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Cite as: [2012] ScotHC HCJAC_34

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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 upon an analogy with cases involving the protection of an accused against self incrimination. Section 18 of the Act was not about self incrimination (Lees v Weston 1989 JC 35 at page 41; HMA v P 2011 SLT 1097 at paragraph [10]; Jalloh v Germany (2007) 44 EHRR 32).


[7] In Edwards & Alexander Lord Turnbull had erred in his approach, it was submitted, by treating the need for special circumstances to be established as a first hurdle for the Crown in such applications before any consideration could be given to balancing the public interest against the interests of the accused. Although Hay v HMA 1968 JC 40 was a case in which a warrant to take dental impressions from the accused was sought at the stage of investigation prior to the apprehension of the accused, subsequent authorities clearly indicated that the court had to adopt the same approach where a warrant was sought at a later stage in proceedings. (HMA v Milford 1973 SLT 12; Wilson v Milne 1975 SLT (Notes) 26; Lees v Weston (op. cit.); McGlennan v Kelly 1989 SCCR 352; Frame v Houston 1991 SCCR 436; Morris v Macneill 1991 SCCR 722; McMurtrie v Annan 1994 SCCR 692). The Advocate depute submitted that these cases established that the correct approach for the court was to look at the whole matter in the round and to balance the interests of the accused against the public interest. Lord Turnbull had been in error by applying a two-stage approach which resulted in the automatic refusal of the warrant, if the Crown failed to satisfy the court that there were special circumstances justifying the application. In some of the cases mentioned above, the court had referred to the special circumstances justifying the application for the warrant, whereas in others the court had merely referred to the balancing exercise to be undertaken by the court determining the application for such a warrant. In any event, even if a two-stage approach was the correct one, a consideration of the existence or otherwise of special circumstances should include the court taking into account the public interest as well as the interests of the accused.


[8] Lord Turnbull had also been in error in considering that routine conduct on the part of the police could never amount to special circumstances. White v Ruxton 1997 SCCR 771 was a case where the original fingerprints had been destroyed as a result of the application of a general policy and did not involve a unique error. From his opinion, it is apparent that Lord Turnbull was not provided with any information as to how the police practice of exercising their powers under section 18 of the Act had developed. Nor was he addressed upon a number of relevant issues including the legislative intent of section 18, what legal advice had been sought from Crown counsel, the guidelines issued to police officers by the Crown or what training had been given to police officers concerning the exercise of their powers under section 18.


[9] The genesis of section 18 is explained in Cowie (paras. [4] and [5]). Its introduction followed the Scottish Law Commission's "Report on Evidence: Blood Group Tests, DNA Tests and Related Matters" (SLC No 120 published in October 1989). In Adair v McGarry 1933 JC 72 it was recognised that the power of the police to take fingerprints from an accused existed even after the accused had been charged. The intention of the report by the Scottish Law Commission was that the police should have the same powers in relation to DNA samples as they did for the taking of fingerprints. Section 18 gave effect to that intention and there was nothing in section 18 precluding the taking of a DNA sample after an accused had been charged with an offence. There was, thus, a colourable argument that the power under section 18 could be exercised after a suspect had been charged. The DNA Standard Operating Procedures issued by Strathclyde Police in 2009 provided guidelines to officers within that police force and indicated that the legislation authorised the taking of a DNA sample from any person who had been arrested or detained. The Crown had obtained evidence that that power was almost always exercised after a suspect had been charged. There had been no challenge to that practice prior to the case of Dimmick. Lady Smith in that case was concerned with two issues, namely, the legality of the detention of the accused and the legality of the DNA sample taken from her after she had been charged. The Minute of Proceedings quotes the opinion of
Lady Smith from which it is clear that her observations about the legality of the DNA sample were obiter as she had already decided that the detention was unlawful and, therefore that the forensic analysis of the DNA sample taken following that unlawful detention was inadmissible. Nevertheless, Crown counsel's opinion was sought following the decision of Lady Smith, and the advice received was to the effect that the decision in relation to the timing of the taking of the DNA sample was obiter; that there had been only a limited citation of authority; and that the decision was considered to be unsound in any event. Crown counsel further instructed that if the matter arose again and resulted in a substantive adverse decision for the Crown, the matter should be appealed and fully argued. The issue arose on three subsequent occasions. In HMA v Fotheringham and Others 2011 HCJAC 68 Lady Stacey had been favoured with a full argument and concluded that section 18 of the Act applied to persons who had been arrested and charged as well as to those arrested and those detained. In Lukstins (op. cit.), after a full citation of authority, Lady Stacey reached an identical view and observed that in reaching a different conclusion from Lady Smith, she was conscious that she "may have been favoured with more detailed argument and more copious citation of authority than [Lady Smith] was." In particular Lady Stacey noted that in Dimmick the only case to which the court had been referred was Rudling v HMA. In Murphy & Stuart (op. cit.) Lord Tyre reached a similar conclusion to that of Lady Stacey. Accordingly, the Crown considered that the opinion of Crown counsel had been vindicated and that no action was required to alter police procedures. However, following the hearing in Cowie, but prior to the decision of the court, the Crown had decided to review the matter in light of observations from the bench and fresh instructions were issued to police forces on 15 September 2011.


