Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 29

HCA/2015-003406/XJ

Lady Dorrian

Lord Bracadale

Lord Malcolm

OPINION OF THE COURT

delivered by LORD BRACADALE

in

BILL OF SUSPENSION

by

KYLE ELVIN MCWILLIAM

Appellant;

against

PROCURATOR FISCAL, DUMFRIES

Respondent:

Complainer:  MacIntosh, Rashid; John Pryde & Co SSC

Respondent:  Prentice QC AD; Crown Agent

18 February 2016

Introduction
[1]        On 9 September 2015, while summary proceedings were in progress, the sheriff at Dumfries granted a warrant to the police to take the fingerprints of the complainer. By this Bill the complainer sought suspension of the warrant.  On 18 February 2016 we refused to pass the Bill stating that we would give reasons in writing, which we now do. 

Preliminary question
[2]        A preliminary question arose as to whether it was competent for this court to hear the Bill or whether it was now subject to the jurisdiction of the Sheriff Appeal Court which had commenced hearing criminal cases on 22 September 2015.  We are obliged to counsel for full and detailed submissions on this issue.  We do not consider that it is necessary to rehearse them.

[3]        Section 118 of the Court Reform (Scotland) Act 2014 (the 2014 Act) makes provision for appeals to the Sheriff Appeal Court from summary criminal proceedings:

“(1) There are transferred to and vested in the Sheriff Appeal Court all the powers and jurisdiction of the High Court of Justiciary (whether under an enactment or otherwise) so far as relating to appeals from courts of summary criminal jurisdiction.

(2) Subsection (1) does not apply to the nobile officium of the High Court.

(3)Schedule 3 (which modifies the Criminal Procedure (Scotland) Act 1995 in consequence of subsection (1)) has effect.”

The provenance of section 118 of the 2014 Act is found in the Report of the Scottish Civil Courts Review which recommended the creation of the Sheriff Appeal Court:

“In criminal matters the Sheriff Appeal Court would hear all summary appeals against conviction or sentence; or both; and Crown appeals against acquittal and against sentence.” (Volume 1 paragraph 86)

The sheriff sitting as a summary criminal court is a court of summary criminal jurisdiction. The general rule is that suspension as a mode of review is competent only after the conclusion of a trial. Bills of suspension against conviction are subject to the jurisdiction of the Sheriff Appeal court; by schedule 3 para 20 of the 2014 Act section 191 of the Criminal Procedure (Scotland) Act 1995 has been amended to provide:

(1) Notwithstanding section 184(2) of this Act, a party to a summary prosecution may, where an appeal under section 175 of this Act would be incompetent or would in the circumstances be inappropriate, appeal to the Sheriff Appeal Court, by bill of suspension against a conviction or, as the case may be, by advocation against an acquittal on the ground of an alleged miscarriage of justice in the proceedings.

 (4) This section is without prejudice to any rule of law relating to bills of suspension or advocation in so far as such rule of law is not inconsistent with this section.”

[4]        To the general rule that suspension is competent only after the conclusion of a trial there is a recognised exception in respect of incidental warrants which do not form part of the case.  These include warrants to take samples or to search.  Such warrants may be suspended immediately (Morton v McLeod [1981] SCCR 159, Lord Cameron at p 164). The decision to grant such a warrant is an administrative act (Brown v Donaldson [2008] JC 83 LJC Gill at para [10]).  In granting such a warrant the sheriff is not sitting as a court.  A bill to suspend such a warrant does not constitute an appeal from a court of summary jurisdiction. Thus, it is clear that a bill to suspend a warrant of the kind granted in the present case does not come within the ambit of section 118 of the 2014 Act and is not included in the transfer of powers to the Sheriff Appeal Court.  Such bills remain subject to the supervisory jurisdiction of the High Court.

The charge
[5]        On 29 September 2014 at the Sheriff Court at Dumfries the complainer appeared from custody on a summary complaint libelling a charge which narrated that between 5 and 8 September 2014 while acting along with another he forced open a lock fast room in premises in Castle Douglas and stole quantities of money, a television and a box of cigars.

