Her Majesty's Advocate V. David Alexander
| Jurisdiction | Scotland |
| Judge | Lady Stacey |
| Neutral Citation | [2011] HCJ 68 |
| Court | High Court of Justiciary |
| Docket Number | IN821/10 |
| Date | 05 July 2011 |
| Published date | 20 March 2012 |
| HIGH COURT OF JUSTICIARY | |
| [2011] HCJ 68 IN821/10 OPINION by THE HONOURABLE LADY STACEY in causa HER MAJESTY'S ADVOCATE against NEIL FOTHERINGHAM, WILLIAM EDWARDS, DAVID ALEXANDER AND ANTHONY LOWELL _______ |
Act: Ferguson QC, AD,; Crown Agent
Alt: McMenamin QC; Latif. McQuillan Glasser and Waughman, Hamilton
5 July 2011
[1] This indictment against four accused called for trial in the High Court in Glasgow on 11 April 2011 and the following days. The trial did not proceed to the jury as a motion to desert made by counsel for Mr Edwards was granted. Prior to any evidence being led counsel for Mr Alexander sought to challenge by minute the admissibility of certain evidence and I heard argument on that. I refused the minutes and evidence was led over a number of days. After the case had been deserted I was invited by the Crown to write on my reasons for refusing the minutes.
[2] Senior counsel tendered a minute in terms of section 79(2)(b)(iv) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) and a devolution minute on 5th and 6th April respectively. On the first day of trial she moved to have these minutes heard though late. The Crown had had notice of the minutes. I was informed by senior counsel that the minutes were late because she had been instructed in the case late and had taken a view that the matter should be raised and had drafted the minutes as soon as possible. In all of the circumstances I allowed the minutes to be received and argued.
[3] Senior counsel informed me that she and the Advocate Depute were agreed that the correct procedure would be for the Crown to explain why the evidence that she sought to challenge was in the Crown's submission admissible. There was no need for evidence as the parties were agreed as to the facts as set out in Joint Minute of Agreement as follows:
"That the Advocate Depute and Latif counsel for the accused hereby agree and concur that the following facts are hereby admitted:
1. That on 16 September 2010 David Alexander (the Minuter) was detained at his place of employment at Hill Street Wishaw in terms of section 14 of the Criminal Procedure (Scotland) Act 1995. The time of the detention is recorded as being 0925 hours. The minuter was taken to Hamilton Police Office. The time of the Minuter's arrival is recorded as 0945. The detention of the Minuter was accepted by the custody officer at 0948 hours. Reference is made to Crown Productions 27 and 28.
2. That on 16 September 2010 the Minuter was interviewed at Hamilton Police Station by D. C. Conway and D.C. McDonald. The Minuter was allowed access to his solicitor for legal advice before the commencement of the interview. The interview commenced at 1320 and was terminated at 1337. The Minuter's solicitor was present for the duration of the interview. The interview forms Crown Production 42. At the termination of the interview the Minuter was charged.
3. That on 16 September 2010 the Minuter's solicitor left Hamilton Police office at 1339.
4. That on 16 September 2010 at Hamilton Police Office at 1545 Stuart Livingstone and Andrew Duffin, both witnesses and both designed as force support officers took from the Minuter evidential samples described as 'DNA sample 1 and DNA sample 2'. These form Crown label 20.
5. That on 16 September 2010 at Hamilton Police Office at 1527 Stuart Livingstone and Andrew Duffin both witnesses and both designed as force support officers took the Minuter's finger prints. These form Crown Production 78".
[4] Senior counsel explained that the Minuter was interviewed between 13.20 and 13.37 with his agent present. During the course of that interview police officers asked him if he knew anything about DNA and forensic medicine and asked if he had a twin brother. At the end of the interview he was told that he would be cautioned and charged and "processed" and that it would then be decided whether he was to be released on bail or not. At the end of the interview he was informed by the police that they would take him and process him and "change his status". He was cautioned and charged. At 15.45 the police officers took a mouth swab for the purpose of DNA comparison. The taking of that swab was documented in a form, Crown Labelled Production 20 in which paragraph 7 was headed "subject status" and below that were various boxes as follows:
"Arrested
Section 14
Charged
Elimination (under caution)"
The first box, that is "Arrested" had been ticked, which was incorrect as the accused had been not only arrested but also charged. Counsel told me that fingerprints were also taken at that time and when I asked her if she was seeking to have the fingerprint evidence excluded she said that she was as she was arguing that everything after the time of charging was inadmissible. She said however that she would concentrate on the mouth swab.