[10] We were advised that, subsequent to the decision in Cowie, the issue of granting a warrant to take a DNA sample had arisen in a number of cases regulated by the police practice which prevailed prior to
15 September 2011. On 4 November 2011 in HMA v Apolojohanaangels Lord Pentland granted a warrant for the taking of such a sample. In doing so he observed that an accused should not obtain a "windfall benefit" as a result of the decision in Cowie and that the refusal of such a warrant was neither in the interests of justice nor in the public interest. On 16 November 2011 in HMA v Paterson Lord Uist also granted such a warrant, observing that the original sample had been taken in good faith at a time when it was not known that there was any concern about the practice. Such concern had only arisen following the decision in Cowie. On 6 December 2011 in HMA v Kazeem Kadiri Lord Turnbull granted an unopposed motion for such a warrant. In doing so, he stated that he had been influenced by the manner in which the police had been dealing with such cases prior to Cowie. His subsequent decision in Edwards & Alexander was clearly out of step with these other cases, and could in any event be distinguished from the present case because the application there came very late and was made after an earlier trial had been deserted.


[11] In summary the Advocate depute submitted that the sheriff had adopted the correct approach and he could not be criticised for the manner in which he had exercised his discretion. In contrast, the passing of the Bill would give the accused an unmerited windfall benefit. The Crown was merely seeking a remedy to deal with a technicality that had arisen as a result of the decision in Cowie. It was not in the interests of justice that the accused should be acquitted on such a technicality (HMA v Crawford 2005 SCCR 836). The accused would not suffer prejudice as a result of the execution of the warrant.

Discussion


[12] The solicitor advocate for the complainer relied upon the decisions in Cowie and Edwards & Alexander to justify the remedy sought and it was apparent, although not expressly conceded by Mr Paterson, that if these cases had no application in the present case, or had been wrongly decided, the complainer could not succeed. Obviously, if Cowie was thought to constitute an authoritative determination of the issues in this case, and if we were inclined to doubt its soundness, it would be necessary for us to remit the present appeal for decision by a fuller bench. The same restriction does not, of course, apply to the decision of Lord Turnbull in Edwards & Alexander.


