Scottish High Court of Justiciary Decisons

HIGH COURT OF JUSTICIARY
	[2011] HCJ 68 IN821/10 OPINION by THE HONOURABLE LADY STACEY in causa HER MAJESTY'S ADVOCATE against NEIL FOTHERINGHAM, WILLIAM EDWARDS, DAVID ALEXANDER AND ANTHONY LOWELL _______

Act: Ferguson QC, AD,; Crown Agent

Alt: McMenamin QC; Latif. McQuillan Glasser and Waughman, Hamilton

5 July 2011

[1] This indictment against four accused called for trial in the High Court in Glasgow on 11 April 2011 and the following days. The trial did not proceed to the jury as a motion to desert made by counsel for Mr Edwards was granted. Prior to any evidence being led counsel for Mr Alexander sought to challenge by minute the admissibility of certain evidence and I heard argument on that. I refused the minutes and evidence was led over a number of days. After the case had been deserted I was invited by the Crown to write on my reasons for refusing the minutes.

[2] Senior counsel tendered a minute in terms of section 79(2)(b)(iv) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) and a devolution minute on 5^th and 6^th April respectively. On the first day of trial she moved to have these minutes heard though late. The Crown had had notice of the minutes. I was informed by senior counsel that the minutes were late because she had been instructed in the case late and had taken a view that the matter should be raised and had drafted the minutes as soon as possible. In all of the circumstances I allowed the minutes to be received and argued.

[3] Senior counsel informed me that she and the Advocate Depute were agreed that the correct procedure would be for the Crown to explain why the evidence that she sought to challenge was in the Crown's submission admissible. There was no need for evidence as the parties were agreed as to the facts as set out in Joint Minute of Agreement as follows:

"That the Advocate Depute and Latif counsel for the accused hereby agree and concur that the following facts are hereby admitted:

1. That on 16 September 2010 David Alexander (the Minuter) was detained at his place of employment at Hill Street Wishaw in terms of section 14 of the Criminal Procedure (Scotland) Act 1995. The time of the detention is recorded as being 0925 hours. The minuter was taken to Hamilton Police Office. The time of the Minuter's arrival is recorded as 0945. The detention of the Minuter was accepted by the custody officer at 0948 hours. Reference is made to Crown Productions 27 and 28.

2. That on 16 September 2010 the Minuter was interviewed at Hamilton Police Station by D. C. Conway and D.C. McDonald. The Minuter was allowed access to his solicitor for legal advice before the commencement of the interview. The interview commenced at 1320 and was terminated at 1337. The Minuter's solicitor was present for the duration of the interview. The interview forms Crown Production 42. At the termination of the interview the Minuter was charged.

3. That on 16 September 2010 the Minuter's solicitor left Hamilton Police office at 1339.

4. That on 16 September 2010 at Hamilton Police Office at 1545 Stuart Livingstone and Andrew Duffin, both witnesses and both designed as force support officers took from the Minuter evidential samples described as 'DNA sample 1 and DNA sample 2'. These form Crown label 20.

5. That on 16 September 2010 at Hamilton Police Office at 1527 Stuart Livingstone and Andrew Duffin both witnesses and both designed as force support officers took the Minuter's finger prints. These form Crown Production 78".

[4] Senior counsel explained that the Minuter was interviewed between 13.20 and 13.37 with his agent present. During the course of that interview police officers asked him if he knew anything about DNA and forensic medicine and asked if he had a twin brother. At the end of the interview he was told that he would be cautioned and charged and "processed" and that it would then be decided whether he was to be released on bail or not. At the end of the interview he was informed by the police that they would take him and process him and "change his status". He was cautioned and charged. At 15.45 the police officers took a mouth swab for the purpose of DNA comparison. The taking of that swab was documented in a form, Crown Labelled Production 20 in which paragraph 7 was headed "subject status" and below that were various boxes as follows:

"Arrested

Section 14

Charged

Elimination (under caution)"

The first box, that is "Arrested" had been ticked, which was incorrect as the accused had been not only arrested but also charged. Counsel told me that fingerprints were also taken at that time and when I asked her if she was seeking to have the fingerprint evidence excluded she said that she was as she was arguing that everything after the time of charging was inadmissible. She said however that she would concentrate on the mouth swab.

