Indulis Lukstins V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Doherty,Lord Carloway,Lord Brodie,Lady Paton,Lord Menzies |
| Judgment Date | 14 November 2012 |
| Neutral Citation | [2012] HCJAC 146 |
| Date | 14 November 2012 |
| Docket Number | XC674/11 |
| Court | High Court of Justiciary |
| Published date | 16 November 2012,05 December 2012 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lady Paton Lord Carloway Lord Menzies Lord Brodie Lord Doherty | [2012] HCJAC 146 Appeal No: XC674/11 OPINION OF LADY PATON in NOTE OF APPEAL AGAINST CONVICTION by INDULIS LUKSTINS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: P Wheatley QC (solicitor advocate), C Tait, solicitor advocate; Capital Defence (for Inverness Legal Services)
Respondent: Shand QC, AD; Crown Agent
14 November 2012
[1] I agree with the Opinions of Lords Carloway and Doherty. It follows that HM Advocate v Cowie 2012 SCCR 70 is overruled. The appeal should be refused.
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lady Paton Lord Carloway Lord Menzies Lord Brodie Lord Doherty | [2012] HCJAC 146 Appeal No: XC674/11 OPINION OF LORD CARLOWAY in NOTE OF APPEAL AGAINST CONVICTION by INDULIS LUKSTINS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: P Wheatley QC (solicitor advocate), C Tait, solicitor advocate; Capital Defence (for Inverness Legal Services)
Respondent: Shand QC, AD; Crown Agent
14 November 2012
General
[2] The appellant was indicted to a Preliminary Hearing at Glasgow on 19 May 2011 on charges libelling, inter alia: (1) the rape (by oral penetration) of IV on 15 January 2011 in a lay-by on the A9 Perth to Inverness Road near Ralia, contrary to section 1 of the Sexual Offences (Scotland) Act 2009; and (2) the theft of her computer and related items on the same date at the Inverness Business and Retail Park.
[3] The appellant tendered a preliminary issue objecting to evidence of a DNA sample taken from him by buccal swab on 17 January 2011. The issue was argued before the High Court at Inverness on 15 June 2011. On 16 June 2011, the judge repelled the objection (HM Advocate v Lukstins 2011 SLT 167). The appellant went to trial. He was found guilty at Dundee High Court on 26 September 2011 and, on 21 October 2011, sentenced to seven years imprisonment.
Evidence
[4] Both the complainer and the appellant are Latvian nationals. Using the internet, the appellant, who was aged 49, managed to persuade the complainer, who was aged 21, that she had obtained employment with a Russian family in Glasgow. The complainer therefore bought a flight to Prestwick, where she was met by the appellant. When they got into his car, the appellant programmed Inverness into his SatNav and told the complainer that the family were staying there. After sundry communings, the appellant stopped in a lay-by. It was by then dark and the complainer had become afraid of the appellant, who had been acting strangely. According to the complainer, the appellant then produced a knife and raped her by penetrating her mouth with his penis.
[5] The appellant drove the appellant to the Tesco car park in Inverness, where he abandoned her, taking her lap-top computer, which she had been using for entertainment on the journey. The complainer sought assistance from security guards at Tesco. She was distressed. The police were called. The police instigated text contact between the appellant and the complainer, as a result of which he returned to the car park, where he was detained under section 14 of the Criminal Procedure (Scotland) Act 1995 on suspicion of rape. This was shortly before 5 pm on 16 January 2011. A knife was found in a door compartment of the appellant's car. The complainer's computer was recovered from a hiding place in the flat where the appellant lived.
[6] The appellant was interviewed in the early hours of the morning. His detention ended just before he was arrested shortly before 5 pm on 17 January. He was not charged until some time after 9 pm. Shortly thereafter, a buccal swab (for DNA comparison) was taken from the appellant's mouth. In taking the swab, the police purported to exercise the power conferred by section 18(6A) of the 1995 Act (infra). There was no warrant for the taking of the sample; nor was the appellant's consent sought.
[7] Mouth and facial swabs were taken from the complainer. These contained a male seminal component, which was analysed and found to match the DNA profile obtained from the buccal swab taken from the appellant.
