Scottish High Court of Justiciary Decisons

HIGH COURT OF JUSTICIARY
	[2012] HCJ 9 OPINION of THE HONOURABLE LORD TURNBULL in causa HER MAJESTY'S ADVOCATE against WILLIAM EDWARDS & DAVID ALEXANDER _______

First accused: Edwards; Duff & Anderson

Second accused: Alexander; Latif & Jones

Crown: Macari A.D.

10 January 2012

Introduction

[1] In this case the present two accused have been indicted in the High Court along with a third co-accused on charges of breach of the peace, culpable and reckless discharge of a firearm, attempted murder by striking the complainer with an implement and shooting him and various other associated offences. The offences were said to have occurred on 14 August 2010.

[2] The procedural history of the case is as follows. The two accused against whom the present petitions are directed were first detained under section 14 of the Criminal Procedure (Scotland) Act 1995 in respect of the matters on the indictment on 16 August and 16 September 2010 respectively. Each was interviewed under tape recorded conditions at a police station on the day of detention and at the conclusion of their respective interviews each was cautioned and charged with various offences. In each case a few hours later DNA samples in the form of mouth swabs were taken along with finger print samples. In each case the samples were taken by police officers purporting to exercise the power granted by section 18 of the Criminal Procedure (Scotland) act 1995. Thereafter the accused appeared on petition, were indicted to a preliminary hearing on the 11 November 2010 and appeared at three further continued preliminary hearings between then and 2 March 2011, when a trial diet was fixed for 5 April 2011. On 26 April 2011 the trial was deserted pro loco et tempore against each accused. A further indictment was served on 14 June 2011 and the accused again appeared at a preliminary hearing on 14 July 2011. On that date a continued preliminary hearing was fixed for 10 August 2011 and at that hearing a dedicated floating trial diet for 9 January 2012 was fixed.

[3] Following on from the decision in the case of HMA v Cowie [2011] HCJAC 111, issued on 2 November 2011, the Crown concluded that the samples which had been taken by the relevant police officers in purported application of the statutory procedure in the present case had not been lawfully taken. In these circumstances petitions at the instance of the Crown were presented at common law seeking warrants from this court authorising the taking of DNA and finger print samples from each of the accused William Edwards and David Alexander.

The Present Applications

[4] These petitions first called on 14 December 2011 in the High Court at Glasgow, at which stage the applications were continued until 29 December and the accused were appointed to lodge answers, if so advised, by 22 December. As it happens answers were only intimated on behalf of the accused Alexander. Nothing was said about the competence of a judge of the High Court granting such an application in those answers. However when the case called before me in the High Court at Glasgow on 29 December 2011 Mrs Duff, appearing as counsel for the accused Edwards, intimated that she opposed the granting of the application both on the grounds of merits and competence. As I understood it the advocate depute appearing had no prior notice that an argument against the competence of granting such a warrant was to be made. In these circumstances counsel helpfully explained that she planned to argue that although it was competent for such a warrant as was sought to be granted in the Sheriff Court, the High Court did not have jurisdiction to entertain such an application. The essential reason for this was said to be that in granting such a warrant the sheriff was exercising a power which flowed from his historical function as the person responsible for investigating crime, whereas the judges of the High Court had never entertained such a function.

[5] I was aware from my own knowledge that a small number of applications of this sort had been presented to single judges of the High Court in recent weeks. As I understood it they had all been granted without any examination of the question now raised. Furthermore I also knew of many cases in which such warrants had been granted by sheriffs, such as Hay v HMA 1968 J.C. 40, HMA v Milford 1972 S.L.T. 13, Frame v Houston 1991 S.C.C.R. 436, Lees v Weston 1989 S.C.C.R. 178 and McMurtrie v Annan 1994 S.C.C.R. 692. In Frame v Houston the application was put before the sheriff even although the case had already been indicted for trial in the High Court and I was not aware of any case in which such an application had been considered or granted by a judge of the High Court prior to the recent applications. In these circumstances it seemed to me that it would be best if the Crown had an opportunity to fully consider the question of the competence of such applications as the present and that they should be in a position to make full and informed submissions on the matter now that it had been drawn into focus. For these reasons I continued consideration of the petitions until Friday 6 January. I heard submissions on the matter of the competence of granting such a warrant on that date and on Monday 10 January. On Tuesday 11 January I heard submission on the respective merits of each application.

The Competing Submissions On Competence

[6] At the adjourned hearing the advocate depute acknowledged that until the Crown's recent response to the decision in the case of HMA v Cowie,, all applications of the present sort had apparently been presented in the Sheriff Court. His submission was, though, that there was a concurrent jurisdiction between the Sheriff Court and the High Court in relation to such matters and that in an application which related to a case proceeding in the High Court it was more appropriate that it be heard before a judge of that court. No explanation was offered for the procedure which was followed in Frame v Houston.

