HM Advocate v Edwards and Alexander
| Jurisdiction | Scotland |
| Judgment Date | 10 January 2012 |
| Neutral Citation | [2012] HCJAC 9 |
| Date | 10 January 2012 |
| Docket Number | No 32 |
| Court | High Court of Justiciary |
High Court of Justiciary
Justiciary - Criminal procedure - Common law warrant - Crown concluding that DNA and fingerprints samples taken by police had not been lawfully obtained - Crown seeking warrant from court authorising the taking of fresh samples - Whether the High Court had jurisdiction to grant the warrant sought - Criminal Procedure (Scotland) Act 1995 (cap 46), secs 14, 18
The two accused had been detained. Each had been interviewed at a police station on the day of detention, at the conclusion of which each had been cautioned and charged with various offences. In each case a few hours later a DNA sample in the form of mouth swabs had been taken, along with fingerprint samples by police officers.
The accused stood trial in April 2011, in the course of which proceedings were deserted pro loco et tempore against them both. A further indictment was served and a dedicated floating trial diet fixed for 9 January 2012.
Following the decision in HM Advocate v Cowie ([2011] HCJAC 111; 2012 JC 203), issued on 2 November 2011, the Crown concluded that the samples which had been taken had not been lawfully obtained. Petitions at the instance of the Crown were presented at common law, seeking warrants from the court, authorising the taking of DNA and fingerprint samples from each of the accused. These applications were opposed on the grounds of merits and competence.
The Crown argued that there was a concurrent jurisdiction between the sheriff court and the High Court in relation to such matters and that in an application which related to a case proceeding in the High Court, it was more appropriate that it be heard before a judge of that court.
It was argued on behalf of the accused that such warrants could not be competently granted in the High Court. In granting such a warrant the sheriff was exercising a power which flowed from his historical function as the person responsible for investigating crime, whereas the judges of the High Court had never entertained such a function.
In respect of the merits of the application the Crown argued that the questions for the court were, first, whether special circumstances existed and, secondly, whether the public interest in the investigation and suppression of crime outweighed the interests of the accused. Special circumstances had been found to be present in cases concerning an administrative error on the part of the police. The administrative error made in this case had not been of an extreme nature and had been made in good faith. The public interest would not be served by the accused avoiding justice on the basis of what could properly be described as a technicality. Special circumstances could be seen to be present and the relevant balance came down in favour of granting the Crown's applications.
For the first accused it was argued that the Crown had failed to establish the presence of anything that could properly be called special circumstances. What had been described was a systemic failure by the police to comply with the law. The limited extent and importance of the evidence under consideration should be born in mind in the balancing exercise, as was the stage at which the present application had come before the court. Taking account of all of these features, the balance would fall in favour of refusing the Crown's application.
The second accused adopted the submissions advanced on behalf of the first accused. It was pointed out that the court in HM Advocate v Cowie had not innovated to any extent on the law but had merely declared the law to be as it had always been. An error as to the law which had been present in the systemic way could not be an excuse and the late stage at which the application was made was an important and relevant feature.
Held that: (1) a judge of the High Court could competently grant a warrant at common law authorising the taking of either or both of the types of samples sought (para 20); (2) what had mattered had been the interposition of an independent judicial officer and the sheriff had no better jurisdictional claim to the grant of such a warrant than a judge of the High Court (para 20); (3) the application had been necessitated by routine police conduct based on what seemed to have been a systemic failure to appreciate the important change in status brought about by the act of charging the detainee (para 39); (4) the circumstances disclosed neither an administrative error nor the occurrence of something in the nature of a technicality relied upon by the Crown as amounting to special circumstances (para 40); (5) putting that characterisation aside, routine conduct based upon a systemic failure to appreciate the important change in status, could not have constituted special circumstances (para 40); and application refused.
Observed that: (1) had the court been satisfied that special circumstances had existed, the court's discretion would not have been exercised in favour of granting the application (para 41); (2) the granting of either of the warrants (sought in the circumstances of this case), would have impacted upon the interests of the accused to an unacceptable extent (para 48).
William Edwards and David Alexander and another were charged on indictment at the instance of the Right Honourable Elish F Angiolini QC, Her Majesty's Advocate, the libel of which set forth, inter alia, offences of breach of the peace, culpable and reckless discharge of a firearm and attempted murder. The accused tendered pleas of not guilty and the cause came to trial on 5 April 2011. On 29 April 2011 the trial was deserted pro loco et tempore against each accused. A further indictment was served and the accused appeared at a preliminary hearing on 14 July 2011 and a trial diet was fixed.