[13] The first issue for our determination is whether, by reason of the decision in Cowie, the sheriff was bound to refuse to grant the warrant sought. The answer to that question involves considering two questions. The primary question is whether the decision in that case had any effect upon the settled law concerning the approach to be taken by the court in determining an application of this nature. Cowie was not concerned with such an application; rather it was an appeal against a decision of a sheriff concerning the admissibility of certain evidence relating to a DNA sample that had been taken from the accused when she was detained. We note that the court has recorded that the Advocate depute confined his submissions to the proper construction of section 18 of the Act. In particular he did not argue that, following the case of Stone v HMA 2009 SCCR 71 which applied Lawrie v Muir 1950 JC 19, the evidence relating to the sample should be admitted, even if it had been obtained unlawfully. It was undoubtedly appropriate for the sheriff to consider the decision in Cowie but that decision did not in our view alter the approach that he was bound to take - and did take - in the determination of the application before him. The effect of the decision in Cowie did not in other words preclude the sheriff from granting the present application in the exercise of his discretion. As was accepted by both parties before the sheriff, Cowie "had 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" (para [3] above). Moreover, as noted above (para [10]), Lords Pentland, Uist and Turnbull each subsequently granted a warrant to take a fresh sample from an accused where doubts had arisen about the legality of the first sample as a result of the decision in Cowie. None of them felt constrained by that decision from determining such an application by balancing the public interest against the interests of the accused. We respectfully agree that they were correct in that regard.


[14] The secondary question is whether Cowie can be distinguished from this case, even if it had had the effect of precluding the grant of the application. The answer to that question, which does not arise in light of our answer to the primary question, requires us to consider the particular circumstances of this case to determine whether they differ significantly from those in Cowie, particularly as the opinion of the court in that case emphasised the special circumstances pertaining to the status of the respondent. In its opinion the court helpfully set out the agreed factual background, from which it is apparent that the respondent had been detained under section 14 of the Act, questioned, charged with a contravention of section 5(2) of the Misuse of Drugs Act 1971, following which a DNA sample was taken from her and she was then released from detention. She had not been arrested. The court attached some significance to that latter fact. Having rejected the Advocate depute's comparison between DNA swabs and fingerprints and handwriting samples the court observed:

"We are, moreover, in any event, satisfied that the authorities relied on in this respect were cases where the individual in question had not only been charged but had been arrested and/or had given informed consent to the taking of the evidence in question. But ultimately, the question remains do the section 18 powers authorise the taking of a relevant sample from persons who have been taken into detention under section 14 and while remaining in detention (though not arrested) have been charged?" (para [15])

Thus, while apparently recognising that it is permissible to take samples from a person who has been arrested and charged, the court confined its opinion to the question whether such samples could be taken from someone who had been detained and charged (though not arrested). For reasons that we explain later, with the greatest of respect to the members of the court in Cowie, we have reservations about the soundness of their answer to the question of construction which they addressed, but it is unnecessary for us to remit this appeal to a fuller bench because the question posed, and answered, by the court has no direct bearing on the circumstances of the present case and is thus only of peripheral relevance to our decision.


[15] In Answer 5 the respondent has specified the sequence of events in this case, from which it is apparent that the complainer was arrested before being charged with attempted murder and that the DNA sample was taken thereafter. In Adair v McGarry the court was concerned with the common law powers of police officers to take fingerprints of a person arrested but not committed to prison. The decision of the full bench, apart from the dissenting views expressed by Lord Hunter, was that the police had such a power. In his opinion Lord Justice General Clyde observed:

"It is beyond all doubt that, provided a person has been legally arrested by the police, they may search him for stolen goods, or weapons, or other real evidence connecting him with the crime; and that neither his consent nor a magistrate's warrant is required for that purpose. ... It is also beyond all doubt that, provided a person has been legally arrested by the police, they may examine his person and his clothes for bloodstains and the like, or for any mark on his person which, according to their information, was observed on the person of the criminal when the crime was committed - again, without his consent and without any magistrate's warrant. Every man is entitled to the enjoyment of personal liberty, but he forfeits that right by committing crime; and, where the criminal law warrants his arrest on a criminal charge, his personal liberty is unavoidably invaded, not merely by subjecting him to detention, but also to the extent necessary to enable the police to observe and collect the real evidence (afforded by his person, his apparel, or the contents of his pockets) of his connection with the crime and his identity with the criminal." (Page 78).

