HM Advocate v Welsh or Cowie
| Jurisdiction | Scotland |
| Judgment Date | 02 November 2011 |
| Neutral Citation | 2012 SCCR 70,[2011] HCJAC 111 |
| Docket Number | No 29 |
| Date | 02 November 2011 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Clarke, Lady Clark of Calton, Lord Wheatley
Justiciary - Evidence - Admissibilty - DNA swabs taken from accused after caution and charge - Whether admissible - Criminal Procedure (Scotland) Act 1995 (cap 46), sec 18
Section 18 of the Criminal Procedure (Scotland) Act 1995 (cap 46) governs the procedure for the taking of prints and samples from an accused person in a criminal investigation who has been arrested and is in custody or has been detained.
The respondent had been detained by police. Following caution and charge police obtained a DNA sample from the accused by mouth swab. She was then released. At trial the respondent took a preliminary issue objecting to the admissibility of her DNA sample, given it had been obtained after she had been charged. The sheriff held that the sample was inadmissible. The Crown appealed.
It was argued on behalf of the Crown that while there was a change of a person's status, from suspect to a person charged with an offence, it did not affect the scope of secs 14 and 18 of the 1995 Act. Statutory detention could continue after a person had been charged.
The respondent however argued that once a person was charged with an offence his status changed significantly and he was entitled to the protection of the court. It was not accepted that the right not to self-incriminate oneself, was limited to the obtaining of statements from accused persons.
Held that: (1) the status of a person who had been charged, had always been regarded as quite distinct from the person who had simply been arrested and/or detained (para 14); (2) at that stage the principle against self-incrimination applied with full force and it had been contrary to that principle and illegitimate for police officers to have required a person whom they had charged, to provide a DNA sample by way of a swab, without warrant or having obtained informed consent (para 14); (3) care had been taken by the legislature to cover two classes of persons only, namely lawfully arrested persons or persons detained under sec 14, but not charged (para 15); (4) the significance of the change in status of a person who had been detained to one who had been detained and charged would have involved an important inroad into common law principles as to the rights of accused persons, which the language of the statutory provisions had not provided for (para 15); (5) the sheriff had been correct in reaching the conclusion he did as to the admissibility of the evidence in question (para 15); and appeal refused.
Yvonne Logan Welsh or Cowie was charged on indictment at the instance of the Right Honourable Elish F Angiolini QC, Her Majesty's Advocate, the libel of which set forth a contravention of the Misuse of Drugs Act 1971 (cap 38). At a first diet the respondent took a preliminary issue as to the admissibility of certain evidence. On 13 July 2011, at a continued first diet in the sheriff court at Aberdeen before the sheriff (DJ Cusine) that evidence was ruled inadmissible. The Crown appealed that decision to their Lordships in the High Court of Justiciary.
Cases referred to:
Adair v McGarrySC 1933 JC 72; 1933 SN 50; 1933 SLT 482
Advocate (HM) v Dimmick High Court of Justiciary, Lady Smith, 16 March 2011, unreported
Advocate (HM) v Lukstins [2011] HCJAC 69; 2012 SLT 167; 2012 SCL 19
Beattie v ScottSCUNK 1990 JC 320; 1991 SLT 10; 1990 SCCR 296
Brown v GlenSCUNK 1998 JC 4; 1998 SLT 115; 1997 SCCR 636
Brown v StottUNKSCUNKELRWLRUNK [2001] UKPC D3; 2001 SC (PC) 43; 2001 SLT 59; 2001 SCCR 62; [2003] 1 AC 681; [2001] 2 WLR 817; [2001] 2 All ER 97
Chalmers v HM AdvocateSC 1954 JC 66; 1954 SLT 177
Davidson v HM AdvocateSC 1951 JC 33; 1951 SLT 109
Jalloh v GermanyHRCUNK (2007) 44 EHRR 32; 20 BHRC 575; [2007] Crim LR 717
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
McGovern v HM AdvocateSC 1950 JC 33; 1950 SLT 133
Namyslak v HM AdvocateUNK 1995 SLT 528; 1994 SCCR 140
Wade v RobertsonSC 1948 JC 117; 1948 SLT 491
Textbooks etc. referred to:
Renton, RW, and Brown, HH, Criminal Procedure according to the Law of Scotland (6th Gordon ed, W Green, Edinburgh, 1996), vol 1, paras 7.21, 24.49
Renton, RW, and Brown, HH, Criminal Procedure Legislation (W Green, Edinburgh, 1996), vol 1, para A4.29
Scottish Law Commission, Report on Evidence: Blood Group Tests, DNA Tests and Related Matters (Scot Law Com no 120, 1989), para 2.33
Wigmore, JH, Evidence in Trials at Common Law (Little/Brown, Boston, 1983), vol 8, p 31
The cause called before the High Court of Justiciary, comprising Lord Clarke, Lady Clark of Calton and Lord Wheatley, for a hearing on 7 September 2011.
At advising on 2 November 2011 the opinion of the Court was delivered by Lord Clarke-
Opinion of the Court-
[1] In this appeal, at the instance of the Crown under sec 74 of the Criminal Procedure (Scotland) Act 1995 (cap 46) ('the 1995 Act'), the appellant appeals against a decision of Sheriff Cusine sitting in the sheriff court in Aberdeen on 13 July 2011 whereby he sustained an objection made on behalf of the respondent as to the admissibility of certain evidence. The sheriff granted leave to appeal against that decision. The grounds of objection submitted on behalf of the respondent, and which were raised at the first diet in the case, were that evidence obtained as a result of an evidential DNA sample (in the form of a buccal swab) taken from the respondent, while she was in police custody, was inadmissible due to the fact that the respondent had by that time been charged and that, therefore, the terms of sec 18(6A) of the 1995 Act were no longer operative.
[2] The background to the submissions which were made to the sheriff is helpfully and concisely set out in a joint minute of admissions of the parties furnished to this court. It states as follows:
'1. That acting on intelligence received, officers of Grampian Police obtained, on Wednesday 25 August 2010, search warrants for the property at 30 Provost Fraser Drive ("the said address") which was the domicile of George Cowie (now deceased) and his wife, the Respondent.
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2. That at approximately 1530 hours that day, police officers attended at the said address and executed the search warrant in respect of it.
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3. That in the course of the search a quantity of drugs was recovered including two bags containing respectively 27.40 ("Bag T1") and 10.30 grams of cocaine ("Bag T2"). The two bags, together, constitute Crown label number 1.
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4. That the respondent was found within an upstairs bedroom at the said address. At 15.30 hours she was detained in terms of section 23(2)(a) of the Misuse of Drugs Act ("MDA") 1971.
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5. That the said George Cowie, the respondent, and the five other males found within the said address were all detained at approximately 1550 hours, in terms of section 14 of the Criminal Procedure (Scotland) Act ("CPSA") 1995, the suspected offence being contravention of section 4(3)(b) MDA 1971. They were thereafter conveyed to Queen Street Police Station at Aberdeen.
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6. That the respondent arrived at Queen Street police station at 1703 hours on 25 August 2010, when she was reminded that she was detained under section 14 and that she was not obliged to answer any question other than to give her name and address.
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7. That at 1704 hours the following statement was read to the respondent: "You may now be questioned and searched. Your fingerprints, biological samples and other impressions may be taken. You may be taken elsewhere for these procedures to be completed."
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8. That the respondent was interviewed at Queen Street...
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