Scottish High Court of Justiciary Decisons

Act: Macari AD; Crown Agent

Alt: Latif instructed by JBD Henderson

7 July 2011

[1] In the High Court in Inverness on 15 June 2011 I heard a legal debate on a devolution minute and a preliminary issue minute. The parties agreed the evidence by joint minute and the debate related to whether that agreed evidence was admissible or not. The Crown opened the debate, the defence replied and the Crown made further submissions in reply.

[2] The indictment consisted of 3 charges, the first being a charge of rape contrary to the Sexual Offences (Scotland) Act 2009 and at common law. The argument before me concerned only this charge. The joint minute was in the following terms:-

1. That at 1656 hours on 16 January 2011, in Tesco Car Park, Eastfield Way, Inverness the accused was detained in terms of section 14 of the Criminal Procedure (Scotland) Act 1995 by witnesses DC Price and DC Culross in relation to an offence under section 1 of the Sexual Offences (Scotland) Act 2009 said time being recorded in Crown Production 2.
2. That at 0235 hours on 17 January 2011 the accused was interviewed at Burnett Road Police Station Inverness by witnesses DC MacDonald and DC McLeod.
3. That at about 0454 hours on 17 January 2011 the interview was terminated and the accused was arrested by the said witnesses.
4. That Crown Production 2 is an accurate record of the times of detention and arrest of the accused. The detention form includes the statement on page 2, inter alia, that 'You may now be questioned and searched. Your finger prints, biological samples and other impressions may be taken. You may be taken elsewhere for these processes to be completed'.
5. That at about 2114 hours on 17 January 2011 the accused was cautioned and charged by witnesses DC MacDonald and DS McGillivray.
6. That shortly after 2114 hours and at the conclusion of the accused being cautioned and charged an evidential DNA sample (Crown label 15) was obtained from the accused by DS McGillivray in the presence of DC McLeod. Said sample was obtained by taking a swabbing from the inside of the accused's mouth.
7. The police when they took the evidential DNA sample from the accused were acting under the terms of section 18(6A) of the Criminal Procedure (Scotland) Act 1995.
8. The police did not seek a warrant to take the evidential DNA sample.
9. The consent of the accused with regard to taking the evidential DNA sample was not sought by the police.

[3] The timing in this case was set out in the joint minute from which it can be seen that the accused was detained at about 5.00pm on 16 January 2011 and was arrested at about 5.00 am next day. He was cautioned and charged at about 9.00pm that day. The samples were taken from him shortly afterwards. There were thus long periods of time between his detention and arrest, and between his arrest and being charged. Nothing however turned on that.

[4] Counsel for the defence sought to argue that a DNA swab taken from the inside of the accused's mouth was not admissible in evidence because it was not taken in accordance with law, and that as it was not taken in accordance with law, the taking of it had breached the accused's rights under Article 8 of the European Convention on Human Rights (ECHR). The use of such evidence, it was argued, would result in a breach of the accused's right to a fair trial, as provided for by Article 6 ECHR. The Crown argued that it was admissible, and that Article 8 rights had not been breached and that there would be no breach of Article 6.

[5] The Advocate depute submitted that the issue was the proper construction of section 18 of the Criminal Procedure (Scotland) Act 1995, (the 1995 Act). The question for the court to consider was when the swab was taken after caution and charge, were the police acting lawfully. He submitted that the section applies when a person was detained in accordance with section 14, or when a person was either detained and later arrested, or arrested without having been detained. He understood that the defence position was that as soon as an arrested person was charged, section 18 no longer applies. The argument in the minute for the defence was that being charged gave the citizen special status as a direct consequence of which samples could not be taken without a warrant or consent. The defence minutes founded on the fact that there is no reference to caution and charge in section 18 and therefore the defence sought to argue that Parliament did not provide power to the police to take samples from citizens after they were cautioned and charged. The Advocate depute submitted that was not correct construction of the 1995 Act. If it had been intended to have only a specific window of time during which the detained or arrested person could be lawfully required to give swabs then the words "prior to charge" could have been inserted in the section. He submitted that failure to make reference to being charged must be read as permitting swabs to be taken after charge.

