APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Carloway Lord Menzies Lord Brodie Lord Doherty	[2012] HCJAC 146 Appeal No: XC674/11   OPINION OF LADY PATON   in   NOTE OF APPEAL AGAINST CONVICTION   by   INDULIS LUKSTINS   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

Appellant: P Wheatley QC (solicitor advocate), C Tait, solicitor advocate; Capital Defence (for Inverness Legal Services)

Respondent: Shand QC, AD; Crown Agent

 

14 November 2012

[1] I agree with the Opinions of Lords Carloway and Doherty. It follows that HM Advocate v Cowie 2012 SCCR 70 is overruled. The appeal should be refused.

 

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Carloway Lord Menzies Lord Brodie Lord Doherty	[2012] HCJAC 146 Appeal No: XC674/11   OPINION OF LORD CARLOWAY   in   NOTE OF APPEAL AGAINST CONVICTION   by   INDULIS LUKSTINS   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

Appellant: P Wheatley QC (solicitor advocate), C Tait, solicitor advocate; Capital Defence (for Inverness Legal Services)

Respondent: Shand QC, AD; Crown Agent

 

14 November 2012

General

[2] The appellant was indicted to a Preliminary Hearing at Glasgow on 19 May 2011 on charges libelling, inter alia: (1) the rape (by oral penetration) of IV on 15 January 2011 in a lay-by on the A9 Perth to Inverness Road near Ralia, contrary to section 1 of the Sexual Offences (Scotland) Act 2009; and (2) the theft of her computer and related items on the same date at the Inverness Business and Retail Park.

[3] The appellant tendered a preliminary issue objecting to evidence of a DNA sample taken from him by buccal swab on 17 January 2011. The issue was argued before the High Court at Inverness on 15 June 2011. On 16 June 2011, the judge repelled the objection (HM Advocate v Lukstins 2011 SLT 167). The appellant went to trial. He was found guilty at Dundee High Court on 26 September 2011 and, on 21 October 2011, sentenced to seven years imprisonment.

 

Evidence

[4] Both the complainer and the appellant are Latvian nationals. Using the internet, the appellant, who was aged 49, managed to persuade the complainer, who was aged 21, that she had obtained employment with a Russian family in Glasgow. The complainer therefore bought a flight to Prestwick, where she was met by the appellant. When they got into his car, the appellant programmed Inverness into his SatNav and told the complainer that the family were staying there. After sundry communings, the appellant stopped in a lay-by. It was by then dark and the complainer had become afraid of the appellant, who had been acting strangely. According to the complainer, the appellant then produced a knife and raped her by penetrating her mouth with his penis.

[5] The appellant drove the appellant to the Tesco car park in Inverness, where he abandoned her, taking her lap-top computer, which she had been using for entertainment on the journey. The complainer sought assistance from security guards at Tesco. She was distressed. The police were called. The police instigated text contact between the appellant and the complainer, as a result of which he returned to the car park, where he was detained under section 14 of the Criminal Procedure (Scotland) Act 1995 on suspicion of rape. This was shortly before 5 pm on 16 January 2011. A knife was found in a door compartment of the appellant's car. The complainer's computer was recovered from a hiding place in the flat where the appellant lived.

[6] The appellant was interviewed in the early hours of the morning. His detention ended just before he was arrested shortly before 5 pm on 17 January. He was not charged until some time after 9 pm. Shortly thereafter, a buccal swab (for DNA comparison) was taken from the appellant's mouth. In taking the swab, the police purported to exercise the power conferred by section 18(6A) of the 1995 Act (infra). There was no warrant for the taking of the sample; nor was the appellant's consent sought.

[7] Mouth and facial swabs were taken from the complainer. These contained a male seminal component, which was analysed and found to match the DNA profile obtained from the buccal swab taken from the appellant.

[8] At an early stage in the preliminary procedure, there had been an agreement between Crown and defence that evidence of the appellant's interview whilst in detention would not be adduced because of perceived inadequacies in the interpretation service provided. However, although it does not appear from the trial judge's report or in her charge to the jury, it was not disputed that, in cross-examination of a police officer on behalf of the appellant during the Crown case, evidence was elicited that, in answer to caution and charge, the appellant had said: "I understand but I do not agree that it is sexual assault. She agreed". That evidence was also the subject of a joint minute lodged during the defence case. The appellant did not give evidence but the answer to caution and charge was relied upon in support of the defence of consent that had been lodged early in the proceedings and which had been read to the jury at the outset of the trial.

