Walker v Lees
| Jurisdiction | Scotland |
| Judgment Date | 24 March 1995 |
| Docket Number | No 19 |
| Date | 24 March 1995 |
| Court | High Court of Justiciary |
JC
LJ-C Ross, Lords McCluskey, Morison
Procedure—Summary procedure—Warrant to take blood sample—Suspect not charged—Whether warrant be granted.
A motor car had been forced open and a bag containing money and documents stolen from it. The bag was recovered with traces of blood on it. The complainer was seen in another car being driven at high speed in the street where the first car was parked. That car was recovered by the police, who searched it and found a screwdriver with traces of blood on it. The complainer voluntarily attended the police station where it was noted that he had a recent cut on his finger. He was neither arrested nor charged but the Crown sought a warrant to convey him to a police station so that a blood sample could be obtained from him. The sheriff granted the warrant. The complainer appealed.
Held (1) that the fact that the Crown had undertaken to take no proceedings against the complainer if the comparison of the blood did not implicate him was neither by itself nor with other facts sufficient to constitute the special circumstances required for a warrant to be granted; (2) that although the fact that the taking of blood would not in itself involve any great invasion of the complainer's person and was a factor to be taken into account when balancing the public interest against the interest of the complainer, it was not the only factor; (3) that what was sought was a warrant to detain the complainer and convey him to a police station in order for a blood sample to be taken, which involved some degree of loss of liberty on the part of the complainer, which had not been taken into account by the sheriff in exercising his discretion; so that (4) the matter was at large for the appeal court; (5) that as a blood sample was necessary for a complete analysis and comparison of the bloodstains, there were special circumstances to justify granting the warrant; but (6) that, as the complainer would be deprived of his liberty for a time, the bill would meantime be refused for modification of the warrant to make it one for a police casualty surgeon to take a blood sample from the complainer at the police station at an agreed time and place; and bill continued.
Stuart David Walker presented a bill of suspension to the High Court of Justiciary, the terms of which appear adequately from the opinion of the court.
Cases referred to:
Archibald v Lees 1995 SLT 231
Brodie v NormandUNK 1994 SCCR 924
Hay v HM AdvocateSC 1968 JC 40
Hughes v NormandUNK 1993 SCCR 69
McPhee v HM Advocate High Court 13 May 1994; unreported
Morris v MacNeill 1991 SLT 607
Smith v CardleUNK 1993 SCCR 609
The bill called before the High Court of Justiciary, comprising the Lord Justice-Clerk (Ross), Lord McCluskey and Lord Morison for a hearing on 14 March 1995. Eo die, their Lordships made avizandum.
At advising, on 24 March 1995, the opinion of the court was delivered by the Lord Justice-Clerk (Ross).
Opinion Of The Court—In this bill the complainer is seeking to suspend a...
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