Maclean v Dunn (Procurator Fiscal)
| Jurisdiction | Scotland |
| Judgment Date | 19 January 2012 |
| Neutral Citation | 2012 SCCR 369,[2012] HCJAC 34 |
| Docket Number | No 34 |
| Date | 19 January 2012 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Hardie, Lord Emslie, Sheriff Principal Lockhart
Justiciary - Criminal procedure - Accused appearing on petition - DNA samples obtained unlawfully - Common law warrant sought at sheriff court to obtain further DNA samples - Common law warrant granted - Bill of suspension lodged to suspend warrant - Whether sheriff correct to grant warrant
The complainer had been charged with attempted murder. After caution and charge, a DNA sample had been obtained from him by means of a mouth swab. Following the decision of the court in HM Advocate v Cowie, the Crown sought a common law warrant in the sheriff court for a further DNA sample to be taken. The warrant was granted. The appellant thereafter lodged a bill of suspension, seeking to suspend the warrant granted by the sheriff to allow a fresh DNA sample, by means of a mouth swab, to be taken from the complainer.
The complainer relied on HM Advocate v Cowie and HM Advocate v Edwards and Alexander as justification for suspending the warrant. He argued that the sheriff had erred by failing to recognise the two stage test that had to be applied before granting the warrant, first, to satisfy himself that there were special circumstances justifying the granting of the warrant and, secondly, to consider whether granting the warrant sought would disturb the balance between the public interest and the complainer's interest.
Held that: (1) the intrusion that would have occurred if the warrant had been granted to take a mouth swab was minimal (para 19); (2) the need for a fresh sample had been occasioned by the uncertainty surrounding the admissibility of the evidence relating to the complainer's first DNA sample (para 19); (3) it had been desirable that such uncertainty be resolved at the earliest opportunity (para 19); (4) the earlier sample had been taken in conformity to a practice that had existed for many years and the police and the legal profession had considered the practice to be lawful (para 19); (5) it had not been appropriate that the investigation and suppression of crime, which had been undertaken in good faith should have been frustrated because of such uncertainty (para 19); (6) although the practice had altered since the hearing in HM Advocate v Cowie, it would have been contrary to the public interest to permit cases investigated under the previous procedures to be frustrated, simply because of subsequent doubts about the legality of such procedures (para 19); (7) it would not have been appropriate, that a decision in each case should have been left to the trial court to determine as one of admissibility (para 19); (8) the public interest and the interests of the administration of justice, as well as the interests of the accused, would have been best served in each case by early resolution of the issue (para 19); (9) it would have been desirable, in advance of a trial, to attain certainty in regard to the admissibility of any DNA evidence intended to have been led (para 19); and bill of suspension refused.
Observed that: (1) had it been necessary to do so for the purposes of this appeal, the court would have felt compelled to question the soundness of the decision in HM Advocate v Cowie in several respects (para 20); (2) the taking of fingerprints, bodily samples or DNA swabs from a detained or arrested person would not have struck the court as raising any issue of self-incrimination (para 20(i)); (3) Parliament's intention in enacting what is now sec 18 of the Criminal Procedure (Scotland) Act 1995 (cap 46) had been plainly to increase routine police powers in this area to a uniform level covering both detained and arrested suspects (para 20(ii)); (4) there would have been no obvious practical reason to construe sec 18 in such a way as to have created technical distinctions and boundaries in this narrow area (para 20(iii)); (5) the court would have been inclined to prefer the considered views of Lady Stacey in HM Advocate v Fotheringham and ors and HM Advocate v Lukstins, and of Lord Tyre in HM Advocate v Murphy and anr, to the obiter remarks of Lady Smith in HM Advocate v Dimmick (para 20(iv)).
HM Advocate v CowieSC 2012 JC 203 commented upon.
Ryan James MacLean appeared on petition in the sheriffdom of Glasgow and Strathkelvin at Glasgow, on 29 August 2011, charged with an offence of attempted murder. On that date he was committed for further examination and remanded in custody. On 7 September 2011 he was fully committed for trial and again remanded in custody. Following his full committal, the Crown presented a petition seeking authority to obtain a DNA sample from him, for forensic examination in respect of the alleged crime. At a hearing, on 10 November 2011, the petition was granted by the sheriff. A bill of suspension was thereafter lodged seeking to suspend the warrant.