[7] In support of his submission the advocate depute drew my attention to what was said in the second edition of Sheriff Stoddart's book on Criminal Warrants. At page 14, under the heading of "Who May Grant a Warrant", it is stated that:

"1.13 A common law warrant may be granted by any judge and his power to do so is only limited by the territorial jurisdiction which he exercises. Accordingly judges of the High Court can grant any warrant at common law for execution anywhere in Scotland, whilst sheriffs and justices of the peace enjoy a jurisdiction limited in the first instance by their sheriffdom and commission area respectively."

The advocate depute referred me to Hampson v HMA 2003 S.C.C.R. 13 as an example of a judge of the High Court granting a common law warrant and drew my attention to the terms of section 267(B) of the Criminal Procedure (Scotland) Act 1995. This section, introduced by amendment in 2007, gives a judge of the High Court power, in cases which are proceeding in that court, to make an order requiring the accused person to participate in an identification parade or other identification procedure. The advocate depute's submission was that this statutory authority to permit a judge of the High Court to make an order, in what might be thought of as an investigative exercise, pointed to the existence of a common law power to undertake such an investigative exercise. This submission was not developed any further and no analysis of the extent or historical development of the jurisdiction of the Sheriff Court or the High Court was undertaken.

[8] No authority is referred to by Sheriff Stoddart in his book for the proposition relied upon and Hampson is a case in which the Court exercised its well known power to regulate its own proceedings, in that case in relation to the manner in which witnesses might give their evidence - see paragraph 9 of the opinion of the Court. Equally, the introduction of a particular statutory power in 2007 did not seem to me to go very far in illuminating the extent of the historical common law jurisdiction possessed by a judge of the High Court. Accordingly, despite the adjournment granted, the submission for the Crown was restricted to a rather concisely stated and generally unvouched proposition.

[9] Mrs Duff, appearing for the accused Edwards, began her submissions by re-iterating her contention that an application seeking a warrant to take samples of the sort sought could not competently be granted in the High Court. Although it was a well recognised feature of the sheriff's common law jurisdiction, such a warrant was granted in light of the historical functions undertaken by the sheriff and in particular in light of the role previously played in the investigatory process. To set this historical function in context and to distinguish the powers of the sheriff from the powers of a judge of the High Court Mrs Duff took me through chapters 2 and 12 of the current edition of Renton & Brown's Criminal Procedure and to Allison's Criminal Law Volume II at pages 129, 130 and 137. Mrs Duff urged caution in simply relying on an unvouched assertion in a text book which had not sought to provide an historical analysis and pointed out that aspects of what was said by Sheriff Stoddart in the same passage might not sit too comfortably with what had been said by the Court in the case of Ashif v Dunn [2011] HCJAC 106. During the course of her submissions I canvassed with Mrs Duff the effect and meaning of various passages from Hume's Commentaries Volume II which I had encountered in my own research and the decision of the Full Bench in Hay v HMA.

[10] Appearing on behalf of the accused Alexander, Mr Latif adopted the generality of the submission presented on behalf of the co-accused, subject to one or two minor points of difference. He also reminded me, as had been noted in HMA v Cowie, that whilst police officers had a common law power to search the person of anyone lawfully arrested, and that that power extended to making physical examinations, the taking of fingerprints and to preserving the likes of palm rubbings and bite marks, there was no common law power for the recovery of DNA evidence by taking a mouth swab. Authority to undertake such a procedure could though be provided by warrant.

[11] Mr Latif drew attention to two references to underpin his submission as to which Court could grant such a warrant. In Hay the Crown's submission was restricted to powers possessed by the magistracy and that was reflected in the way in which the Court dealt with the matter, pointing out that an examination of a person without his consent could lawfully be undertaken if the police applied to "a magistrate". Mr Latif submitted that it was clear from the context of this decision and from the context in which Hume used the term that a magistrate meant a sheriff. Secondly, and in the same vein, Mr Latif drew my attention to what is said at paragraph 108 of the chapter on Criminal Procedure in Volume 6 of the Stair Memorial Encyclopaedia, where the authors deal with police powers on arrest or detention and state:

"The power of search does not extend to invasive techniques for the recovery of potential evidence from the detainee's body such as the taking of blood samples or taking impressions of his teeth. The power to carry out these particular procedures must either be found in statute, for example to obtain a blood sample where there is an allegation of drunk driving, or be granted in a specific warrant obtained from the sheriff."