[6] The Advocate depute submitted that the section when read literally allows swabs to be taken from someone who is arrested and is in custody and that applies to the current accused. He accepted that the accused had also been charged, but submitted that he had been detained, and arrested and was in custody. Thus the section applied to him. He then went on to submit that there was no requirement for a person to be charged. He submitted that sometimes people in the police station are too unruly or too drunk to be charged and he went so far as to say that the charge happened as an arbitrary event, at an arbitrary time.

[7] The Advocate depute submitted that the Scottish Law Commission in 1989 had considered questions relating to the taking of samples and the appropriate time to do so. He referred to the report; (Scot Law Com no 120) entitled Report on Evidence: Blood Group Tests, DNA Tests and Related Matters. He adopted the Commission's analysis of the law at the time of the report as set out in paragraphs 2.9 and 2.10 and submitted that the relevant time as a cut off point was full committal. He argued that in paragraph 2.10 the Commission correctly understood that at that time police could lawfully take certain samples from a person who had been arrested. The distinction made at the end of the paragraph with a person who had been committed for trial, showed that the Commission included in the description of a person arrested, also a person who had been charged. He referred to the cases of Adair v McGarry 1933 J.C. 72 Lee v Weston 1989 J.C. 35, and Namyslak v HMA 1995 S.L.T. 528. He relied on the opinion of the court in Namyslak at page 530 paragraphs C to D where the Lord Justice General (Hope) said:-

"We accept the Crown proposition that if a person is under arrest but not yet fully committed, it is still open to the police to carry out their investigations and that, if these involve fingerprinting, they may at this stage finger print the person who is in their custody on any number of occasions. But in his discussion of this matter in Adair v McGarry Lord Justice General Clyde makes it clear that the finger printing which may be carried out at this stage is with a view to connecting the person with the crime for which he has been arrested or identifying him with the criminal who perpetrated that crime."

The Advocate depute referred to the case of Davidson v HMA 1951 J.C. 33 and to the opinion of Lord Justice Clerk Thomson at page 37 as follows:-

"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 affected by all kinds of considerations. Various kinds of influence may operate and may operate unfairly to an accused person. But so far as actual handwriting is concerned such considerations do not obtain. Handwriting is an entirely objective 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 or the clothes 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 handwriting is admissible, simply for the purpose of comparison with other handwriting does not fall to be settled by 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 no pressure it seems to me that it cannot be said that the evidence so obtained was not properly admissible for the purpose of comparison with other handwriting."

[8] He argued that the seeking of a handwriting sample was analogous to the DNA sample. In the case of Lees v Weston the court made a similar distinction as in Davidson between real evidence and a statement from the accused. At page 41 Lord Justice Clerk Ross said:-

"It is plain from the report provided by the sheriff that he based his decision on the general rule that an accused person cannot be obliged to provide evidence against himself after he has been fully committed. Although that is no doubt a sound general rule it must be borne in mind that an accused person is not required to take any positive action when providing finger impressions but has a purely passive role. As Lord Sands observed in Adair v McGarry a person whose finger prints are forcibly taken 'is entirely passive and he is not compelled to do anything requiring exercise of his own will or control of his body.' Accordingly in my opinion to require an accused person to provide finger impressions is materially different from interrogating an accused person and requiring him to answer questions. No positive action is needed of a person whose finger prints are being taken."

The Advocate depute argued that even a statement may be admissible, as in the case of Fraser v HMA 1989 SCCR 82. He then referred to the case of Jalloh v Germany (2007) 44 E.H.R.R. 667 at page 693, where paragraph 102 reads as follows:-

"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."

The Advocate depute then submitted that if the defence were to submit that the taking of samples was in contravention of the accused's Article 8 rights, he would argue that if a measure was found to be in accordance with law, then the test set out in the article was satisfied because any measure which was in accordance with law was by definition necessary in a democratic society.

