Ryan James Maclean V. Procurator Fiscal, Glasgow
| Jurisdiction | Scotland |
| Judge | Lord Hardie,Lord Emslie,Sheriff Principal Brian A Lockhart |
| Neutral Citation | [2012] HCJAC 34 |
| Court | High Court of Justiciary |
| Date | 19 January 2012 |
| Docket Number | XJ1125/11 |
| Published date | 24 February 2012 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Hardie Lord Emslie Sheriff Principal Lockhart | [2012] HCJAC 34 Appeal No: XJ1125/11 OPINION OF THE COURT delivered by LORD HARDIE in BILL OF SUSPENSION for RYAN JAMES MacLEAN Complainer; against PROCURATOR FISCAL, GLASGOW Respondent: _______ |
Complainer: Paterson, Solicitor Advocate; Paterson Bell, Edinburgh
Respondent: Cherry, Q.C., A.D.; Crown Agent
19 January 2012
Introduction
[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.
Proceedings before the sheriff
[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 section 18 of the Criminal Procedure (Scotland) Act 1995 ("the Act"). The respondent's depute conceded before the sheriff that in light of the decision in Cowie v HMA [2011] HCJAC 111 the previous sample had been obtained unlawfully. However, the sheriff has recorded in his report that it was common ground that the decision in Cowie:
"[H]ad done no more than determine that the section 18 powers did not authorise the obtaining of a relevant sample from persons taken into detention under section 14 who while remaining in detention (although not arrested) had been charged; that the admissibility of evidence deriving from the DNA sample previously obtained was still at large for the High Court to decide upon"
Although counsel for the complainer had criticised the Crown for failing to respond to the decision of Lady Smith in Dimmick v HMA (unreported 16 March 2011) the respondent's depute had referred the sheriff to two later decisions by judges of first instance which had taken a contrary position, namely HMA v Lukstins 2012 SLT 167, a decision of Lady Stacey reached on 7 July 2011, and HMA v Murphy and Stuart (unreported 26 July 2011), a decision of Lord Tyre. On 15 September 2011 the Crown had issued fresh instructions to the police with a view to ensuring that there was no dubiety about the legality of samples taken for DNA analysis.
[4] The sheriff considered that the desirability, in advance of the trial, of attaining certainty in regard to the admissibility of any DNA evidence which the Crown intended to lead provided an intelligible explanation of the need for the warrant. Achieving certainty was not only in the public interest but was also in the interests of the complainer. Even if that had not been the case, the sheriff concluded that the public interest outweighed the complainer's interests. Accordingly the sheriff granted the warrant sought.
Submissions on behalf of the complainer
[5] In inviting the court to pass the Bill, Mr Paterson submitted that the swab that had been taken from the complainer, after he had been charged following his detention, had been obtained unlawfully. In that regard he relied upon the decision in Cowie which was binding upon this court. Moreover, he submitted that the sheriff had erred in his approach by failing to recognise that, before he could grant the warrant sought, he had to apply a two-stage test. The first stage required him to be satisfied that there were special circumstances justifying the granting of the warrant, and the second stage involved consideration of whether granting the warrant would disturb the balance between the public interest and the interests of the complainer (Walker v Lees 1995 SCCR 445). In HMA v Edwards & Alexander [2012] HCJAC 9 Lord Turnbull had acknowledged the two-stage approach and had referred to the requirement of there being an explanation as to why it was necessary for the Crown to seek the court's authority for a warrant to take samples from an accused. Moreover, he had opined that the court could only consider whether to exercise its discretion in favour of granting the application, if it accepted that the explanation amounted to special circumstances justifying the application. (para. [34]). Mr Paterson submitted that the actions of the police, in taking the original sample from the complainer, were not due to an administrative error or a mistake of the type desiderated by Lord Turnbull (para. [37]) but were the result of routine conduct based upon systemic failures on the part of the police. In the present case there were no special circumstances justifying the granting of the warrant. Mr Paterson accepted that if he were wrong in that submission, the second question was easier for the court to answer. He did not advance any discrete criticism of the sheriff's conclusion that the granting of the warrant would not disturb the balance between the public interest and the interests of the complainer.
Submissions on behalf of the respondent
[6] Before commencing her submissions the Advocate depute tendered answers to the Bill of Suspension. In the absence of any objection on behalf of the complainer we allowed these to be received. For present purposes the relevant averments are contained in Answers 5 and 8 to the following effect:
"5. Admitted that the Respondent's position before the learned sheriff on 10 November 2011 was that a DNA sample had been taken from the complainer after he had been detained in terms of section 14 of the Criminal Procedure (Scotland) Act 1995 ["the said Act"] and also charged. Admitted that the police had, in taking the said sample, acted in terms of the statutory authority bestowed on them by section 18 of the said Act. Admitted that the Respondent's depute conceded that the taking of such a sample was unlawful, although not necessarily inadmissible. Explained that the time of the Complainer's detention under section 14 was 13.10 hours. The interview of the Complainer commenced at 16.12 hours. At 17.46 hours the Complainer was arrested. At 1800 hours the Complainer was charged with attempted murder. The DNA sample was taken from him at 1855 hours. Admitted that it was argued on behalf of the Respondent that it was in the interests of justice for the warrant sought to be granted. Explained and averred that as at 10 November 2011 no formal report was available, but that a potential DNA match had already been identified, using the sample previously taken from the Complainer, prior to his being committed for trial. The learned sheriff was further advised by the Respondent's depute that the Complainer's DNA could not be eliminated from a profile obtained from a green and white jacket thought to belong to a third individual named Barry Cartwright. ...
8. ... Explained and averred that the sample taken by police on 27 August 2011 was taken after the Complainer had been charged. In light of the court's decision in the case of [Cowie], it is clear that this sample has been irregularly obtained. Prior to that decision the powers of the police under section 18 of the said Act had not, since their introduction in 1993, been generally understood to that effect. Since the decision of Lady Smith in Dimmick v HMA on 16 March 2011, the issue was considered in the High Court again in the cases of Indulis Lukstins v HMA, Fotheringham and Others v HMA and Stuart and Murphy v HMA, all of which decisions adopted an interpretation of section 18 which differed from that adopted in Dimmick ...".
Despite the unequivocal terms of Answer 8, the Advocate depute submitted that on the basis of Cowie it was no more than "arguable" that the sample obtained from the complainer in the present case on 27 August 2011 had been irregularly obtained. The Advocate depute submitted that the ratio of the decision in Cowie was confined to the situation where a DNA sample had been taken from an accused who had been charged while in detention, but not arrested. The circumstances in the present case differed from those in Cowie because of the arrest of the complainer. Separately, she submitted that the decision in Cowie was open to criticism, in so far as the court relied...
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