[12] In reply the advocate depute responded to certain of the passages in Hume to which I had drawn attention and submitted that the stage at which the present application was presented demonstrated that it was not investigatory in nature, despite his earlier submission. It was instead an attempt by the Crown to put before the Court evidence establishing the result of an enquiry long since carried out. He pointed to the importance of the judicial function of balancing of interests which was commented upon in Hay v HMA and submitted that if a common law power of this sort lay with the sheriff then, by corollary, it could be said that it also lay with a judge of the High Court.

Discussion

[13] I was not of course concerned with the existence or extent of common law powers to carry out functions such as search or examination. I was concerned with the question of jurisdiction to grant common law warrants. It is undoubtedly the case that the office of sheriff has evolved over many many years and that in the past persons holding that office carried out functions which were quite different from those undertaken by the modern office holder. Interesting and well written accounts of the historical functions of the sheriff and of the evolution of the office can be found in many places. By the same token the High Court of Justiciary has also evolved over hundreds of years with its own functions and associated powers developing as it matured. Summaries of the history and development of each Court can be found in places such as Hume's Commentaries on the Law of Scotland, the Introduction to Scottish Legal History, published by the Stair Society in 1958 and volume 6 of the Stair Memorial Encyclopaedia of the Laws of Scotland. Works such as these make it clear that traditionally, and until at least the mid 1800s, the sheriff had responsibility for investigating crime as well as for adjudicating over certain allegations of crime. In his investigatory function the sheriff would identify culprits and order their arrest, he would examine the suspect when brought before him and he could then commit the suspect to prison whilst he personally investigated the case against him by interviewing and noting statements from the relevant witnesses. On completion of this task, if satisfied, the sheriff would commit the accused for trial and report the case to Crown Office for a decision as to which charges were to be brought and when a trial was to take place. The articles by RC and Francis Russell, Advocate published in the Journal of Jurisprudence in 1864 and 1870 (as referred to by Lord Rodger of Earlsferry at paragraph 76 of his decision in the case of Cadder v HMA) provide an interesting snap shot of the way in which the procedure for the investigation of criminal cases was rapidly changing in the later part of the nineteenth century. However, by virtue of changes, both in practice and as introduced by statute, the sheriff has not had responsibility for the investigation of criminal cases for something in the region of a century. One can see though from the examples of the reported cases that in modern times sheriffs have been asked to consider granting warrants to take samples. One can also see that this is an important function and one which has been exercised in cases of the utmost seriousness. These circumstances alone would cause me to doubt whether in fulfilling this function the sheriff is dependant upon the residual vestige of a power which he possessed in order to properly undertake an investigatory function which has for so long now been merely an historical memory.

[14] In any event the historical accounts of the differences between the functions of the sheriffs and other judicial officers are necessarily limited in their detail. The submission presented by Mrs Duff depended upon a recognition of a clear distinction between the duties of the sheriff and the functions of the Lords of Justiciary. Her contention was that a judge of the High Court does not possess the power to grant a warrant such as is sought because it is an aspect of the investigatory function, which the Lords Commissioners of Justiciary have never had any association with. This proposition does not stand up to scrutiny.

[15] An examination of volume II of Hume's Commentaries at pages 77 to 80 shows that despite the sheriff having the power to grant warrants to arrest, the Lords of Justiciary had the same power, and exercised it. At page 80 Hume talks of what is to happen when a warrant is executed. He points out that a magistrate can give an order for commitment (for trial) in the body of the warrant to arrest which he issues, if for example he is already possessed of strong grounds of belief against the prisoner, and continues by saying this:

"This, indeed, is the ordinary tenor of all warrants obtained from the Lords of Justiciary, to whose office it does not belong, to examine the prisoner, or take a precognition concerning his guilt."

However it is clear that this was not always the case. Only a little later in Hume's work, at page 83 and still under the chapter heading of "Arrest and Precognition", there are some interesting references. Under the side heading - "Of precognition of old" Hume says this:

"The entire care of conducting these enquiries, has now devolved on the Sheriffs, Justices of the Peace, and other inferior judges: A great improvement certainly of our more ancient practice, in which it was nowise uncommon for a precognition to be taken at instance of the Lord Advocate, or his deputies, before the Supreme Judges themselves, or some of their number who were afterwards to sit in the trial. And, indeed, Mackenzie, in his Observations on the Statutes, has taken notice of a letter from the King to the Court in 1683, wherein he particularly directs them to observe this practice in cases of treason, at any time when the Privy Council shall desire it."

Having set out this passage Hume goes on to give some examples of the old practice in operation and refers to a case of rape in 1679 in which the Lord Justice-General examined the parties and the witnesses and reported to the Lords of Justiciary that he had found the complaint altogether groundless and malicious, as a consequence of which the Lords then deserted the diet simpliciter. These references cast doubt on the fundamental premise which underpinned Mrs Duff's contention.

