McGlennan v Kelly
| Jurisdiction | Scotland |
| Judgment Date | 09 June 1989 |
| Docket Number | No. 22. |
| Date | 09 June 1989 |
| Court | High Court of Justiciary |
JC
Lords Dunpark, Mayfield, Sutherland.
Procedure—Summary procedure—Warrant—Warrant to take sample of pubic hair—Warrant sought 21 months after earlier sample provided by accused and shortly before service of indictment—Whether sheriff entitled to refuse warrant.
The respondent appeared on petition in January 1989 charged withinter alia rape and assault, allegedly committed in July 1987. In the course of investigation samples of pubic hair were taken from the respondent, with his consent, in July 1987. The case was reported to the procurator fiscal in March 1988 and by him to the Crown Office in June 1988. The results of scientific analysis of the hair samples, which were indeterminate, were reported to the Crown Office in December 1988. In May 1989 the procurator fiscal petitioned the sheriff for a warrant to take further samples of pubic hair from the respondent. The sheriff refused to grant the warrant and the procurator fiscal brought a bill of advocation, complaining that the sheriff had failed properly to balance the interests of the respondent and those of the public.
Held (1) that the grant or refusal of a warrant of this nature was ultimately a matter for the discretion of the sheriff and that, unless it could be shown that he had failed to carry out a proper balancing exercise in the public interest and in the interest of the respondent, there was no wrong exercise of the discretion; and (2) that the Crown had failed to show that the sheriff had so misdirected himself as to vitiate his decision to refuse the warrant; and billrefused.
John Mcglennan, procurator fiscal, Kilmarnock, presented a bill of advocation to the High Court of Justiciary, seeking recall of a decision of the sheriff (Russell) in the sheriffdom of North Strathclyde at Kilmarnock refusing the grant of a warrant to take from Brian Kelly certain samples. Brian Kelly was called in the bill as respondent.
The bill of advocation contained the following statement of facts: "(1) The respondent appeared on petition at Kilmarnock Sheriff Court on 24th January 1989 charged that, on 15th July 1987, he broke into the house at [address specified], occupied by J.M., and there (1) raped and (2) assaulted and robbed said J.M. He made no plea nor declaration and was committed for further examination, and released to bail. He has now been indicted on the said charges for trial in the High Court at Glasgow in the sitting commencing 26th June 1989. (2) On 15th July 1987 in the course of a police investigation of these alleged crimes, a pubic hair was found on a pillow case from the bed on which the alleged rape is said to have been committed. Comparison of said hair with samples of pubic hair provided by said J.M. has established that it could not have come from her. Similar comparison with samples of pubic hair provided by the respondent on 15th July 1987 has failed to establish with certainty whether or not it could have come from him. The reasons for this uncertainty are the occasional wide variations which may be found in the characteristic features of pubic hairs coming from the same individual, and that the samples provided by the respondent were not of...
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