The circumstances
[6]        The complainer and his co-accused lived in a house of multiple-occupancy; each of the residents had a room of his or her own but all the residents had shared access to bathrooms, the lounge area and the kitchen.  There was a locked office which was used by the proprietor.  The proprietor normally stayed at the premises but was away for the weekend when the offence was committed.  The complainer and the co-accused were the only two residents staying in the hotel over that weekend.  When the proprietor returned he found that the door to the office had been forced.  Within the room the CCTV control unit had been damaged.  A teapot containing between £300 and £400 of coins was missing and £90 in mixed notes was missing from a glass ashtray on the desk.  A new Samsung television was also missing from the room.  The police obtained a warrant to search the rooms of the complainer and the co-accused.  Within the room of the complainer, which was unlocked, the police officers recovered the television and associated cables and wall bracket.  These items were found under the duvet on the bed.  The premises were subject to a scene of crime examination.

The police report
[7]        The advocate depute explained that when a case is reported by the police to the procurator fiscal a standard presentation report is submitted.  This sets out a summary of the case and an analysis of the evidence.  The report includes a standard heading: "Analysis of evidence /identification of accused".  In that section of the standard presentation report submitted in this case there was no reference to fingerprint evidence against the complainer. The case relied on the recovery of property in criminative circumstances.  From the standard presentation report the custody statement which was served on the complainer as an accused person was prepared.

[8]        When the complainer was arrested his fingerprints were not taken.  The advocate depute said that that was an error but also explained that evidential fingerprints were not obtained as officers were unaware that they were required.

[9]        Thus, at the stage of marking the case for prosecution there was no reference in the report to fingerprint evidence against the complainer. The Crown was prepared to proceed to trial on the basis of the existing evidence.

Procedural history
[10]      A trial diet was fixed for 20 February 2015 with an intermediate diet on 27 January 2015.  The complainer was granted bail. Prior to the trial diet the agent for the complainer arranged to have the trial diet discharged in order to accommodate a residential rehabilitation week which had been organised for the complainer in respect of his difficulties with drugs.  The trial was adjourned to 6 July 2015 with an intermediate diet on 9 June 2015. At the intermediate diet on 9 June 2015 the case was continued to the trial diet on 6 July 2015.  On that date while the complainer was present the co-accused failed to appear and a warrant was granted for her arrest.  The trial was adjourned to 24 August 2014 with an intermediate diet on 21 July 2015. On 21 July 2015 because the co-accused had not been traced the case was continued to the trial diet on 24 August 2015.  On 21 August 2015 the co-accused appeared from custody; the trial diet was accelerated and adjourned to a new trial diet on 27 November 2015 with an intermediate diet on 27 October 2015.  Thus, the first trial diet was adjourned at the request of the complainer and the second trial diet was adjourned because of the earlier failure to appear and subsequent arrest of the co-accused.

The discovery of the fingerprint evidence
[11]      On 3 August 2015 the senior procurator fiscal had a conversation with the reporting officer as a result of which on the following day the reporting officer submitted a report.  It was only at this stage that it emerged that fingerprint evidence pointing to the complainer as a perpetrator of the offence was available.  It appeared that the scenes of crime examiner who examined the locus at the time had taken lifts and had submitted these to the laboratory directly instead of following a protocol of submitting them through the forensic science “gateway”, which was the normal practice.  Use of the gateway enabled the procurator fiscal to check whether fingerprint lifts had been submitted and were being examined in the laboratory.