[16] Furthermore, Hume also contains references to other exercises of jurisdiction which might be thought to be similar to the present application. At page 393 and at page 278 in his supplemental notes he considers what might happen if the prosecutor wishes to rely in evidence on materials which are not in his possession but might be in the possession of third parties, or even of the panels themselves. He notes that in such a situation the prosecutor, having raised his libel, may apply by petition to the Court and obtain a deliverance against the possessor. This reference is clearly distinguished from Hume's previous references to the function of the sheriff (or Magistrate) by his use of the term "the Court". This might in any event be consistent with the view that the sheriff's historical investigatory function ended when he had completed the precognition and had committed the accused for trial.

[17] There is then clearly stated authority for the view that the Court (the Lords of Justiciary) may grant common law warrants to the prosecutor for certain purposes connected with the ingathering of evidence. A similar power is of course regularly exercised in petitions for recovery of documents or the like by accused persons. A closer examination of what happens when the sheriff exercises, what is by concession recognised as a competent common law power in granting a warrant for taking samples, may help to identify whether he is exercising some sort of unique jurisdiction.

[18] In the case of Hay v HMA a Full Bench of the court decided that it was competent to grant a warrant to have dental impressions taken from a young man who was a suspect in a murder enquiry but who had not yet been charged or apprehended. In subsequent reported cases examples can be seen of warrants to take different types of samples being granted at different stages of the proceedings. The decision in Hay has featured largely in many of these decisions. It is of interest to note that the crown's submission in support of the competence of the application in Hay had nothing to do with an historical power related to an investigatory function. At page 44 of the report it can be seen that it was this:

"There was a general power in the magistracy to grant warrants for the advancement of the course of justice".

The warrant under consideration in Hay was of course granted prior to the accused being arrested. The Full Bench held that obtaining the warrant prior to the examination rendered the examination quite legal (page 47). At page 46 the Lord Justice-General, in giving the opinion of the Court, explained the role and function of the sheriff in hearing such an application in the following way:

"But, in the third place, even before the apprehension of the accused they (the police) may be entitled to carry out a search of his premises or an examination of his person without his consent if they apply to a magistrate for a warrant for this purpose. Although the accused is not present nor legally represented at the hearing where the magistrate grants the warrant to examine or to search, the interposition of an independent judicial officer affords the basis for a fair reconciliation of the interests of the public in the suppression of crime and of the individual, who is entitled not to have the liberty of his person or his premises unduly jeopardised. A warrant of this limited kind will, however, only be granted in special circumstances. The hearing before the magistrate is by no means a formality, and he must be satisfied that the circumstances justify the taking of this unusual course, and that the warrant asked for is not too wide or oppressive. For he is the safeguard against the grant of too general a warrant."

[19] In my view the passage quoted from the opinion of the Court contradicts the argument presented on behalf of the accused in the present case. Far from exercising a power flowing from a previously held position as the head of the investigative process, it can be seen that the Court saw the sheriff as exercising an independent judicial function in which he balanced the competing wishes of those who were conducting the investigation in the public interest on the one hand and the rights of the accused on the other. It was, as described, a function which flowed from the modern, rather than the historical function of the sheriff.

[20] It was conceded at the outset that a warrant of the sort sought in the present case can competently be granted at common law. The question was by whom. Hume vouches the existence of common law powers on the part of both sheriffs and judges of the High Court to grant various warrants. In modern practice judges in each court regularly entertain and grant applications based on common law. Why then ought a judge of the High Court not be able to grant an admittedly competent type of warrant? If what matters, as I think it does, is the interposition of an independent judicial officer, rather than the ghost of some long redundant office, then the sheriff has no better jurisdictional claim to the grant of such a warrant than a judge of the High Court. It seemed to me that in the case of Hay the Crown's submission, and the Court's decision, referred to the magistracy because the question at issue was the competence of the warrant which had been granted by a sheriff. No broader question was considered. I do not read these references as excluding the jurisdiction of the High Court. Similarly, the authors of the passage in the Stair Memorial Encyclopaedia referred to by Mr Latif offer the cases of Hay and HMA v Milford as examples of such warrants being granted by sheriffs but say nothing about whether anyone else could competently conduct the same exercise. That was not the point of their discussion and I do not read their contribution as intending to do anything more. For these reasons I was satisfied that it would be competent for me to grant a warrant at common law authorising the taking of either or both of the type of samples sought in the present petitions.

[21] If a judge of the High Court can competently grant such a warrant as is sought then in a case which is proceeding in the High Court and which is case managed by a High Court judge through the preliminary hearings system, it would seem to me eminently more appropriate that such an application be made in that forum.