Lord Justice Clerk Alness expressed a similar view when he said:

"As regards undue invasion of the personal rights of the accused, one must have a sense of proportion. Certain it is that in practice, hitherto unchallenged, a person who is suspected of crime may be brought - with reasonable violence in the event of his resistance - to the police station, that he may be paraded for purposes of identification, that he may be stripped, and that he may be searched for any incriminating natural or artificial mark upon his person. That mark may include a birth mark or natural deformity, a tattoo mark, or bloodstains, or the like. All these things are done with a view to establishing the identity of the suspect. And yet, it is argued that the comparatively innocuous process of taking a mould of the suspect's thumb is excluded from the rights of the police. I enquire - Why? To that question I have heard no adequate answer. The analogy of straining at a gnat and swallowing a camel suggests itself as appropriate to the argument in question." (page 80).

In our opinion these observations are equally apposite to the taking of a DNA sample by means of a buccal mouth swab. It seems to us, despite the contrary view expressed in Cowie, that the intention of section 18 of the Act was to equiparate such DNA samples with fingerprints. Admittedly the Scottish Law Commission in their "Report on Evidence: Blood Group Tests, DNA Tests and Related Matters" bore to limit their recommendations to non-invasive procedures which did not involve sampling internal to a person's body. As was recognised in Cowie, this restrictive approach would have excluded "samples of saliva or other matters taken from inside a person's mouth" (para [15]). Proceeding on a much broader basis, however, section 18(6A) of the Act, introduced by section 55 of the Criminal Justice (Scotland) Act 2003, expressly permits a constable or a police custody and security officer at the direction of a constable to take a sample of saliva or other material from inside a person's mouth.


[16] The second case relied upon by the solicitor advocate for the complainer was Edwards & Alexander. From the procedural history outlined by Lord Turnbull in his opinion (para [2]), it appears that this was also a case in which the accused were not arrested prior to the taking of the DNA sample, although they had been detained, interviewed and cautioned and charged with various offences. Thus the circumstances were comparable to those in Cowie where the court was concerned with someone who had not been arrested when the DNA sample was taken. As we have already observed, the court in Cowie was careful to draw a distinction between persons in detention and persons who had been arrested, confining its decision to persons who have been detained and "while remaining in detention (though not arrested) (our emphasis) have been charged." As with Cowie the circumstances of Edwards & Alexander are such that the decision of Lord Turnbull is of little assistance in this case where the complainer had been arrested as well as charged prior to the taking of the DNA sample.


[17] Mr Paterson sought to rely upon this decision for another purpose. He submitted that it was clear from Lord Turnbull's opinion that the court had to adopt a two-stage approach to the question of whether to grant a warrant to take samples from a suspect or an accused person. In paragraph 34 of his opinion Lord Turnbull correctly recognised that such an application was not a formality and ought not to be lightly granted. Thereafter he observed:

"In the first place there requires to be an explanation provided by the petitioner as to why it is necessary to seek the Court's authority for such a step. If that explanation constitutes what the Court can accept as special circumstances then it can consider whether to exercise its discretion in favour of granting the application. Whether to do so or not will depend upon whether and to what extent, in the whole circumstances of that particular case, the delicate balance between the public interest and the interest of the accused is disturbed. All parties appearing before me agreed that this was the correct approach."

