1916 S. C. 319,distinguished.
M'Garry's Case.
James Lyons M'Garry was charged, in the Sheriff Court of the Lothians and Peebles at Edinburgh, at the instance of James Adair, Procurator-fiscal, Edinburgh on a complaint which set forth that, on 22nd February 1933, the accused had broken into the premises at 37 Lochend Road, Leith, occupied by David Kennedy, licensed grocer, and had stolen therefrom twenty-six Pint bottles of whisky, four quart bottles of port, one quart bottle of sherry, and a bottle of ginger ale. The accused pleaded not guilty.
The Sheriff-substitute (Jameson), after a joint minute of admissions had been lodged by the parties, found the accused not guilty, and, at the request of the Procurator-fiscal, stated a case for appeal to the High Court of Justiciary.
The case set forth that the facts, which were admitted, were as follows:—"(1) The premises at 37 Lochend Road, Leith, are occupied by David Kennedy as a licensed grocer's shop. They were duly closed and secured by him about 1.15 p.m. on Wednesday 22nd February 1933. (2) The premises were later same day broken into by removing a wire guard from a stanchioned window at the rear, bending apart two stanchions, and forcing up the lower sash of the window, which had been left unsnibbed. (3) Investigations showed that there was stolen from the premises by means of this housebreaking 26 pint bottles of whisky, 4 quart bottles of port, a quart bottle of sherry, and a bottle of ginger ale. (4) The stolen property was concealed by the housebreaker or housebreakers in a washhouse situated at the rear of the property, and was there later discovered by an occupant of one of the adjoining houses and taken possession of by the police. (5) On three of the bottles stolen were finger impressions. These were specially examined and treated, and the finger-prints photographed and printed for examination and comparison. (6) On Friday, 3rd March 1933, the respondent was arrested, charged with the theft by housebreaking referred to, and detained. (7) The finger-prints of the respondent were then taken in the police office by officers trained in that behalf. No warrant from any magistrate was sought or procured for this purpose. The consent of the respondent to the taking of the prints was not asked, and he was not advised of any right to decline such consent. (8) An examination of such finger-prints showed that the print on one of the three bottles recovered and referred to was identical with that of the left thumb of the respondent, a close examination revealing 16 ridge characteristics in agreement in each print. Further proof was not led for either party. The facts as admitted in the minute are the facts found by me in the case."
The case further stated:—"After hearing parties I held that the finger-prints of the respondent had not been taken according to law, and that I was not entitled to take into consideration the evidence obtained from them. I found the respondent not guilty."1
The questions of law for the opinion of the Court were:—"(1) Was I entitled to receive as evidence the finger-prints of the respondent? (2) If the first question is answered in the affirmative, was I entitled to find the respondent not guilty?"
Byrne's Case.
Anthony Byrne was charged in the Sheriff Court of Lanarkshire at Glasgow on an indictment at the instance of His Majesty's Advocate, which set forth that on 18th or 19th June 1932 the accused had broken into the premises occupied by Lang's, Limited, at 85 West George Street, Glasgow, and had there stolen a home safe and five shillings of money. He pleaded not guilty.
The panel was tried on 21st March 1933 before Sheriff substitute Berry and a jury. The jury, by a majority, returned a verdict of guilty, and he was sentenced to eighteen months' imprisonment.
The panel thereupon appealed to the High Court of Justiciary against this conviction, in terms of the Criminal Appeal (Scotland) Act, 1926, on the ground that evidence tending to connect him with the crime charged had been incompetently admitted notwithstanding objection thereto at his instance.
The following is a summary of the material facts in the case:—On the afternoon of Saturday, 18th June 1932, the premises of Lang's, Limited, at 85 West George Street, Glasgow, which were occupied as a restaurant, were duly closed and locked for the day. In the early morning of Sunday, 19th June, the police discovered that the premises had been broken into, and a home safe and certain money stolen. The safe was afterwards found on adjoining premises, and impressions of finger-prints appearing on it were taken by the police. On 7th December 1932 the panel was apprehended, brought before the Central Police Court, Glasgow, and remanded in custody. The same day application was made for authority to take his finger-prints, and warrant was granted and his finger-prints were taken. Thereafter he was again brought before the Central Police Court and remitted to the Sheriff, by whom he was committed to prison. After he had been committed
to prison his finger-prints were again taken without further warrant. Photographs of these latter finger-prints were tendered at the trial as evidence that the finger-prints appearing on the safe were those of the panel, and the Sheriff-substitute admitted this evidence.The panel's objection to the evidence was that the finger-prints were unlawfully taken, in respect that, at the date of the warrant authorising them to be taken, the panel was not, as required by the Penal Servitude Act, 1891,2 section 8, and the Regulations for the Measuring and Photographing of Criminal Prisoners of 20th August 1904,3 a prisoner for the time being confined in a prison, and that the warrant was therefore ultra vires and invalid, or otherwise, if valid, had been exhausted by the taking of the panel's finger-prints on 7th December 1932.
M'Garry's case was heard before the High Court of Justiciary, consisting of the Lord Justice-General, Lord Sands, and Lord Morison on 23rd May 1933. Byrne's case was called before the High Court, similarly constituted, on 25th May, but was not heard. Thereafter the Court appointed both cases to be heard before a Full Bench.
On 31st May 1933, the cases were heard together before a Full Bench.
At advising on 21st June 1933,—
LORD JUSTICE-GENERAL (Clyde).—In M Garry's case, a licensed grocer's shop was broken into, and certain bottles of liquor were stolen therefrom. The stolen bottles were discovered by the police in a washhouse nearby. On three of these bottles there were finger impressions, and the impressions were photographically enlarged by instructions of the police. A few days afterwards the respondent was arrested on suspicion of being the housebreaker; and, while he was in the cells and before committal to prison, the police took impressions of the respondent's fingers, and these impressions were photographically enlarged for comparison with the enlarged finger impressions on the bottles. They proved to be identical. The respondent's consent was neither asked for nor obtained to this procedure, which was adopted by the police without any magistrate's warrant. The question is whether, in these circumstances, the finger impressions taken in the cells, and the comparison thereof with the finger impressions on the bottles, could be received as evidence pro tanto of the identity of the respondent with the housebreaker.
The case for the respondent is that they could not be so received because—as he argued—the finger impressions taken in the cells without his consent were illegally taken. There is authority in both civil and criminal cases which points to the view that evidence, otherwise competent, is not to be rejected because it has been obtained by illegal means—Rattray v. RattrayUNKSC14;Crook v. Duncan.15 But the Lord Advocate very properly declined to stand upon this; and conceded that, if the finger impressions taken in the cells were illegally taken, they should not be regarded as evidence in the present case.
It is worth while to observe, in the first instance, what the evidence provided by finger impressions truly consists in. Taking the present case—it consists in the exact correspondence of the actual finger impressions on the bottles with the actually existing ridges on the skin of the respondent's fingers. The comparison is, no doubt, facilitated by the finger impressions taken in the cells, and also by the photographic enlargements of those impressions and of the impressions on the bottles. But, in truth and in substance, the evidential process is not distinguishable from that which is familiarly followed in making a comparison between foot marks on soft ground outside premises which have been broken into and the boots which the person accused of breaking into them is wearing when arrested. It would be startling to be told that, in such a case, the police (having duly arrested the accused) were not entitled before...
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