[22] For the sake of completeness in dealing with the question of competence I should make it plain that, as will be obvious, I found the passages in Hume and in the case of Hay to which I have referred to be of particular assistance. They have assisted me in coming to the view that a judge of the High Court does have jurisdiction to grant a common law warrant of the type sought. Although these passages were not relied upon by the Crown in the advocate depute's original submissions I canvassed them fully with defence counsel during discussion and offered both defence counsel an opportunity to reflect on the passages I mentioned and to present whatever further submissions they wished.

The Competing Submissions On The Merits Of The Applications

The Crown

[23] The advocate depute introduced his submissions on this aspect of the case by giving me a brief outline of the circumstances of the case, in order that I could see the relevance and importance of the evidence which he hoped to be in a position to introduce. He informed me that charge 3, the principal charge, involved a shooting at a Public House known as "Amigos Bar" in Hamilton. It followed on from certain individuals being refused entry and an exchange of threats and insults. A little later a Renault motor car was seen to draw up outside the premises. Three men got out. One struck the doorman with a bat or similar object and another opened fire with a handgun into the premises from the area of the doorway. It was the crown's contention that the co-accused Fotheringham was the gunman, that the accused Edwards was another who got out of the car and that the accused Alexander was the driver of the vehicle. Alexander was a person who it was said was known to use this car.

[24] Three days after the incident a Renault car was found in a garage leased by the accused Alexander's father. A handgun was also discovered in the same location. According to the advocate depute forensic examination of these items revealed findings which were of significance to the case for the Crown against both Edwards and Alexander:

1. On the front passenger door of the vehicle a fingerprint matching that of the accused Edwards was found.
2. In a taping taken from the gun a complex mix of DNA was identified which included all twenty types of DNA found in Edwards' own DNA profile.
3. On the rear view mirror of the vehicle fingerprints were found which matched those of the accused Alexander.
4. DNA recovered from the steering wheel of the vehicle matched the DNA profile of the accused Alexander.
5. From a different taping of the gun DNA was identified which contained a mixture of DNA from at least three individuals. The minor DNA profile in this mixture matched the DNA profile of the accused Alexander.

[25] In relation to the accused Edwards the advocate depute submitted that the forensic evidence outlined above constituted circumstantial evidence implicating him as being one of those involved art and part in the use of the firearm and given the very limited availability of evidence of identification, the evidence of the presence of the fingerprint was of "overwhelming significance".

[26] In relation to the accused Alexander he submitted that the DNA and fingerprint evidence recovered from the Renault car was essential for proof of the Crown's case that he was the driver and that the DNA evidence recovered from the gun was also important.

[27] Having set out this background the advocate depute moved on to explain the basis upon which his applications were made. He submitted that the questions for the Court were, firstly, whether special circumstances existed and secondly, whether the public interest in the investigation and suppression of crime outweighed the interests of the accused - Lees v Weston the opinion of the Lord Justice clerk at page 184.

Dealing with the first of these questions the advocate depute pointed out that special circumstances had been found to be present in cases concerning an administrative oversight or error on the part of the police - Lees v Weston and White v Ruxton 1997 S.C.C.R. 771. He referred me to paragraph 5.08 of Renton and Brown where the learned authors state that:

"It seems, however that the criterion of "special circumstances" can be satisfied by any intelligible explanation of the need for the warrant..."

and he drew my attention to the case of Walker v Lees 1995 S.C.C.R. 445 as an example of the wide range of circumstances in which special circumstances can be said to exist. He submitted that the police practice was understood to be legal and was a practice which would have had the support of at least a single judge of the High Court, as could be seen from the decision in HMA v Lukstins, unreported 5 July 2011. Taking these factors into account the advocate depute's submission was that the "administrative error" which had been made in the present case was not of an extreme nature and was made in good faith. Accordingly, in light of the breadth of circumstances in which special circumstances had been seen to exist in the past, and in light of the reference to an intelligible explanation in Renton and Brown, the practice followed ought to be seen as constituting special circumstances.

[28] In addressing the second stage of the test the advocate depute submitted that I should take account of all of the circumstances in the case and that the nature of the sample sought was a relevant consideration, the passive procedure and minimal extent of any invasion of the accused's bodily integrity being important features. He drew my attention to the taking of a sample of blood being described as constituting a minimal invasion of the complainer's body in the case of Morris v MacNeill 1991 S.C.C.R. 722. In all of these circumstances the advocate depute submitted that the public interest would not be served by the accused avoiding justice on the basis of what could properly be described as a technicality or, to put the matter another way, that a technicality such as this ought not to weigh too heavily against the public interest in the prosecution of very serious allegations. For these reasons he invited me to hold that special circumstances could be seen to be present and that the relevant balance came down in favour of granting the Crown's applications.