[9] The Advocate depute then submitted that the case of HMA v Rudling 2010 S.C.C.R. apparently relied on by the defence, was not decided on a construction of section 18 of the 1995 Act and so was irrelevant. If he was wrong in that then he noted that the interference with the citizen in that case was of a more serious type than in the present case. It also appeared that the defence would rely on Lady Smith's decision in the case of HMA v Dimmock, High Court of Justiciary unreported, 16 March 2011. He submitted that the case had been decided on other grounds, and therefore the remarks about section 18 of the 1995 Act were obiter. He submitted that in any event they were wrong, the proper construction of the section being that for which he contended for the reasons he had given. The Advocate depute concluded by mentioning section 58 of the Criminal Justice and Licensing (Scotland) Act 2010 which amends the 1995 Act by introducing a new standard bail condition, namely that a person on bail, whenever reasonably instructed by a constable to do so, allows any sample to be taken. He referred briefly to English legislation, the Police and Criminal Evidence Act 1984, as amended as I understood him to show that a swab from inside the mouth would under that Act be classed as a 'non intimate' sample.

[10] Counsel for the defence submitted that that the question was two fold: - (1) whether the taking of the sample from the person charged amounted to lawful recovery of evidence under the power conferred by section 18(6A) and (2) whether section 18(6A) of the 1995 Act amounts to arbitrary interference with an accused person's rights. He argued that reading section 18(6A) as argued by the Crown would lead to would interference with the citizen's rights under article 8, which he used as an argument against the Crown's construction of the sub section. Counsel conceded that had the sample been taken before the accused was charged, whether he was detained or arrested, then so long as he was still in custody no issue could be taken with it. Similarly, if after charge, the police had got his informed consent no issue could be taken with it. Thus he did not seek to argue that section 18(6A) was in itself incompatible with the rights of a citizen who was detained or arrested; rather his argument was that it did not apply to a person who had been charged.

[11] Counsel considered the terms of section 18. He noted that in section 18(2), power is given to a constable to take such relevant physical data as the constable may, having regard to the circumstances of the suspected offence, reasonably consider appropriate. 'Physical data' is defined by section 18(7A) as finger prints, palm prints, and other prints or other impressions of an external part of the body and a record of the skin of an external part of the body. Thus external prints can be taken if the constable reasonably considers it appropriate that they should be taken, in light of the suspected offence. By section 18(6) the more invasive samples there listed, being hair from any external part of the body except pubic hair, material from a nail or material under a nail, and a sample of blood or other bodily fluid obtained by swabbing or rubbing from an external part of the body may be taken by a constable with the authority of an officer of rank no lower than inspector. Section 18(6A) which was added by amendment in 2003 allows a constable (or at his direction a police custody and security officer) to take a sample of saliva by means of swabbing the inside of a person's mouth. Counsel argued that the type of sample referred to in section 18(6A) was between those in section 18(2) and those in section 18(6) in a scale of intrusiveness. There is no requirement in section 18(6A) for the constable reasonably to consider it appropriate to take the sample, and there is no requirement for consent to be given by a senior officer. Thus he argued that even though the samples referred to in section 18(6A) were of a more intrusive nature than those referred to in section 18(2) there was no procedural protection in the former subsection, as there was in the latter. Section 18(6) allowed for the more intrusive samples to be taken only following permission of a senior officer being given. He argued that the lack of procedural protection could lead to a breach of article 8 rights if samples were taken after charge. The section should not be so construed. He referred to the case of Calder v Frame 2007 J.C. 117. Counsel's argument was that a person who has been charged has a status different from a person detained or detained and then arrested. He is under the protection of the court. Any statement he makes as result of questioning after charge is inadmissible. Therefore any sample taken from him at that stage is also inadmissible.

[12] In developing that argument counsel referred to the case of Wade v Robertson 1948 J.C. 117 at page 120. He argued that the case was authority for the proposition that a statement by a charged person was inadmissible unless it had been made voluntarily and not as a result of being questioned, or being encouraged to give a statement. Further, he argued that any sample taken by police at that stage would be inadmissible. Counsel argued that the comma after the word "functi" is disjunctive and that what follows is an example of things that the police cannot do once they are "functi". He submitted that the distinction between the real evidence in the cases of Davidson v HMA and Lees v Weston which was held to be admissible and the present case was that the sample was not external and it had to be taken from inside the mouth.