[5] The preliminary issue minute stated that objection was taken to the admissibility of a DNA sample. The minute narrated the facts as set out above. The minute stated that sections 18(2) and 18(6A) of the 1995 Act are not operative once a person has been charged. Further, it states that the taking of a swab was an interference with accused's private life, and as it was not carried out in accordance with law, it was a breach of the accused's rights under Article 8 of the European Convention on Human Rights. The devolution minute stated that the breach of Article 8 as outlined above having occurred, and use of the evidence thereby obtained would result in an unfair trial.

[6] The Advocate depute began by pointing out that neither minute made clear that the accused raised any point about fingerprints and he had understood that the only point raised was that of the swabs for DNA. He argued that the question before the court was whether or not the taking of the mouth swab was lawful. If the answer to that was "yes" then the minutes would fall to be repelled. He argued that if the answer was that the taking of the swab was irregular, then he would argue that it was excusable in light of the case of Lawrie v Muir 1950 JC 19. I agree with the Advocate depute that the minutes do not refer to the fingerprints and I did not consider that any argument other than that concerning the mouth swab was properly before me.

[7] Section 18 of the 1995 Act so far as relevant is as follows:

"18 (1) This section applies where a person has been arrested and is in custody or is detained under section 14(1) of this Act.

(2) A constable may take from the person, or require the person to provide him with, such relevant physical data as the constable may, having regard to the circumstances of the suspected offence in respect of which the person has been arrested or detained, reasonably consider it appropriate to take from him or require him to provide, and the person so required shall comply with that requirement.

(3)....

(4)....

(5)....

(6) A constable may, with the authority of an officer of a rank no lower than inspector, take from the person -

(a) from the hair of an external part of the body other than pubic hair, by means of cutting, combing or plucking, a sample of hair or other material;

(b) from a fingernail or toenail or from under any such nail, a sample of nail or other material;

(c) from an external part of the body, by means of swabbing or rubbing, a sample of blood or other body fluid, of body tissue or of other material;"

(6A) A constable, or at a constable's direction a police custody and security officer, may take from the inside of the person's mouth, by means of swabbing, a sample of saliva or other material.

(7)....

(7A) For the purposes of this section and sections 19 to 20 of this Act "relevant physical data" means any:-

(a) fingerprint;

(b) palm print;

(c) print or impression other than those mentioned in paragraph (a) and (b) above, of an external part of the body;

(d) record of a person's skin on an external part of the body created by a device approved by the Secretary of State."

(7B)....

(8) Nothing in this section shall prejudice:-

(a) any power of search;

(b) any power to take possession of evidence where there is imminent danger of its being lost or destroyed; or

(c) any power to take prints, impressions or samples under the authority of a warrant".

[8] The Advocate depute submitted that the swabs had been taken at a time when the accused had been arrested and was in custody. Therefore on a straightforward literal reading of the section he was a person to whom section 18 applied. The argument from the defence was that once he had been charged he was under the protection of the Court and that no sample could be taken unless there was informed consent or a warrant. The Advocate depute submitted that the section does not recognize any difference between a person who has been arrested and is in custody or is detained under section 14 and a person who has been detained, arrested and charged. He submitted that the scheme of the section was that once a person had been detained, which by definition would require that there was a reasonable suspicion that he had committed an offence, then the samples referred to in section 18 could lawfully be taken from him. The defence appeared to agree that such samples could have been taken either immediately on detention or at sometime during the interview process so long as they were taken before the end of the process at which stage the accused was charged. Therefore if the police officers had told him that he was arrested; if they had taken a sample; and immediately thereafter had charged him, the defence would not argue that the sample had been taken unlawfully. The Advocate depute submitted a proper construction of the 1995 Act involved reading section 18 as applying to those who had been charged as it applied to those who had not. The Advocate depute put before me the Scottish Law Commission Report on Evidence; Blood Group Tests, DNA Tests and Related Matters, 18 October 1989. Nowhere in the report is a distinction drawn between a person who had been arrested and was in custody, and a person who had been arrested and charged and was in custody. Section 2 of the report set out the law on criminal cases as at the date of the report. In paragraph 2.1 it is noted that the taking of samples from a person is an assault unless it is authorised by law. Reference is made in paragraph 2.3 to Adair v McGarry 1933 JC 72 in which it was held that the police were entitled to take fingerprints without obtaining a warrant. The case of Adamson v Martin 1916 1 SLT 53 was distinguished on the basis that in that case the pursuer (it being a civil case following a criminal investigation) had been released on bail. In paragraph 2.5 there is reference to the case of McGovern v HMA 1950 JC 53 in which fingernail scrapings were taken from a person who was under suspicion in a police station but had neither been arrested nor charged. It was held that the evidence had been improperly obtained, the Crown conceding the point. In the case of Bell v Hogg 1967 JC 49 blotting paper rubbings of an accused person's hands were taken while he was in custody under caution but not under arrest. That was held to be legal. In paragraph 2.9 it was noted that where a person has pled not guilty to an offence and has been committed for trial, a warrant is required for the taking of fingerprints or other impressions or samples from his body. The authority for that proposition is Lees v Weston 1989 SLT 446. Paragraph 2.10 of the report is as follows:

"If one imagines a police investigation from start to finish, it seems, on the basis of the above cases, that the common law powers of the police to take evidence from the body of the accused without his consent are as follows. At the initial stage of investigation before the suspect has been arrested, the police have no general powers to take samples or impressions, unless they obtain a warrant or the matter is one of urgency. It is not easy to envisage a case where it would be a matter of urgency to take a sample of a suspect's own blood or other body fluid or tissue for the purpose of blood group testing or DNA testing. Once a person has been arrested, the police may take fingerprints and, probably, scrapings from underneath his fingernails from him without a warrant. With regard to samples of blood and other body fluids or tissues, a warrant would be required, the argument being that the ordinary powers to search and fingerprint an arrested person as stated in McPhail on evidence:-

'do not extend to the invasion of or removal of any part of the person's body. The taking of blood samples, dental impressions and all searches which involve invasion of the body or removal of any part of it, such as hair or nail-clippings, should ordinarily be previously authorised by a warrant granted by a sheriff upon the application of the procurator fiscal.'

Once the accused has been committed for trial, a warrant would be required for the taking of samples or impressions. In deciding whether or not to grant a warrant, a sheriff must weigh the public interest in the investigation and suppression of crime against the interests of the person from whom the sample is to be taken."

[9] The Commission in paragraph 2.32 note that in terms of the Criminal Justice (Scotland) Act 1980 when a person is detained under that Act a constable may take fingerprints, palm prints and other such impressions as the constable may, having regard to the circumstances of the suspected offence, reasonably consider appropriate. The Commission state that it would be useful in their opinion to have the same rule apply to lawfully arrested persons and to lawfully detained persons. They therefore suggest that the section should be made more general in its application so that it would apply in all cases where a person has been lawfully arrested or is lawfully detained. They state in paragraph 2.33 that it is their view, confirmed by the results of consultation, that there are certain samples which could reasonably be taken from a person's body, if that person were lawfully arrested or detained, on the authority of an appropriate police officer without the need for a sheriff's warrant. They suggest that such samples should be things that can be taken externally such as hair, a nail or the area under a nail, and a sample swabbed or rubbed from any external part of the body. They suggest that there should be a provision allowing reasonable force to be used in order to take such a sample. The Advocate depute pointed out that in the careful consideration given by the Commission to the law at the time of writing and their proposed amendments to the law, no difference was made between a person who had been arrested and was in custody and a person who had been arrested and charged and was in custody. The word "charged" did not feature in the paper. It would have been possible had the Commission so wished for them to have recommended that samples could be taken only before a person was charged but they did not do so. He argued that the Commission clearly envisaged that samples could be taken from a person who was detained or from a person who had been arrested and charged.

[10] The Advocate depute then turned to the terms of the 1995 Act as amended. He noted that section 18(6A) allowed a constable to take a sample from the inside of a person's mouth by means of swabbing. That of course was a step further that that provided for in the law commission paper and was brought in by the Criminal Justice (Scotland) Act 2003. He maintained that it was clear that the sample could be taken after a person had been charged.

[11] In Davidson v HMA 1951 J.C. 33 an accused person arrested on a number of charges of theft and uttering was fingerprinted and in accordance with the usual practice asked to sign his name on the fingerprint form for the purpose of identification. Two days later he was charged with other offences of a similar nature and was asked to give six specimens in his ordinary handwriting of one of the names alleged to have been forged. At his trial his signature and the fingerprint form and the specimen of his writing were used in evidence against him. It was held in an appeal against conviction that both the signature and the specimens of the forged name had been properly admitted and his appeal was dismissed. It was argued on his behalf that the taking of the signatures of the forged name were an attempt to elicit evidence from the accused to support the case against him. Lord Justice Clerk Thomson in refusing the appeal said the following:-