The Accused Edwards

[29] On behalf of this accused Mrs Duff began by explaining that she did not accept the characterisation which had been attached to the evidence available from forensic examination by the advocate depute in his submissions and in the body of the Crown's petition. She explained that the single fingerprint recovered in relation to this accused was found on the exterior of the front passenger door of the vehicle and could not be aged. The findings of the DNA experts, as was clear from their report, did not constitute evidence capable of implicating this accused to any extent. Although these were relevant considerations to bear in mind, Mrs Duff's principal submission was that the Crown had failed to establish the presence of anything that could properly be called special circumstances. What had been described was not an administrative error or a single mistake based on some sort of factual misunderstanding. Properly understood it was a description of a systemic failure by the police to comply with the law. Given this understanding it was quite wrong, she said, to describe such a failure to act within the law as a technicality.

[30] If it was necessary to consider the second question Mrs Duff contended that I should bear in mind in this balancing exercise the limited extent and importance of the evidence under consideration. She also submitted that the stage at which the present application came before the Court was a relevant factor, as was the length of time since the accused first appeared on petition coupled with the fact that the previous trial diet had been deserted during the last witness to be called in the Crown's case, on account of a failure to disclose relevant material to the defence. Taking account of all of these features the balance would fall in favour of refusing the Crown's application.

The Accused Alexander

[31] Mr Latif began also began his submissions by drawing attention to the Crown's characterisation of the evidence available against this accused. He told me that he did not accept the proposition in paragraph 13(b) of the Crown's petition that analysis of the DNA and fingerprint samples taken had resulted in evidence which identifies the accused as the perpetrator of the offence. The vehicle from which the fingerprints were recovered was a "family" vehicle and importantly, although not mentioned in the petition or in the advocate depute's description of the evidence, there was a qualification to be taken account of. Mr Latif informed me that when the relevant witness spoke to the Crown's DNA report in evidence at the last trial he accepted, having been shown photographs of the gun in position as it was found, that there was a real possibility of cross contamination of DNA said to have come from the accused Alexander and a further (at that time) co-accused Anthony Lowell, about whom findings also featured in the report.

[32] Mr Latif adopted the submissions advanced on behalf of the co-accused and made the point that in the case of HMA v Cowie the Court had not innovated to any extent on the law but had merely declared the law to be as it always had been. In these circumstances he said that an error as to the law, which had been present in a systemic way, could not be an excuse. Given that he understood such applications were being made in dozens of cases he said that the practice was indeed widespread.

[33] Mr Latif also advanced the submission that in the circumstances of this application the history of the case was an important consideration. He explained to me that in the trial which earlier took place the Crown asked the officers who took the DNA mouth swab from the accused Alexander if they could identify him in Court and neither could. Accordingly he explained that the case was about to close without the evidence of DNA analysis, such as it was, being linked to this accused. Influenced by this consideration Mr Latif had opposed the motion to desert made by the co-accused. Given these specialities in the circumstances of this case Mr Latif pointed out that in Frame v Houston, where the application came after service of the indictment, the Court had made it clear that no such warrant could be granted after the trial had commenced. He also drew my attention to McGlennan v Kelly 1989 J.C. 120 as an example of a case in which a sheriff's decision to refuse to grant such an application in a case alleging the crime of rape had been upheld. In that case he submitted that the late stage at which the application was made was seen to be an important and relevant feature.

Discussion

[34] It is clear from the guidance available in the various authorities cited to me that an application for a warrant to take samples of any kind from a suspect or an accused person is by no means a formality and ought not to be lightly granted. 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.

[35] Each of the two accused I am dealing with were detained under the statutory power of detention provided for by section 14 of the Criminal Procedure (Scotland) Act 1995. Each had fingerprint samples and DNA samples taken from them whilst they remained so detained but after they had been charged. The police officers taking each sample did so in purported exercise of the powers provided to them by section 18 of the same Act. The extent of the power granted by that section was recently examined in the case of HMA v Cowie where their Lordships emphasised the importance of the change in status which is brought about by the act of charging a person who has earlier been taken into custody, either as an arrested person or as a detainee. In that case at paragraph 15 it is pointed out that:

"It is that act which changes the legal landscape as regards the rights of the accused and the powers of the police."

Given the importance of the change in status brought about by the act of charge their Lordships' view (at paragraph 14) was that:

"...for police officers to require, without warrant, or without obtaining informed consent, a person they have charged, to provide a DNA sample by way of a swab is illegitimate as equally being contrary to the long-founded rule against self-incrimination."

[36] This is the background to the two petitions which were presented to me and it is I think important to note that the following statement appears in each petition, at paragraph 14 (d) and 13(d) respectively:

"said DNA sample and finger print samples were therefore unlawfully obtained."

Accordingly, regardless of what powers the police may have at common law in relation to fingerprint samples and regardless of any distinction which may fall to be drawn between the manner in which fingerprint samples and DNA swabs are taken, the applications before me proceeded upon the concession that all samples had been obtained unlawfully.