Following the decision in HM Advocate v Cowie petitions at the instance of the Crown were presented at common law seeking warrants from the High Court of Jusiciary authorising the taking of DNA and finger print samples from each of the accused. The petitions first called on 14 December 2011 in the High Court at Glasgow, on which date the applications were continued and each accused appointed to lodge answers. On 29 December 2011 counsel for the first accused indicated that the applications were to be opposed both on the grounds of the merits and competence. Consideration of the petitions was continued until 7 January 2012 at the High Court in Glasgow before Lord Turnbull. The application was refused on 10 January 2012.
Cases referred to:
Advocate (HM) v CowieSCUNK [2011] HCJAC 111; 2012 JC 203; 2012 SLT 709; 2012 SCCR 70; 2012 SCL 219
Advocate (HM) v Lukstins [2011] HCJAC 69; 2012 SLT 167; 2012 SCL 19
Advocate (HM) v Milford 1973 SLT 12
Ashif v Dunn [2011] HCJAC 106; 2012 SCL 198; 2011 GWD 37-756
Begley v NormandUNK 1992 SCCR 230
Cadder v HM AdvocateUNKWLR [2010] UKSC 43; 2011 SC (UKSC) 13; 2010 SLT 1125; 2010 SCCR 951; 2010 SCL 1265; [2010] 1 WLR 2601
Frame v HoustonSCUNK 1991 JC 115; 1992 SLT 205; 1991 SCCR 436
Hampson and ors v HM AdvocateUNK 2003 SLT 94; 2003 SCCR 13
Hay v HM AdvocateSC 1968 JC 40; 1968 SLT 334
Lawrie v MuirSC 1950 JC 19; 1950 SLT 37; 1949 SLT (Notes) 58
Lees v WestonSCUNK 1989 JC 35; 1989 SLT 446; 1989 SCCR 177
McGlennan v KellySCUNK 1989 JC 120; 1989 SLT 832; 1989 SCCR 352
McMurtrie v AnnanUNK 1995 SLT 642; 1994 SCCR 692
Morris v MacNeillUNK 1991 SLT 607; 1991 SCCR 722
Walker v LeesSCUNK 1995 JC 125; 1995 SLT 757; 1995 SCCR 445
White v RuxtonUNK 1998 SLT 105; 1997 SCCR 771
Wilson v Milne 1975 SLT (Notes) 26
Textbooks etc. referred to:
Alison, AJ, Principles and Practice of the Criminal Law of Scotland (Blackwood, Edinburgh, 1833), ii, 129, 130, 137
Dickson, D, and Vannet, A, "Criminal Procedure" in Stair Memorial Encyclopaedia: The Laws of Scotland (2nd reissue, Butterworths/Law Society of Scotland, Edinburgh, 2008), vol 6, para 108
Hume, D, Commentaries on the Law of Scotland Respecting Crimes with a supplement by Benjamin Robert Bell (4th ed, Bell & Bradfute, Edinburgh, 1844), ii, 77-80, 83; Supplement, 278, 393
RC, "On the Investigation of Crime in Scotland" (1864) 8 Journal of Jurisprudence 473
Renton, RW, and Brown, HH, Criminal Procedure according to the Law of Scotland (6th Gordon ed, W Green, Edinburgh, 1996), vol 1, Chs 2, 12; para 5.08
Russell, F, "On the Procedure in Criminal Prosecutions in Scotland Preliminary to Trial" (1870) 14 Journal of Jurisprudence 259
Stoddart, CN, Criminal Warrants (2nd ed, Butterworths, Edinburgh, 1999), para 1.13
Various, An Introduction to Scottish Legal History (vol 20) (Stair Society, Edinburgh, 1958)
The cause called before Lord Turnbull in the High Court of Justiciary, on 7 January 2012.
The application was refused, on 10 January 2012-
Lord Turnbull-
[1] In this case the present two accused have been indicted in the High Court along with a third co-accused on charges of breach of the peace, culpable and reckless discharge of a firearm, attempted murder by striking the complainer with an implement and shooting him and various other associated offences. The offences were said to have occurred on 14 August 2010.
[2] The procedural history of the case is as follows. The two accused against whom the present petitions are directed were first detained under sec 14 of the Criminal Procedure (Scotland) Act 1995 (cap 46) in respect of the matters on the indictment on 16 August and 16 September 2010 respectively. Each was interviewed under tape-recorded conditions at a police station on the day of detention and at the conclusion of their respective interviews each was cautioned and charged with various offences. In each case a few hours later DNA samples in the form of mouth swabs were taken along with finger print samples. In each case the samples were taken by police officers purporting to exercise the power granted by sec 18 of the Act. Thereafter the accused appeared on petition, were...
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