Lord Turnbull recognised from a consideration of a number of authorities that special circumstances might exist in a range of situations. He also cited Begley v Normand 1992 SCCR 230 as a case in which reference to an intelligible explanation appears. While there is such a reference in that case, the court relied upon earlier observations in Lees v Weston to the effect that it is sufficient if the court is provided with a perfectly intelligible explanation for the fact that an earlier sample might not be sufficient. (Begley, pages 232E - 233A). From a review of the authorities Lord Turnbull sought to distinguish between the isolated nature of a particular error or circumstance necessitating an application for a warrant and an error which had arisen as a result of a widespread practice. If, by that distinction, his Lordship was seeking to suggest that errors caused by reason of a widespread practice could never amount to special circumstances or could never provide an intelligible explanation for the need for a warrant, it respectfully seems to us that he fell into error. In White v Ruxton fingerprint impressions had been destroyed in accordance with a widespread mistaken practice followed by the police. The error clearly resulted from a widespread practice, but the court upheld the sheriff's decision to grant a warrant to take further impressions from the accused. In Lord Turnbull's favour we note that, although he adjourned the hearing for a week to enable the Crown to prepare submissions about specific issues, he was not provided with the assistance anticipated by him. On any view, he was not given the full explanation provided to this court about the guidelines available to police officers at different dates or the decision to instruct Crown counsel to advise on the legality of police procedures and the need for any change in them prior to case of Cowie. Nor does he seem to have received a full citation of relevant decisions at first instance either before or after Cowie. On the limited information provided to him, and relying upon Cowie, Lord Turnbull concluded that the necessity for the application to the court for a warrant had been "routine conduct based upon what seems to have been a systemic failure to appreciate the important change in the status brought about by the act of charging the detainee." In making that comment his Lordship was undoubtedly influenced by the views of the court in Cowie about the protection afforded by our law against self incrimination to persons who have been charged with offences. However, where the broad literal

scope of section 18, as understood by major police forces and reflected in Renton and Brown, Criminal Procedure, 6th ed., at para. 7-21, was not apparently the subject of any challenge by practitioners until the case of Dimmick was heard in March 2011, and where serving judges of the High Court thereafter continued to construe section 18 in accordance with that broad understanding, we would certainly not have thought it appropriate to characterise the practice of the police as a '... systemic failure to apply the law'. At worst, it might have been said that the police were guilty of an understandable error, shared by authors, practitioners and at least some judges of the High Court, as to the proper construction of a statutory provision which ex facie contained no relevant limitation. In this context we regard it as significant that subsequent to Cowie Lord Turnbull himself granted an application for such a warrant in Kazeem Kadiri. Although the application was unopposed, the court nevertheless had a duty to consider the appropriateness of granting the application. If a two-stage approach were appropriate and the alleged systemic failure of the police were truly a bar to the grant of such an application, the decision of Lord Turnbull in Kadiri was incompatible with that approach.


[18] More fundamentally, however, we consider that Lord Turnbull erred in his approach in Edwards & Alexander when he adopted the two-stage test in the determination of the application before him. As is noted above, the authorities cited to his Lordship and to this court illustrate that in determining an application of this sort, the court may be influenced by the existence of special circumstances or of an intelligible explanation for the application. Such considerations are not, however, determinative of the court's consideration of the application; they are merely factors which the sheriff or judge has to take into account in determining how to exercise his or her discretion in deciding the application. These factors must not be decided in isolation, distinct from other factors such as the gravity of the offence and the assistance which the analysis of the requested sample will provide in eliminating or implicating the accused as the perpetrator of the crime. We are supported in that view by the opinion of the court, delivered by Lord Justice Clerk Ross, in Morris v McNeill. In that case, counsel for the complainer adopted a similar approach to that of Lord Turnbull in Edwards & Alexander but the court rejected it. In the third paragraph of the opinion of the court the following passage appears:

