Lees v Weston
| Jurisdiction | Scotland |
| Judgment Date | 02 February 1989 |
| Docket Number | No. 8. |
| Date | 02 February 1989 |
| Court | High Court of Justiciary |
JC
L. J.-C. Ross, Lords Dunpark, Murray.
Procedure—Summary procedure—Warrant—Fingerprints—Warrant to take accused's fingerprints after full committal—Whether warrant be granted—Misuse of drugs—Police error in not finger printing beforehand—Circumstances in which warrant granted.
An accused person was committed in custody on a number of contraventions of the Misuse of Drugs Act 1971. He had been apprehended on 5th December 1988 and appeared on petition at Paisley Sheriff Court on 6th December. The accused was fully committed on 13th December 1988 but on 2nd February 1989 the police realised for the first time that they had omitted to take the finger impressions of the accused in accordance with normal police procedures following upon his apprehension on 5th December. The circumstances of omission to take the finger impressions of the accused at that time were that he had been arrested in Paisley Sheriff Court district but taken to a Glasgow police office overnight and then transferred to a place at Paisley police office pending his appearance at court at Paisley. The police in Glasgow had not fingerprinted him because they expected this to be done in Paisley and Paisley police did not fingerprint him because they thought this had been done by the Glasgow police. The police informed the Crown of this omission and the procurator fiscal thereafter applied to the sheriff for warrant to fingerprint the accused. The sheriff refused the warrant and was of the view that the court should be extremely slow to cure by judicial dispensation the errors of public servants in the investigation of crime and that what the Crown was seeking to do now was to improve the prima facie case that they had had at the time of full committal by trying to get round a police blunder. The procurator fiscal thereafter appealed to the High Court of Justiciary by way of bill of advocation.
Held (1) that although it was no doubt competent to grant warrant to take finger impressions from an accused after he had been fully committed it was clear that such a warrant would only be granted where the circumstances were special; (2) that, when considering an application of this kind, the sheriff had to have regard to the whole circumstances, and he had to weigh the public interest in the investigation and suppression of crime against the interests of an accused who had been fully committed; (3) that in this case the sheriff had purported to have regard to the balancing exercise which would have to be carried out, but the approach which he had adopted had been seriously flawed, for it was plain that the sheriff's view was that an error had taken place which could not be excused, and that this was a wholly unreasonable view for the sheriff to have entertained for the mistake which had taken place had been entirely understandable; (4) that the sheriff had given insufficient weight to the relatively minor invasion of the respondent's bodily integrity involved in taking fingerprints as against the seriousness of the charges libelled against him; and appeal allowed.
Robert Ferguson Lees, procurator fiscal, Paisley brought a bill of advocation against a decision of the sheriff (C. N. Stoddart) of North Strathclyde at Paisley refusing a petition craving the court to grant warrant to obtain fingerprint impressions of David Weston, an accused person who had been fully committed for trial on 13th December 1988, in respect of alleged offences under the Misuse of Drugs Act 1971.
The bill of advocation set forth, inter alia: "That the complainer is under the necessity of complaining to your Lordships against the decision of Sheriff Charles N. Stoddart, sheriff of North Strathclyde at Paisley, dated the seventh day of February 1989, whereby the said Sheriff Stoddart, upon a petition at the instance of the complainer as procurator fiscal for Paisley, for the public interest, craving a warrant to take the finger impressions of the respondent, refused said petition, and that erroneously and contrary to law as will appear to your Lordships from the annexed statement of facts and plea-in-law."
The sheriff's note was in the following terms: "This is a petition by the procurator fiscal at Paisley wherein he seeks warrant to James Henderson, Detective Constable, Strathclyde Police, Glasgow to attend at Barlinnie Prison, Glasgow and obtain the fingerprint impressions of the respondent. It narrates that the respondent appeared at Paisley Sheriff Court on 6th December 1988 on a petition containing charges of contraventions of the Misuse of Drugs Act 1971. On that date he was committed for further examination. The respondent again appeared at Paisley Sheriff Court on 13th December 1988 when he was fully committed and remanded in custody. It is averred that the fingerprint impressions of the respondent were found on a production in the case but that due to an administrative error the respondent was not fingerprinted before being fully committed at Paisley Sheriff Court. It is lastly averred that it appears to the petitioner that it is necessary in the interests of justice and for proof of said crimes that the respondent be fingerprinted. The petition for this warrant was presented to me by the sheriff clerk in chambers on 2nd February 1989. Initially there was no appearance for either the petitioner or the respondent but later that morning the procurator fiscal depute, who had signed the petition, sought to be heard before me. At the hearing I ascertained from him that the petition had not been served on the accused or his known solicitor and I therefore ordered immediate service on both. I thereafter continued the matter to 7th February 1989 so that full submissions might be made by both sides. On 7th February 1989 the procurator fiscal depute again appeared for the petitioner and the respondent was represented by his agent. The procurator fiscal depute renewed his motion for a warrant in the terms craved. This was opposed by the agent. Having heard parties on the facts and on the law I refused to grant the warrant craved. The factual background to the petition was narrated by the procurator fiscal depute. He explained that the respondent had been arrested by the police on 5th December 1988 as a result of a search of a house at 83 Beechwood Avenue, Clarkston, Glasgow. The respondent was taken to Govan police office and held overnight there. Next day he was transferred to Mill Street police office in Paisley and charged with various contraventions of the Misuse of Drugs Act 1971. He appeared on petition at Paisley Sheriff Court later that day on a total of seven charges. Read short, these were:—(1) obstructing the police in execution of a drugs warrant, contrary to sec. 23 (4)(a) of the 1971 Act; (2) being concerned in the supply of cocaine (a class A drug), contrary to sec. 4 (3) (a) of the 1971 Act; (3) unlawful possession of cocaine with intent to supply it to another, contrary to sec. 5 (3) of the 1971 Act; (4) unlawful possession of cocaine, contrary to sec. 5 (2) of the 1971 Act; (5) being concerned in the supply of cannabis resin (a class B drug), contrary to sec. 4 (3)(b) of the 1971 Act; (6) unlawful possession of cannabis resin with intent to supply it to another, contrary to sec. 5 (3) of the 1971 Act; and (7) unlawful possession of cannabis resin, contrary to sec. 5 (2) of the 1971 Act. On 6th December 1988 the respondent made no plea or declaration and was committed to the prison of Barlinnie, Glasgow for further examination. He re-appeared at...
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