[37] It is correct to note that special circumstances such as would entitle a judge to grant a warrant to take samples have been seen to be present in a range of situations. Administrative errors have been seen as constituting special circumstances on certain occasions, as is vouched by the cases of Lees v Weston and White v Ruxton. A break down in communication leading to a misunderstanding can constitute special circumstances, as is vouched by McMurttrie v Annan and an error in the manner in which a sample was taken can have the same result, as is vouched by Frame v Houston and Begley v Normand 1992 S.C.C.R. 230. It is in this later case that reference to an intelligible explanation appears. What was provided was an intelligible explanation for the fact that adherence to a normal and lawful procedure for the obtaining of a palm print had failed to provide a sample which was sufficient for comparison. In the cases which have concerned administrative errors or mistakes certain factors can be seen to have been of importance. They include the one off or isolated nature of the particular error and the availability of an explanation for the state of affairs which has occurred. In the context of the present petitions I was given to understand that the procedure which occurred was widespread, the advocate depute referred to it as a practice. I was given no information at all as to how this practice had grown up. Some passing reference was made to the existence of guidelines for police officers concerning the use of the powers granted by section 18 of the Act but I was not told what they were or how they came to be drafted. I was not told whether any legal advice had been sought or provided in connection with the stage at which samples could lawfully be obtained by virtue of the statutory power, nor was anything said about what the legislative intent had been. I was not informed what, if any, training had been provided to the particular officers who took the samples in the present case, although I was asked to proceed on the basis that the relevant officers had acted in good faith. I assumed this meant I was being invited to proceed upon the basis that they thought they had power under the statutory provision to act as they did, and I was prepared to do this. However, given the absence of any information to inform me on the point, I was left to assume that they were either ignorant or confused about the use of an important statutory innovation without having any idea as to how this unsatisfactory state of affairs had come about.

[38] Given the Crown's concession that the original samples in the present case had been obtained unlawfully and given that, as far as I could tell from what I was told, this was a common occurrence, it did not seem to me that it could properly be said that the Crown found themselves under the necessity of applying for warrants as a consequence of an administrative error. There was no error or mistake in carrying out the procedure which was followed. A deliberate and presumably considered decision was made to charge each of the then detainees at the conclusion of each interview. A further deliberate decision was made to take samples from each thereafter. All of this seems to have been consistent with the general practice followed.

[39] What necessitated the application in each case appeared to me to be routine conduct based upon what seems to have been a systemic failure to appreciate the important change in status brought about by the act of charging the detainee. This change in the legal landscape as regards the rights of the accused and the powers of the police, as it was described in HMA v Cowie, is not a new feature of our law, nor is it one with which the police or the Crown are unfamiliar. There seemed to me to be force in the point made by Mr Latif that the Full Bench decision of Lawrie v Muir 1950 JC 19 supports the contention that in the exercise of statutory powers police officers ought to know the limits of their authority. Furthermore, the Court pointed out at paragraph 14 in HMA v Cowie that the reason why it was illegitimate to require a charged detainee to provide a DNA sample was because to do so would be contrary to the long standing rule against self-incrimination. In light of this observation it could hardly be correct to describe the conduct of the police officers in the present case as being unlawful but at the same time attempt to try and characterise the breach of law concerned as a technicality, as the advocate depute did.

[40] In these circumstances then I did not accept that the Crown's characterisation of the events which lay behind the applications for these warrants was correct. The circumstances disclosed neither an administrative error nor the occurrence of something in the nature of a technicality. Since this was how special circumstances were said to have been constituted I concluded that I would not be entitled to grant either application. Looking at the matter differently caused me to arrive at the same conclusion. If I was to put aside the Crown's characterisation and attempt to portray what had occurred for myself I would be forced to return to the description which I gave above. On the information I was given it seemed to have been routine conduct based upon a systemic failure to appreciate the important change in status brought about by the act of charging the detainee and the consequences which flowed from that change. It was not argued that conduct of this sort could constitute special circumstances. There is no authority in support of such a suggestion and it would not seem to me that it could.

[41] Despite arriving at the conclusion that special circumstances were not present in either application I went on to consider whether I would have exercised my discretion in favour of the Crown, even if I had been satisfied as to the first leg of the test. I concluded in each case that I would not have.

[42] In relation to the accused Edwards, it seemed to me that Mrs Duff was correct in what she had said about the nature and quality of the evidence available from the analysis of a DNA sample or fingerprint taken from this accused. I did not think it was accurate to describe the presence of a fingerprint on the outside of the passenger door of the Renault motor car as being of overwhelming significance. It was evidence which would establish contact between the accused and the exterior of the vehicle at some point. Depending upon any evidence as to what other contact this accused might have had with the vehicle it may have contributed to a circumstantial case against him. However defence counsel was correct to say that it was something of an overstatement to describe this piece of evidence as identifying the accused as the perpetrator of the offence.