 

Ground of Appeal and Submission

(a)            APPELLANT

[9] It was contended for the appellant that the taking of the swab from the appellant's mouth had been unlawful. The contention was that, properly construed, section 18 (6A) of the 1995 Act (infra) did not authorise the taking of such a swab from a person after that person had been charged with an offence by the police. In this respect, the appeal founds essentially upon the decision and reasoning of the court in HM Advocate v Cowie 2012 SCCR 70 (disapproving Lukstins v HM Advocate (supra) and approving HM Advocate v Dimmick, High Court, 16 March 2011, unreported) to the effect that, whereas section 18(6A) applied to a person who has been detained or arrested, once that person had been charged, his status changed and he could no longer be required to provide a buccal swab because, on an analogy with questioning after charge, this was contrary to the right to silence and the privilege against self-incrimination. After charge, the police were functi so far as questioning was concerned (Wade v Robertson 1948 JC 117, Lord Justice-Clerk (Thomson) at 120) and the same principle should apply to the recovery of samples.

[10] Accordingly, the evidence of the appellant's DNA profile ought to have been excluded. In that event, there was insufficient evidence with which to convict the appellant and the appeal ought therefore to be allowed. Although in the original Note of Appeal it was said that the absence of the DNA comparison evidence resulted in an insufficiency regarding proof of the act of rape, this was amended to a contention that there was no corroboration of the identity of the perpetrator.

[11] It was recognised by the appellant that the earlier authorities regarded arrest and charge as contemporaneous, even if some later decisions had suggested that there could be a gap between arrest and charge (eg Johnston v HM Advocate 1993 JC 187). After charge, the legal landscape changed and a person came to be under the protection of the court. After this watershed, everything required to be carried out under the authority of the court.

[12] The appellant sought to distinguish the reasoning of the court in McLean v Dunn 2012 SCCR 369 on the basis that it was concerned with the granting of a warrant by a sheriff (because of concerns regarding the application of Cowie) after arrest and charge. At common law, the court could always grant such a warrant. It was accepted that the police were entitled, at common law, to take non-invasive samples, such as fingerprints, nail scrapings and other externally obtained matters, from persons who had been arrested (Renton & Brown: Criminal Procedure (6^th ed) para 7-21) and that such persons may have been charged. However, a warrant was required for any internal search or for any search prior to arrest (Hay v HM Advocate 1968 JC 40).

(b) CROWN

[13] In a detailed written case and argument, supplemented in oral submission, the Crown contended that Cowie had been wrongly decided. As background, it was submitted that, at common law, it was arrest and not charge which altered the status of the suspect. It was at that point that the suspect gained certain rights, such as that not to be asked questions which might involve the answers being used in evidence, but lost other rights, such as that of liberty and not to be searched or fingerprinted (Thomson Committee: Criminal Procedure in Scotland (2^nd report, 1975, Cmnd 6218) para 3.08).

[14] The Thomson Committee had identified the "difficulty" which arose as a result of the common law position that, because arrest had to be accompanied by a charge, the police could not hold a person in custody until they had enough evidence to charge him; yet once charged he could not be questioned (see the Minister of State at the Second Reading of the Criminal Justice Bill in 1980; HL Deb 15 January 1980 vol 404, cc 13-8415). This was why sub-section 2(5) of the Criminal Justice (Scotland) Act 1980 had created the new status of "detention" and allowed the police to use the same powers of search as they already had at common law after arrest (and charge) and, in addition, specifically permitted (s 2(5)(c)) fingerprinting and similar sample taking.

[15] In 1989, the Scottish Law Commission had recommended (Report on Evidence: Blood Group Tests, DNA Tests and Related Matters, Scot Law Com Report No. 120, 1989, para 2.32) that sub-section 2(5)(c) be extended to apply to arrested, as well as detained, persons so as to create uniformity. The Commission did not consider that this amounted to an extension of police powers (ibid para 2.10). The common law allowed the fingerprinting of persons who had been arrested and charged (Adair v McGarry 1933 JC 72; Namyslak v HM Advocate 1995 SLT 528 at 529-530).