"It is obvious of course that there is a marked difference between the subject matter of a statement made by an accused person and the actual handwriting in which the statement is made. A cogent reason for exercising caution in admitting a statement made to an investigating officer is that the terms of such a statement may be effected by all kinds of considerations. Various kinds of influence may operate and they operate unfairly to an accused person. But so far as actual handwriting is concerned, such considerations do not obtain. Handwriting is entirely an object of matter. It is not subject to the same sort of subjective influences but is rather a matter of real evidence, like something in an accused's pockets of the clothes that he is wearing, which the police are entitled to seize and use as evidence without any objection or criticism. In my view the question whether the handwriting is admissible, simply for the purposes of comparison with other handwriting, does not fall to be settled when the same considerations as would apply to the admissibility of a possibly incriminating statement. Once I have been satisfied that there was nothing unfair in the way in which the specimen signatures were obtained, that there was adequate warning and that there was no pressure, it seems to me that it cannot be said that the evidence so obtained was not properly admissible for the purposes of comparison with other handwriting".

The Advocate depute argued that the statutory regime under which the police operated was different in 1951 but that the point that the Lord Justice Clerk was making was that the gathering of real evidence was different from asking questions of a person who had been charged.

[12] The Advocate depute then referred to the minutes of the case of HMA v Nicola Jane Dimmock in which a continued preliminary hearing had been held on 15 March 2011, and a decision given the next day. Evidence was heard by Lady Smith on a minute which argued that samples taken after the accused had been charged were not admissible. In an ex tempore judgment, which was recorded in the minutes on 16 March 2011, Lady Smith found that the objection was well founded. It was found that the accused was detained in terms of section 23(2)(a) of the Misuse of Drugs Act 1971. Therefore the powers of the police under the 1995 Act were not the subject matter of the court's decision. However, the court had expressed a view, which was obiter. It was held that:

(a) that the mouth swab was taken from the accused after she had been charged - that is her status had changed from that of a suspect to an accused person and

(b) that the accused did not consent to the taking of the swab.

The court found that an accused person is always recognised as being under the of the Court. Thus at the stage of being an accused person answers to questions asked after charge are inadmissible. Her Ladyship stated:-

"Given that the police cannot recover statement evidence at that stage by asking questions is it conceivable that Parliament intended that section 18 of the 1995 Act empowered a police constable to take a swab from the inside of an accused's mouth where he does not form consent to it being done? The answer to that question must in my view be no. I am not persuaded that section 18 can be interpreted as impliedly covering circumstances where the person has not only been arrested or detained but also where had has been charged."

Her Ladyship found that it was simplistic to argue that a person who had been arrested and charged had been arrested and was therefore a person to whom section 18(1) applied. The substance of the issue is that proper recognition has to be given to a person's status once they have been charged. Lady Smith held that after that point it is not open to the police to recover evidence from the accused unless they do so under the authority of the appropriate warrant which will have involved judicial consideration of the relevant interests including those which the accused has in having her Article 8 rights respected, or after informed consent has been given. Her Ladyship found that neither of those circumstances occurred and accordingly there was no lawful basis for the recovery of the mouth swab.

[13] The Advocate depute argued that the constitution of section 18 in the obiter dicta quoted above is wrong. The Advocate depute argued that the case of Davidson v HMA referred to above made it plain that before either the 1980 Act or the 1995 Act had been enacted there was no significance at common law, so far as real evidence was concerned, in whether or not a person had been charged. He argued that the Scottish Law Commission in recommending a statutory basis for the taking of samples did not make a distinction between those who had been charged and those who had not; rather they referred to persons who were lawfully in custody. He maintained that the fact that being charged is not mentioned in the statute is consistent with the common law position. He argued that the scheme of the act was plain; invasive sample taking required a warrant and that the citizen's Article 8 rights were respected by Parliament considering that if the sample was to be invasive then there should be a warrant. Samples such as a swab from the inside of the mouth were provided for by the 1995 Act.

[14] The Advocate depute noted that in the case of Dimmock there was no submission about the case of Lawrie v Muir. The Advocate depute argued that if I were not with him in his primary submission, then there could not be said to have been much difference between taking the swab at the time found to be unlawful and taking it a few moments before which would have happened if it had been taken after arrest but before charge. On that basis any irregularities should be allowed.

[15] Senior counsel for the accused argued that all of the cases referred to in the Scottish Law Commission Paper were about people who had not been charged. She made reference to Renton & Brown at paragraph 24.49. She distinguished the case of Davidson as the accused in that case had given consent. She commended to me Lady Smith's opinion and said that it was inconceivable that the police could not take statements but could take swabs. Counsel argued that all accused persons have a right to decline to self incriminate. She argued that a person was under the protection of the Court once he had been charged.