[13] Counsel conceded that the case of Rudling was not concerned with section 18 and therefore was of limited relevancy. He relied on the case of Dimmock in which he had appeared and made essentially the same submission as he now made. He emphasised that Lady Smith had recognised the change in status brought about by a person being charged and argued that she was correct so to do. He noted that in the Scottish Law Commission Report there was no reference at all to a person being charged; in section 18 there is no reference to a person being charged; as it is clear that Scots law affords protection to those who are charged, section 18 does not apply to them and the sample obtained is therefore inadmissible.

[14] The Advocate depute sought to reply on the issue of the protection given or not given by section 18(6A) as he had not anticipated that argument. He argued that it did not make sense to regard the lack of safeguards as compliant with the rights of persons who were detained or arrested but not with the rights of those who were charged.

Discussion

[15] 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. Therefore I hold that the evidence agreed by joint minute and the reports which flow from it are admissible. 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.

[16] 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 it is a voluntary statement. It is also clear that the cases referred to above 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 and the court in Jalloh v Germany 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. I hold that the 1995 Act has been written on the same basis. 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 either special or standard if the events happen after amendment of the Act. 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 determinative of the question before me, which relates to real evidence which exists and is obtained from the accused person by swabbing.

[17] I did not agree with the Advocate depute's submission on article 8. I preferred the approach of the defence, which involved considering whether article 8 was engaged; then considering whether there was interference; and then considering whether the interference was justified, was for a proper purpose and was proportionate. 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 paragraph 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 an 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) are in between those in section 18(2) and 18(6) in intrusiveness, and that there is no procedural protection such as requiring the consent of a senior officer. Thus it was argued that taking samples under such a subsection could not have been the intention of Parliament when the person from whom the sample was taken was under the protection of the court. I did not find that argument persuasive. In my opinion, article 8 is engaged by the taking of swabs. Thus the action will be in breach of the citizen's rights unless it is in accordance with law and is necessary in a democratic society for, in this case, the prevention of disorder or crime and the protection of the rights and freedoms of others. Counsel accepted that the action was necessary in a democratic society for the prevention of crime or disorder, and did not argue that it was not proportionate, and so the question was whether or not it was in accordance with law. In my opinion it is in accordance with law as it relates to the recovery of real evidence which is not prevented by the status of a charged person. The provision does not founder on the test of its being sufficiently clear and not arbitrary. The Act makes clear what action may be taken and is therefore precise and foreseeable in effect. While counsel for the defence is correct in submitting that the procedural safeguards for section 18(6A) are less than for sections 18(2) and 18(6) I am not persuaded that there are no safeguards. While I was not fully addressed on it, it seems to me that the constable is entitled to take samples only where there is a reason for doing so, as a person will be detained, or arrested, or both, only where there is suspicion of his having committed an offence. The section does adopt a nuanced approach, in that it allows only relatively non intrusive samples to be taken without a warrant; and so far as samples not taken externally are concerned, the mouth swab is the least intrusive. The scheme of the Act is that permission of a senior officer is needed for the more intrusive samples and a warrant is needed for the most intrusive samples.

[18] For completeness I did not accept the Advocate depute's categorisation of charging a person as arbitrary. Rather it seemed to me that 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 the safeguards are provided by other provisions of the criminal law which set out 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 that was so, as regards a person detained, and a person arrested, whether he had previously been detained or not. I did not accept his 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 commencement of detention, and the completion of the phase of investigation carried out by the police, that is, immediately after caution and charge.

[19] 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. Dimmock was a case under the Misuse of Drugs Act 1971 and while evidence was led to the effect that the accused was detained under section 14 of the 1995 Act much of the focus of the case appears to have been on the effect of a warrant issued under the 1971 Act. The court found that the police were in some degree of confusion as to their powers under the warrant. I had the advantage of being addressed by the Advocate depute and counsel on a joint minute in which they had helpfully agreed the evidence, and I had a full citation of authority.

[20] In light of the submissions I have come to the view that the minutes must be refused.