The warrant
[12]      As the trial diet of 24 August was approaching, when the availability of fingerprint evidence became known the Crown took the view that it was too late to do anything about the fingerprints and that the Crown would proceed to trial without that evidence.  The Crown considered that there was a sufficiency of evidence from the recovery in criminative circumstances of property in the room occupied by the complainer.  As it happened, as explained above, the trial diet was adjourned because of the arrest of the co-accused.  In the light of that the Crown sought the warrant to take the fingerprints of the complainer.  In his report the Sheriff states that he granted the warrant for four reasons: first the taking of the fingerprints was a non-invasive procedure.  The police officers already had the power to take samples of his fingerprints at the time of his detention.  Secondly, the petition for the warrant stated that it was necessary because police investigations "since the date of commencement of proceedings" had established that fingerprints found at the locked room at the locus which had been broken into were those of the complainer.  The sheriff considered that that indicated that the information relevant to the warrant application came to light after the prosecution had commenced and that the measure sought was not merely to correct an earlier failure on the part of police officers.  Thirdly, the sheriff considered that there was no prejudice to the complainer in granting the warrant.  He would be in no different position than he would have been if the fingerprints had been taken at the time of his detention by a constable using the powers under section 18.  In relation to the timescale the Sheriff noted that the trial had been adjourned on different occasions and was scheduled to take place on 27 November 2015.

Submissions
Complainer
[13]      Mr McIntosh submitted that there was insufficient evidence for the Crown to proceed in the absence of the fingerprints.  In addition, he drew attention to a statement of a police support officer, David Ferguson, which had been created on 5 December 2014 and disclosed to the defence in January 2015.  In it Mr Ferguson stated that he attended at the scene on 9 September 2014 and in the course of his examination of the scene he had taken a number of fingerprint lifts from containers which had been said to have contained the money stolen. Thus, the Crown must have known that fingerprint evidence might be available. Although there had been no reference to fingerprints in the evidence summary, it was the responsibility of the procurator fiscal to be aware of issues and to react to them.  The Sheriff was unaware that the Crown knew or ought to have known that Ferguson had taken fingerprints lifts.

[14]      During the period prior to the complainer's appearance from custody on 29 September 2014 the police would have been entitled under section 18(2) of the Criminal Procedure (Scotland) Act 1995 to take samples of the complainer’s fingerprints.  They did not do so.

[15]      In relation to prejudice there had been three trial diets set down so there was some prejudice.  There had been an inexcusable error and a one-year delay.

Crown
[16]      The advocate depute asserted that the Crown did have sufficient evidence without the fingerprint evidence and were prepared to go to trial without it.  He submitted that for whatever reason the first time that the value of the evidence of fingerprints had come to light was in August 2015.  The Sheriff had taken all the relevant factors into account.  This was a non-invasive procedure.  The Sheriff did not take into account any irrelevant factors. There was no prejudice to the complainer.

The decision
[17]      The law in relation to granting warrants such as the present is not in dispute. Where a warrant to take fingerprints is sought after proceedings have commenced it will only be granted where the circumstances are special and in exercising his discretion the sheriff requires to have regard to the whole circumstances, weighing the public interest in the investigation and suppression of crime against the interest of the accused person.  An excusable error may found special circumstances (Lees v Weston 1989 SCCR 177 LJC (Ross) at 184; Begley v Normand 1992 SCCR 230; Whyte v Ruxton 1997 SCCR 771).  Delay may be a factor to be taken into account (Glen v Kelly 1989 SCCR 352).

[18]      We accept that the Crown considered that it had a sufficiency of evidence to prosecute the complainer in the absence of fingerprint evidence.  Property removed from the office was recovered in the room of the complainer soon after the theft in circumstances in which they were apparently being concealed.  We are not persuaded that any significance attaches to the statement of Mr Ferguson:  his statement was created in December 2014 after the prosecution was underway;  and his statement does not disclose any fingerprint evidence linking the complainer to the commission of the offence.  The statement simply records that the witness took fingerprint lifts and submitted them.  We accept that the existence of the fingerprint evidence only came to the attention of the procurator fiscal in August 2015 against a background where the complainer's fingerprints had not been taken when he was detained.  Had the procurator fiscal consulted the forensic science gateway it would not have informed him in relation to the submission of the fingerprints for comparison because the scenes of crime officer had adopted an irregular approach by submitting them directly to the laboratory.  We are satisfied that the Sheriff was entitled to regard these circumstances as special.  The Sheriff exercised his discretion taking into account considerations such as the non-invasive nature of the procedure and the absence of prejudice to the complainer.  We are satisfied that he was entitled to exercise his discretion in the way that he did.

[19]      For these reasons we refused to pass the Bill.