[16] Senior counsel argued that the principle was that of fairness. She referred to the concept of "the chargeable suspect" and to the cases of Miller v HMA 1997 SCCR 748 and HMA v Penders 1996 SCCR 404. The person is particularly vulnerable when charged and the change of status brought about by being charged is important. The police lose the power to question a suspect after he has been charged. She argued that these cases highlight the fact that after charge there is a marked difference and the person is under the protection of the court. Senior counsel argued that section 18 obliges a person to give a sample; he cannot refuse. She argued that Parliament could not have intended that section to apply to a person who was under the protection of the court. Any samples taken after charge required either a warrant or the informed consent of the accused.

[17] Senior counsel developed her argument by arguing that any statement taken after charge must be completely voluntary if it is to be admissible. . That is why it is taken by officers who are not already connected to the case. She argued that the Crown seek to make a distinction between statements and real evidence, but that protection is provided in the modern age by the taking of statements being recorded and filmed, but even then such a statement will not be admissible unless voluntarily given. She then referred to Brown v Glen 1997 SCCR 636, arguing that it was authority for the proposition that a person who was a suspect should be told that he need not hand over any item. (Lord Sutherland at 639E) She reminded me that we are one step further on here as the person is more than a suspect as he has been charged. She argued that the section should not be construed so as to give the charged person no protection.

[18] Senior counsel argued section 18 of the 1995 Act refers to persons arrested, in custody, and detained. It is inconceivable that Parliament omitted to refer to person who had been charged by mistake. The omission must have been deliberate. She acknowledged that the police could have taken the sample when the accused was detained, or when arrested, which would have been very shortly before he was charged. Senior counsel referred to section 18(6) by which certain samples can be taken only on the authority of an inspector. 18(6A) provides for swabs to be taken from the mouth, but there is no requirement of authority from a senior officer. Thus in section 18(6A) there is no measure of legal protection for a person who has been charged. She argued it is an invasive procedure and so all said it was all the less likely that Parliament intended it to apply to people who have been charged.

[19] Senior counsel then turned to the European Convention on Human Rights (ECHR) implications. The swab is an invasion of privacy and therefore potentially a breach of the article 8 rights of the citizen. She argued that the taking of the swab was not in accordance with law because section 18 only allows such a swab to be taken from a person who is not charged. Thus there is no justification for interference with his rights. She referred to the case of Calder v Frame 2007 JC 4. Senior counsel referred to the case of Cadder v HMA 2010 SCCR 951 for the proposition that this court must acknowledge rights under ECHR.

[20] Finally senior counsel argued that there was no urgency to obtain the samples and so any argument that irregularity could be excused had no proper basis. The proper procedure would have been to seek consent, which failing to obtain a warrant.

Discussion

[21] In my opinion the terms of section 18 of the 1995 Act when read in context should be construed as to permit the taking of samples from a person who has been charged. Thus I find that in light of the evidence agreed by joint minute, evidence of the taking of the swab and the reports which flow from it are admissible.

[22] I have come to that view in light of the discussion in the cases on which I was addressed concerning the difference between self incrimination by means of being asked and answering questions when in police custody, and the collation of evidence by means of taking a sample by the police from a person who has been detained, or arrested, or arrested and charged, and who is still in custody. I do not base my decision on the argument that a person who has been detained, arrested and charged is a person who comes within the wording of section 18(1), namely "a person [who] has been arrested and is in custody or is detained under section 14" . I accept that while the accused person in this case had been detained and had been arrested and was in custody, his being charged did change his status and that change requires to be considered in order to decide if it affects admissibility of evidence then obtained.

[23] It is clear that the law is jealous of the rights of the charged person, and that evidence is likely to be inadmissible if it consists of a statement made after charge, with the exception of any reply to caution and charge, unless that statement is truly voluntarily given. It is also clear that the cases on which I was addressed make a distinction between real evidence, being evidence of things, and statements which exist only when they are made by the accused. I found the opinions of Lord Justice Clerk Thomson in Davidson v HMA and Lord Justice Clerk Ross Lees v Weston to be clearly to that effect. The former are generally admissible, subject always to fairness and relevancy, and the latter are generally not admissible. In my opinion it would be odd if the police were entitled to take a sample from a person immediately before they charged him but not immediately after they did so. It seems to me that the Scottish Law Commission report has been written on the basis that a person who is arrested will in most cases be charged at or about the same time, and in referring to a person who has been arrested the writers of the report did not mean to exclude a person who had been charged. In my opinion the 1995 Act should be construed in the same way. In section 18 the order of the wording of subsection (1) is important. It is as follows:-

"(1) This section applies where a person has been arrested and is in custody or is detained under section 14 of this Act."