[8] At an early stage in the preliminary procedure, there had been an agreement between Crown and defence that evidence of the appellant's interview whilst in detention would not be adduced because of perceived inadequacies in the interpretation service provided. However, although it does not appear from the trial judge's report or in her charge to the jury, it was not disputed that, in cross-examination of a police officer on behalf of the appellant during the Crown case, evidence was elicited that, in answer to caution and charge, the appellant had said: "I understand but I do not agree that it is sexual assault. She agreed". That evidence was also the subject of a joint minute lodged during the defence case. The appellant did not give evidence but the answer to caution and charge was relied upon in support of the defence of consent that had been lodged early in the proceedings and which had been read to the jury at the outset of the trial.
Ground of Appeal and Submission
(a) APPELLANT
[9] It was contended for the appellant that the taking of the swab from the appellant's mouth had been unlawful. The contention was that, properly construed, section 18 (6A) of the 1995 Act (infra) did not authorise the taking of such a swab from a person after that person had been charged with an offence by the police. In this respect, the appeal founds essentially upon the decision and reasoning of the court in HM Advocate v Cowie 2012 SCCR 70 (disapproving Lukstins v HM Advocate (supra) and approving HM Advocate v Dimmick, High Court, 16 March 2011, unreported) to the effect that, whereas section 18(6A) applied to a person who has been detained or arrested, once that person had been charged, his status changed and he could no longer be required to provide a buccal swab because, on an analogy with questioning after charge, this was contrary to the right to silence and the privilege against self-incrimination. After charge, the police were functi so far as questioning was concerned (Wade v Robertson 1948 JC 117, Lord Justice-Clerk (Thomson) at 120) and the same principle should apply to the recovery of samples.
[10] Accordingly, the evidence of the appellant's DNA profile ought to have been excluded. In that event, there was insufficient evidence with which to convict the appellant and the appeal ought therefore to be allowed. Although in the original Note of Appeal it was said that the absence of the DNA comparison evidence resulted in an insufficiency regarding proof of the act of rape, this was amended to a contention that there was no corroboration of the identity of the perpetrator.
[11] It was recognised by the appellant that the earlier authorities regarded arrest and charge as contemporaneous, even if some later decisions had suggested that there could be a gap between arrest and charge (eg Johnston v HM Advocate 1993 JC 187). After charge, the legal landscape changed and a person came to be under the protection of the court. After this watershed, everything required to be carried out under the authority of the court.
[12] The appellant sought to distinguish the reasoning of the court in McLean v Dunn 2012 SCCR 369 on the basis that it was concerned with the granting of a warrant by a sheriff (because of concerns regarding the application of Cowie) after arrest and charge. At common law, the court could always grant such a warrant. It was accepted that the police were entitled, at common law, to take non-invasive samples, such as fingerprints, nail scrapings and other externally obtained matters, from persons who had been arrested (Renton & Brown: Criminal Procedure (6th ed) para 7-21) and that such persons may have been charged. However, a warrant was required for any internal search or for any search prior to arrest (Hay v HM Advocate 1968 JC 40).
(b) CROWN
[13] In a detailed written case and argument, supplemented in oral submission, the Crown contended that Cowie had been wrongly decided. As background, it was submitted that, at common law, it was arrest and not charge which altered the status of the suspect. It was at that point that the suspect gained certain rights, such as that not to be asked questions which might involve the answers being used in evidence, but lost other rights, such as that of liberty and not to be searched or fingerprinted (Thomson Committee: Criminal Procedure in Scotland (2nd report, 1975, Cmnd 6218) para 3.08).
[14] The Thomson Committee had identified the "difficulty" which arose as a result of the common law position that, because arrest had to be accompanied by a charge, the police could not hold a person in custody until they had enough evidence to charge him; yet once charged he could not be questioned (see the Minister of State at the Second Reading of the Criminal Justice Bill in 1980; HL Deb 15 January 1980 vol 404, cc 13-8415). This was why sub-section 2(5) of the Criminal Justice (Scotland) Act 1980 had created the new status of "detention" and allowed the police to use the same powers of search as they already had at common law after arrest (and charge) and, in addition, specifically permitted (s 2(5)(c)) fingerprinting and similar sample taking.
[15] In 1989, the Scottish Law Commission had recommended (Report on Evidence: Blood Group Tests, DNA Tests and Related Matters, Scot Law Com Report No. 120, 1989, para 2.32) that sub-section 2(5)(c) be extended to apply to arrested, as well as detained, persons so as to create uniformity. The Commission did not consider that this amounted to an extension of police powers (ibid para 2.10). The common law allowed the fingerprinting of persons who had been arrested and charged (Adair v McGarry 1933 JC 72; Namyslak v HM Advocate 1995 SLT 528 at 529-530).
[16] As enacted, sub-section 18(2) of the 1995 Act...
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