"Mr McBride [counsel for the complainer] recognised that the sheriff had a discretion as to whether or not to grant the warrant but he submitted that the authorities showed that a warrant should only be granted if the circumstances were special. Reference was made by Mr McBride and the Advocate depute to four authorities in all, first of all HM Advocate v Milford; Wilson v Milne; Lees v Weston and McGlennan v Kelly. It is unnecessary to rehearse what has been said in all these cases. All that need be said is that it has repeatedly been affirmed by this court that although it is competent to grant a warrant such as was sought in the present case to take a blood sample from an accused or a suspect, such a warrant will not be lightly granted, and will only be granted where the circumstances are special and where the granting of the warrant will not disturb the delicate balance that must be maintained between the public interest on the one hand and the interest of the accused on the other. Mr McBride maintained that although the sheriff in the present case had purported to weigh the interests of the complainer against the interests of the public, he had not demonstrated that this case was in any proper sense a special one. The sheriff had recognised that he was only entitled to grant the warrant if he was persuaded that the circumstances were special but Mr McBride maintained that he had not explained why he thought in the present case that the circumstances were special. It appears to us, however, that the sheriff in the present case has explained why, in his view, the circumstances were special. In the first place he took the view that housebreaking involving the theft of property worth a considerable sum of money was a serious crime, and in addition to that he took the view that an analysis of the blood in the present case would assist in clearing up the housebreaking and either eliminating or implicating the appellant. In our view, having regard to these circumstances, the sheriff was entitled to regard the case as being one which was special. Having so regarded the case, the sheriff then proceeded to weigh the public interest against the interest of the accused. That is the test which it has been repeatedly stated is the appropriate test to apply in circumstances of this kind."

From the foregoing passage it is apparent that in considering such applications the court is not confined in the first instance to obtaining a satisfactory explanation for the application, without having regard to such factors as the seriousness of the offence and the value of the sample sought to be obtained in assisting the identification of the person who committed the crime. On the contrary such factors are themselves directly pertinent to the consideration of whether there are special circumstances or there is an intelligible explanation for the application for a warrant.


[19] In the present case the complainer is charged with attempted murder and the Advocate depute advised us that the victim of the alleged assault has suffered brain damage as a result of which he is permanently impaired. Against that, there is the minimal nature of the intrusion which will occur if the warrant is granted to take a mouth swab from the complainer. In addition, the need for a fresh sample has been occasioned by the uncertainty surrounding the admissibility of the evidence relating to the first sample. It is desirable that such uncertainty be resolved at the earliest opportunity. The earlier sample was taken in conformity to a practice which had existed for many years. The police, the legal profession, including defence solicitors and counsel, Crown counsel and first instance judges had considered the practice to be lawful but questions had arisen about its legality since the decision in Cowie. It is not in our view appropriate that the investigation and suppression of crime, which had been undertaken in good faith, should be frustrated because of such uncertainty. Even although the practice has altered since the hearing in Cowie, it would be 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 these procedures. Nor do we consider it appropriate that the decision in each case should be left over for the trial court to determine as one of admissibility on the assumption that the original sample was obtained unlawfully. The public interest and the interests of the administration of justice, as well as the interests of the accused, are best served in each case by an early resolution of the issue. That will be achieved by the court determining to grant or to refuse an application for a warrant to take a fresh sample. That decision will inform parties prior to the commencement of any trial - and, in many cases such as the present, even prior to the service of an indictment. Indeed the outcome of that decision could possibly result in a decision to take no further proceedings. We agree with the sheriff that it is desirable, in advance of a trial, to attain certainty in regard to the admissibility of any DNA evidence intended to be led. If it had been necessary to obtain an intelligible explanation of the need for the warrant, independent of the gravity of the offence and the desirability of exculpating or implicating the accused, we consider that the need for certainty about the admissibility of DNA evidence would be sufficient. We also agree with the sheriff that achieving such certainty was to the advantage of the complainer's interests as well as the public interest in the investigation and suppression of crime. The sheriff in any event concluded that the public interest outweighed the interests of the accused in this case. Mr Paterson did not seriously challenge that aspect of the sheriff's decision.