Thus the wording does not follow the usual, although not inevitable, chronology, where a person will be detained then arrested. Rather it begins by referring to a person arrested and in custody, and then refers to a person who is detained. It seems to me that the focus is on a person who is lawfully in police custody. The section does not apply to a person who has been arrested, and charged, and liberated. Such a person may be obliged to provide samples by bail conditions. Thus in my opinion the section gives the police powers during the period that a person is lawfully in their custody prior to his appearing in court. During that period a charge will usually be made. I am aware of the case of Johnston v HMA 1993 S.C.C.R. 693 in which a statement taken by police officers between arrest and charge was found to be admissible, which had it been taken after charge is not likely to have been admissible. In my opinion that emphasises that a charged person is under the protection of the court as regards evidence which exists only when he speaks and gives a statement. It is not however authority for the proposition that real evidence cannot be collected from a person who has been charged.

[24] It seemed to me that one had to decide, if Article 8 was engaged, whether the act was in accordance with law, as set out in Calder v Frame as follows at para 32 as follows:-

"We accept that that requirement of lawfulness expressed in articles 8 and 1 demands more than compliance with the relevant provisions of domestic law. The rule of law is inherent in these and other articles of the Convention and to be lawful interference in Convention rights must also be compatible with the rule of law. The provisions of the domestic law must therefore be sufficiently precise and foreseeable in effect. There must be a measure of legal protection against arbitrary interference by public authorities with Convention rights. The scope of any discretion must be adequately defined. Measures affecting fundamental rights must be accompanied by appropriate procedural safeguards. The issue in this case is not with acceptability of those general propositions but with the proper application of them to the circumstances of the case."

The defence argued that the samples that are listed in section 18(6A) cannot be taken in accordance with law from a person who has been charged and is therefore in the protection of the court. It was not argued that such samples cannot be taken from a person who has not been charged but who has been detained or arrested. Thus the section itself is not said to be incompatible with convention rights. As I have found that the proper construction of the section is that it apples to those charged as well as those detained and arrested, it follows that I find that the taking of the samples is in accordance with law.

[25] In my opinion the 1995 Act provides by section 14 for detention where a constable has reasonable grounds for suspecting that an offence punishable by imprisonment has been committed, for the purpose of carrying out investigations into the offence. Section 18 in the same part of the Act provides a framework in which that investigation may be carried out. In my view safeguards are provided by other provisions of the criminal law which set time limits for detention, and require an arrested and charged person if not liberated to be brought before the court in a short space of time. Counsel for the defence conceded the point as regards a person detained and a person arrested whether he had previously been detained or not so long as the person had not been charged. I did not accept her argument that the section must be read as allowing sample taking, that is the collection of real evidence, to be undertaken only up until the time of the suspect being charged. Rather I took the view that samples of the prescribed type could be taken between entry to detention, and the completion of the phase of investigation carried out by the police, that is, immediately after caution and charge.

[26] In coming to a view different from that of Lady Smith I am conscious that I may have been favoured with more detailed argument and more copious citation of authority than she was. I note from the Minute in which the decision in Dimmock is given that the only case to which the court was referred was Rudling v HMA 2010 SCCR 155. That case is not concerned with section 18 of the 1995 Act. Dimmock was a case under the Misuse of Drugs Act 1971. The court found that the police were in some degree of confusion as to their powers under the warrant. The focus was not on any powers which may exist under the 1995 Act. I had the advantage of being addressed by the Advocate depute and senior counsel on a joint minute in which they had helpfully agreed the evidence, and I had a full citation of authority.

[27] I refused the minutes as I took the view that the Advocate depute was correct in arguing that the terms of section 18 apply to persons who have been arrested and charged as well as to those arrested and those detained. .I entirely accept that a person who is charged cannot be asked questions and have the answers given by him used as admissible evidence against him because he is under the protection of the Court. I do not accept that the taking of samples of whatever sort Parliament has decided are appropriate in terms of invasiveness, is in the same category. I find that the collection of real evidence is a different matter from the obtaining of a statement from an accused person.

[28] The Advocate depute's argument that any irregularity should be excused does not require to be decided, as I was with him in his primary submission. I would have decided it against the Crown, if I had to come to a decision. If I had decided that the 1995 Act does not allow the taking of the sample, then the police would have required consent, or a warrant. I would not have excused the irregularity of not obtaining either in these circumstances.