[43] Mrs Duff's criticism of the Crown's assessment of the available DNA evidence also seemed to be well founded. She provided me with a copy of the Crown production (Prod. No. 63) which set out the findings on analysis and to which the relevant witness deponed at the previous trial. At page 4 the authors present their findings in relation to the mixed DNA profile of a complex nature which was recovered from a taping of the gun:

"Within this mixed DNA profile all the corresponding DNA types present in the DNA profile of William Edwards are present, therefore the DNA profile of William Edwards cannot be eliminated. This result does not necessarily equate to the identification of DNA from William Edwards. Due to the complex nature of this mixed profile we are unable to carry out any statistical calculation in relation to this profile."

[44] Mrs Duff was able to provide me with further information relating to the way in which the expert explained this passage in his evidence at the previous trial. From what she told me it was clear that he was not suggesting that this finding constituted evidence of contact between Edwards and the gun. It was, as stated, that his profile could not be excluded. The advocate depute contended that this evidence constituted circumstantial evidence implicating this accused. When pressed he maintained that the fact that Edwards could not be excluded by scientific evidence was an adminicle which the crown could rely on as supporting their case against this accused. It seemed to me doubtful that this evidence could have any probative value. Any value that it could possibly have is less than in the Crown's initial submission and it certainly does not constitute evidence which identifies the accused as the perpetrator, as averred in paragraph 14(b) of the petition.

[45] It also seemed to me that it was right to consider the whole circumstances, including the history of the case. This accused first appeared on petition in August of 2010. He went to trial and those proceedings were deserted in the circumstances described above. In Frame v Houston importance was attached to the start of the trial as the point beyond which no such warrant could properly be granted. That decision does not necessarily preclude the granting of a warrant before the commencement of a second trial but it is correct to observe that there is no reported example of such an occurrence. It is also correct to say that the earlier running of a trial, to the last crown witness, is a feature which contributes in an assessment of where the balance ought to be struck in the present case.

[46] In relation to the accused Alexander, Mr Latif's account of what the evidence available from DNA analysis came to in the previous trial was not disputed. The fact that this accused was known to use the car also impacted on the value of the finding of his finger prints and DNA from within it. This accused first appeared on petition in September of 2010 and the same considerations concerning the case history applied to him. Two further aspects of the previous trial also relevantly impacted in his case. On Mr Latif's account of the evidence there was no link between the sample analysed and this accused. No submissions were made on this point by the advocate depute in this application. Equally, the previous trial was deserted against this accused's wishes and despite opposition on his behalf. The desertion was necessary as a consequence of a failure to disclose important information for which the Crown, or at least the police, were responsible and the Crown's opposition to the motion had been restricted to a submission that the Court should desert pro loco et tempore rather than simpliciter.

[47] I was of course well aware of the serious nature of the charges brought in the present case. It was obvious that there was a strong public interest in bringing the perpetrators to justice. I also appreciated that taking fingerprints could be thought of as a passive procedure and that taking mouth swabs involved only a very limited intrusion into the bodily integrity of the individual concerned. On the other hand the particular applications before me came at a very late stage in the history of the proceedings, later than in any other reported decision. The importance of the evidence which would become available if I granted the applications was not the same as can be the case when evidence is led of a comparison with finger prints or DNA profiles recovered at the scene of a crime. In the case of the accused Alexander at least it could be said that if I was to grant the application the Crown would secure an advantage over him which they would not have had at the previous trial.

In Wilson v Milne 1975 S.L.T. (Notes) 26 @ page 27 Lord Justice General Emslie gave a helpful indication of how the exercise of discretion ought to be approached in an application of this sort when he said:

"It is equally clear, however, that such a warrant ought not to be lightly granted and it may safely be said ought only to be granted where the circumstances are special and where the granting of the warrant will not disturb the delicate balance which must be maintained between the public interest and the interest of the accused."

[48] In my view, given the various features of this case which I have set out, that delicate balance, as it was described by the Lord Justice General, would be disturbed by granting either of the warrants sought and would be disturbed to an extent which impacted on the interests of the accused to an unacceptable extent. In arriving at that view I took account of the nature of the offences, the public interest in the prosecution of serious crime, the circumstances in which it became necessary to apply for the warrants sought, the stage of the proceedings reached, the quality of the evidence sought to be introduced and the legitimate entitlement of the accused to oppose such applications. In light of the interconnection of all of these features, as I stated above, I would not have exercised my discretion in favour of granting these applications, even if I had been of the view that it would have been open on the explanation provided to do so.