[16] As enacted, sub-section 18(2) of the 1995 Act provided that the police could take fingerprints and similar external impressions from persons who had been either arrested or detained. In accordance with the Commission's further recommendation (para 2.33), sub-section 18(6) extended police powers to include other "non-intimate" sampling such as hair, nails and external swabbing. However, these all required the authority of a senior officer. The Commission were against the powers being extended to "anything which involves going inside a person's body". This recommendation had initially been accepted by Parliament (Prisoners and Criminal Proceedings (Scotland) Act 1993, section 28). However, it was rejected at the time of the 1995 Act, which included (s-s 18(6)(d)) buccal swabbing in the "non-intimate" list requiring the authority of a senior officer. The change made to section 18 by the Criminal Justice (Scotland) Act 2003 (s 55) was the removal of buccal swabbing from the list of samples requiring that authority. Thereafter, a police officer could do so, or authorise it, on his own recognisance, thus bringing buccal swabbing into line with fingerprinting (see the White Paper: "Making Scotland Safer: Improving the Criminal Justice System" para 71).

[17] The Crown advanced four fundamental propositions. First, and foremost, it had not been Parliament's intention that the statutory authority now set out in section 18 of the 1995 Act should cease to apply at the point of charge. Giving an ordinary meaning to the wording of sections 18(1) and 18(6A), the police were empowered to take mouth swabs from persons while they were detained in terms of section 14 and while they were arrested and in police custody. There was no proper basis for reading into the statutory provisions the limitation which the appellant, and the court in Cowie, suggested. The intention of Parliament had been to create an expanded version of the established common law powers of the police to search and fingerprint arrested (and detained) persons. It ought not to be presumed that Parliament had intended to alter the common law by making the point of charge one of significance (Craies on Legislation (9^th ed) para 14.17, citing Arthur v Bokenham (1708) 11 Mod 148).

[18] Secondly, in any event, the court in Cowie had been wrong to approach the question of construction on the basis that conferring a right to recover real evidence from a person after charge would be so unusual or remarkable as to require clear and specific mention. At common law, the power to recover real evidence by searching persons non-invasively arose as an incident of their arrest and continued after charge until committal to prison (Jackson v Stevenson (1897) 2 Adam 255, LJG (Robertson) at 259; Adair v McGarry 1933 JC 72, LJG (Clyde) at 78, Lord Morison at 89). Thus, fingerprinting (Adair (supra)), taking of nail scrapings (McGovern v HM Advocate 1950 JC 33), examining wounds (Forrester v HM Advocate 1952 JC 28) and taking body rubbings (Bell v Hogg 1967 JC 49) could all be carried out after charge. Charge was not a watershed in relation to the recovery of such real evidence. The common law powers had been consolidated and supplemented by statutory provisions. These provisions had not been intended to reduce the period during which such powers could be exercised. In terms of invasiveness, the taking of mouth swabs was equated with fingerprinting. On the other hand, the common law powers did not extend to invasive searches (Macphail: Evidence (rvd ed) para 25.32; Scottish Law Commission Report on Evidence (supra) para 2.10), such as the taking of blood samples (HM Advocate v Milford 1973 SLT 12) or impressions of teeth (Hay v HM Advocate 1968 JC 40).

[19] Thirdly, the court in Cowie had failed to have regard to the fact that an arrested person ought to be charged as soon as possible after his arrest (Renton & Brown (supra) para 24-48L; Carloway Review, para 5.1.7; Hume: Commentaries II, 79; Alison: Criminal Law II, 123-124; Macdonald: Criminal Law (5^th ed) 199; Kerr v Mackay (1853) 1 Irv 213, LJ-C (Hope) at 216; Chalmers v HM Advocate 1954 JC 66, LJG (Cooper) at 78; Thomson Committee (supra) para 3.07; Murdoch: Police, Stair Memorial Encyclopaedia Vol 16 (1995), para 1793; Hall v HM Advocate 1979 JC 1, LJG (Emslie) at 13; Forbes v HM Advocate 1990 JC 215, LJG (Hope) at 226). Since, at common law, the power to recover real evidence continued after charge and because arrest and charge were expected to occur at the same time, it was not in the least surprising that there had been no specific reference to the police charge in sections 13, 14 or 18 of the 1995 Act. Contrary to what was thought to be the position in Cowie, a person could not be searched unless he had been arrested and charged.