Cases referred to:
Adair v McGarrySC 1933 JC 72; 1933 SN 50; 1933 SLT 482
Advocate (HM) v Apolojohanaangels High Court of Justiciary, Lord Pentland, 4 November 2011, unreported
Advocate (HM) v CowieSCUNK [2011] HCJAC 111; 2012 JC 203; 2012 SLT 709; 2012 SCCR 70; 2012 SCL 219
Advocate (HM) v CrawfordUNK 2006 SLT 456; 2005 SCCR 836
Advocate (HM) v Dimmick High Court of Justiciary, Lady Smith, 16 March 2011, unreported
Advocate (HM) v Edwards and AlexanderSC [2012] HCJAC 9; 2012 JC 266
Advocate (HM) v Fotheringham and ors [2011] HCJAC 68; 2012 SCL 534
Advocate (HM) v Kadiri High Court of Justiciary, Lord Turnbull, 6 December 2011, unreported
Advocate (HM) v Lukstins [2011] HCJAC 69; 2012 SLT 167; 2012 SCL 19
Advocate (HM) v Milford 1973 SLT 12
Advocate (HM) v Murphy and anr High Court of Justiciary, Lord Tyre, 27 July 2011, unreported
Advocate (HM) v PUNKWLR [2011] UKSC 44; 2012 SC (UKSC) 108; 2011 SLT 1097; 2011 SCCR 712; 2011 SCL 1035; [2011] 1 WLR 2497
Advocate (HM) v Paterson High Court of Justiciary, Lord Uist, 16 November 2011, unreported
Advocate (HM) v RudlingUNK 2010 SCCR 155
Begley v NormandUNK 1992 SCCR 230
Frame v HoustonSCUNK 1991 JC 115; 1992 SLT 205; 1991 SCCR 436
Hay v HM AdvocateSC 1968 JC 40; 1968 SLT 334
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
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
Saunders v UKHRCUNKUNK (1997) 23 EHRR 313; [1997] BCC 872; [1998] 1 BCLC 362; 2 BHRC 358
Stone v HM AdvocateUNK [2008] HCJAC 60; 2009 SCCR 71
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:
Renton, RW, and Brown, HH, Criminal Procedure According to the Law of Scotland (6th Gordon ed, W Green, Edinburgh, 1996), vol 1, para 7.21
Scottish Law Commission, Report on Evidence: Blood Group Tests, DNA Tests and Related Matters (Scot Law Com no 120, 1989), paras 2.18, 2.32
The cause called before the High Court of Justiciary, comprising Lord Hardie, Lord Emslie and Sheriff Principal Lockhart, on 19 January 2012.
At advising, on 19 January 2012, the opinion of the Court was delivered by Lord Hardie-
Opinion of the Court-
[1] In this bill the complainer is seeking to suspend a warrant granted by the sheriff at Glasgow on 10 November 2011 following upon a petition at the instance of the respondent dated 7 November 2011 to allow police officers of Strathclyde Police to obtain a DNA sample by means of a mouth swab taken from the complainer.
[2] The petition presented to the sheriff narrated that on 29 August 2011 the complainer appeared at Glasgow Sheriff Court on a petition containing a charge of attempted murder. On that date he was committed for further examination and remanded in custody. On 7 September 2011, the complainer again appeared at Glasgow Sheriff Court and was fully committed for trial and remanded in custody. On the same date, following the complainer's full committal, the respondent presented the petition seeking authority to obtain a DNA sample from the complainer for forensic examination in respect of the alleged crime. On 26 August 2011 a sample of DNA had been obtained from the complainer, following the caution and charge of the complainer, and a DNA profile matching that of the complainer had been recovered from blood on a mobile telephone found by a witness at the locus of the attack. The Crown had concerns that the sample might be considered inadmissible evidence. In these circumstances the respondent maintained that it was in the interest of justice that a further sample of DNA should be taken from the complainer so that the DNA profile of the complainer could be proved by the Crown.
[3] Intimation of the petition for the warrant was made to the complainer and a hearing was fixed for 10 November 2011. At that hearing the complainer was represented by counsel and the respondent was represented by one of his deputes. The sheriff was advised that prior to 7 September 2011 the respondent had received an email from a forensic scientist who had analysed the previous DNA sample taken from the complainer. The result of that analysis was that there was a match between the profile of the DNA sample from the complainer and the DNA profile recovered from blood on the mobile telephone referred to above. It was common ground before the sheriff that the DNA sample obtained from the complainer had been obtained after he had been charged and that the police officers taking the sample had purported to rely upon sec 18 of the Criminal Procedure (Scotland) Act 1995 (cap 46) ('the Act'). The respondent's depute conceded before the sheriff that in light of the decision in HM Advocate v Cowie the previous sample had been obtained...
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