[20] Had it been necessary to do so for the purposes of this appeal, we would for ourselves - with the greatest of respect for the members of the court which decided the case of Cowie - have felt compelled to question the soundness of that decision in several respects. In particular:

(i) By reference to inter alia the decision of this court in Lees v Weston, the rulings of the European Court of Human Rights in Saunders v United Kingdom (1996) 23 EHRR 313 and Jalloh v Germany, and the recent judgment of the Supreme Court in HMA v P, the taking of fingerprints, bodily samples or DNA swabs from a detained or arrested suspect would not have struck us as raising any issue of self-incrimination. As Lord Hope explained in the last-mentioned case, at para. [10],

'... The position as regards evidence ... which is not derived from anything that the accused said to the police at his interview is not in doubt. As the court is primarily concerned with the right to remain silent, the right not to incriminate oneself does not extend to incriminating evidence that has been obtained from him other than by reference to what he has said. In Saunders v United Kingdom, at ... para 69, the court observed that, as commonly understood in the legal systems of the contracting parties to the Convention and elsewhere, the right not to incriminate oneself does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for DNA testing. It returned to the point in Jalloh v Germany at ... para 102, where it said:

'The Court has consistently held, however, that the right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the contracting parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood, urine, hair or voice samples and bodily tissue for the purpose of DNA testing'.'

(ii) Where Parliament's intention in enacting what is now section 18 of the 1995 Act, following (and indeed going beyond) recommendations by the Scottish Law Commission referred to above, was plainly to increase routine police powers in this area to a uniform level covering both detained and arrested suspects - on which see for example paras. 2.18 and 2.32 of the Commission's report -, we would not have been attracted by a construction of section 18 which (a) sought to draw a material distinction between arrest and detention, or (b) involved implying limitations of which neither the Commission's report nor the wording of the statute itself contained any hint. For our part we would have found it hard to accept that the charging of a suspect, whether in detention or under arrest, should, without clear provision or antecedent discussion, be taken to import an automatic bar to the exercise of the prescribed powers.

(iii) Given that suspects are often charged with offences at or about the time when their status moves from detention to arrest, there would in our view have been no obvious practical reason to construe section 18 in such a way as to create technical distinctions and boundaries in that narrow area. A construction requiring the police to interrupt investigations prior to charge in order to arrange for necessary samples to be taken would have seemed to us unreasonable, and the same would have applied to a construction necessitating the trouble and expense of obtaining a warrant from the court in all post-charge cases.

(iv) As regards previous decisions of the High Court at first instance, we would in these circumstances have been inclined to prefer the considered views of Lady Stacey in HMA v Fotheringham and Others and HMA v Lukstins, and of Lord Tyre in HMA v Murphy & Stuart, to the obiter remarks of Lady Smith in HMA v Dimmick.

Authoritative resolution of these issues would of course have required a remit of this appeal to a larger court. For present purposes, however, where criminal proceedings are pending and there is some measure of urgency, we do not consider such a course to be either necessary or appropriate. For one thing, as noted above, the decision in Cowie is readily distinguishable on the ground that the court was not there dealing with any application for a warrant. For another, as we have observed above, the ratio of the decision in Cowie arguably appears (from paras. 14 and 15) to concern only the admissibility of samples taken from a suspect who, like the appellant in Dimmick, was detained and charged but not yet arrested. Here, by contrast, the appellant's status had moved from detention to arrest before he was charged and the initial DNA swab was taken. On any view, as it seems to us, the court's construction of section 18 in Cowie, even if of binding authority in its proper context, was still no more than one of the background facts and circumstances to be weighed up by the sheriff in reaching a discretionary decision as to whether or not the warrant sought should be granted in this case. The relevant petition was of course presented by the Crown within days of the decision in Cowie being issued, and the speed with which the Crown reacted to an apparently significant change in the legal landscape would equally have been a factor of some importance in the sheriff's deliberations.


[21] In all the circumstances we are satisfied that the sheriff did not err in this case and we shall, accordingly, refuse to pass the Bill.


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