[5] The preliminary issue minute stated that objection was taken to the admissibility of a DNA sample. The minute narrated the facts as set out above. The minute stated that sections 18(2) and 18(6A) of the 1995 Act are not operative once a person has been charged. Further, it states that the taking of a swab was an interference with accused's private life, and as it was not carried out in accordance with law, it was a breach of the accused's rights under Article 8 of the European Convention on Human Rights. The devolution minute stated that the breach of Article 8 as outlined above having occurred, and use of the evidence thereby obtained would result in an unfair trial.
[6] The Advocate depute began by pointing out that neither minute made clear that the accused raised any point about fingerprints and he had understood that the only point raised was that of the swabs for DNA. He argued that the question before the court was whether or not the taking of the mouth swab was lawful. If the answer to that was "yes" then the minutes would fall to be repelled. He argued that if the answer was that the taking of the swab was irregular, then he would argue that it was excusable in light of the case of Lawrie v Muir 1950 J.C. 19. I agree with the Advocate depute that the minutes do not refer to the fingerprints and I did not consider that any argument other than that concerning the mouth swab was properly before me.
[7] Section 18 of the 1995 Act so far as relevant is as follows:
"18 (1) This section applies where a person has been arrested and is in custody or is detained under section 14(1) of this Act.
(2) A constable may take from the person, or require the person to provide him with, such relevant physical data as the constable may, having regard to the circumstances of the suspected offence in respect of which the person has been arrested or detained, reasonably consider it appropriate to take from him or require him to provide, and the person so required shall comply with that requirement.
(3)....
(4)....
(5)....
(6) A constable may, with the authority of an officer of a rank no lower than inspector, take from the person -
(a) from the hair of an external part of the body other than pubic hair, by means of cutting, combing or plucking, a sample of hair or other material;
(b) from a fingernail or toenail or from under any such nail, a sample of nail or other material;
(c) from an external part of the body, by means of swabbing or rubbing, a sample of blood or other body fluid, of body tissue or of other material;"
(6A) A constable, or at a constable's direction a police custody and security officer, may take from the inside of the person's mouth, by means of swabbing, a sample of saliva or other material.
(7)....
(7A) For the purposes of this section and sections 19 to 20 of this Act "relevant physical data" means any:-
(a) fingerprint;
(b) palm print;
(c) print or impression other than those mentioned in paragraph (a) and (b) above, of an external part of the body;
(d) record of a person's skin on an external part of the body created by a device approved by the Secretary of State."
(7B)....
(8) Nothing in this section shall prejudice:-
(a) any power of search;
(b) any power to take possession of evidence where there is imminent danger of its being lost or destroyed; or
(c) any power to take prints, impressions or samples under the authority of a warrant".
[8] The Advocate depute submitted that the swabs had been taken at a time when the accused had been arrested and was in custody. Therefore on a straightforward literal reading of the section he was a person to whom section 18 applied. The argument from the defence was that once he had been charged he was under the protection of the Court and that no sample could be taken unless there was informed consent or a warrant. The Advocate depute submitted that the section does not recognize any difference between a person who has been arrested and is in custody or is detained under section 14 and a person who has been detained, arrested and charged. He submitted that the scheme of the section was that once a person had been detained, which by definition would require that there was a reasonable suspicion that he had committed an offence, then the samples referred to in section 18 could lawfully be taken from him. The defence appeared to agree that such samples could have been taken either immediately on detention or at sometime during the interview process so long as they were taken before the end of the process at which stage the accused was charged. Therefore if the police officers had told him that he was arrested; if they had taken a sample; and immediately thereafter had charged him, the defence would not argue that the sample had been taken unlawfully. The Advocate depute submitted a proper construction of the 1995 Act involved reading section 18 as applying to those who had been charged as it applied to those who had not. The Advocate depute put before me the Scottish Law Commission Report on Evidence; Blood Group Tests, DNA Tests and Related Matters, 18 October 1989. Nowhere in...
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