[20] Fourthly, the court in Cowie had also fallen into error when holding that taking swabs after charge would be contrary to the accused's right to silence and the privilege against self-incrimination. The recovery of real evidence did not give rise to breaches of those rights and privileges (HM Advocate v P 2012 SC (UKSC) 108, Lord Hope at para 10). A distinction fell to be drawn between statements made in response to police questioning and the recovery of real evidence which existed and could be verified independent of the will of the suspect (Davidson v HM Advocate 1951 JC 33, LJ-C (Thomson) at 37; Adair v McGarry (supra), Lord Sands at 88-89; R v Apicella [1985] Crim App Rep 295, Lawton LJ at 298). A similar distinction was drawn by the European Court of Human Rights (Saunders v United Kingdom (1997) 23 EHRR 313 at para 69; Jalloh v Germany (2007) 44 EHRR 32 at para 102). Although in Cowie, it had been submitted that once a person had been charged he was under the "protection" of the court, this was misguided. All persons were, in a sense, under that protection. It had been said that it was when a person was committed to prison pending trial that such protection arose (Smith v Ritchie & Co (1892) 20 R (J) 52, LJC (Macdonald) at 53; Stark and Smith v HM Advocate 1938 JC 170, LJG (Normand) at 174, Lord Fleming at175). However, in Hall v Associated Newspapers 1979 JC 1, the Lord Justice General (Emslie, at pp 13-14) stated that the protection applied from the point of arrest and that the law was that, from that point, a suspect could not be lawfully interrogated because of the strictures against self-incrimination (see also Johnston v HM Advocate 1993 JC 187, LJ-C (Ross) at 195).

[21] Finally, and in any event, there was sufficient evidence even without that relating to the swab and there was no realistic prospect that the jury would have reached a different verdict had the evidence been excluded.

 

Decision

[22] Section 18 of the Criminal Procedure (Scotland) Act 1995 begins by stating that it is to apply when a person has been arrested and is in custody or is detained under section 14 of the Act. Sub-section (6) provides that a police officer of the rank of inspector or above can authorise the taking of samples from external parts of the body, such as cut or plucked hair, finger or toe nails or scrapings therefrom and swabs from the body's surface. Subsection (6A) provides that:

"A constable ...may take from the inside of the person's mouth, by means of swabbing, a sample of saliva or other material".

 

The statutory provision is clear and unambiguous. It empowers the police to take a swab from the mouth of a person who has been arrested (and is in custody) or is detained. There is no basis for reading into the provision a limitation to the effect that the power ceases at the point of police charge. The incorporation of such a limitation would conflict with the clearly expressed legislative intent contained in the words used, given these their ordinary and plain meaning.

[23] If it were necessary to conduct an examination of the history of the legislation in order to discover the intention of Parliament, the same result would be reached. The provision was the culmination of a number of reforms which commenced with those proposed by the Thomson Committee (Criminal Procedure in Scotland (2^nd report) 1975, Cmnd 6218). The Committee recognised what had become a fundamental problem in the investigation of crime. This was that arrest had to be accompanied, or followed shortly thereafter, by a charge. It may perhaps be more accurate to say that, at the point of arrest, a general statement of the nature of the charge may be sufficient, but, once a suspect had arrived in a police station, he had to be charged in order for his detention at the police station to be lawful. There might be some delay in the formulation of the charge, but, if it was decided that the arrested person was to remain in custody, the charge justifying that detention had to follow with reasonable promptness.

[24] It is of critical importance to recognise this principle, which was spelled out in the locus classicus of Chalmers v HM Advocate 1954 JC 66. There, the Full Bench addressed the practice (eg in Rigg v HM Advocate 1946 JC 1) of the police avoiding formally arresting (and of necessity charging) suspects, because such a process prevented them from questioning the suspect. Instead the police had, on occasions, taken to "detaining" suspects informally on the basis that they were voluntarily "helping the police with their inquiries". In Chalmers (supra) the Lord Justice General (Cooper) stated, in unequivocal terms (p 78), that:

"...no person can be lawfully detained except after a charge has been made against him".

 

The use of the word "detained" is referable to the period in the police station after the suspect has been formally arrested, since arrest was, at that time, the only lawful method of taking a suspect into custody.

[25] The meaning of this statement is not simply that, as in the case of statutory detention, the person requires to be informed only of the general nature of the offence which he is suspected of committing. It means what it says. A person arrested must be told of the charge upon which he has been arrested and is to be detained. This was at the root of the Thomson Committee's thinking. That Committee, composed of the experts of the day in criminal law and procedure, accepted as accurate a statement (para 3.07) that:

"...the rule is that... an arrest must be accompanied by a charge, and that therefore a person may be arrested only where there is sufficient evidence to charge him".

 

This distinguishes the Scots law of arrest from that of many common law and European systems where "reasonable suspicion" alone is required for arrest and only a general indication of the nature of the charge need be given when thereafter detaining the suspect in police custody. In Scots law, it is not sufficient for the arrest of a person, as distinct from his detention under statute, that he be "reasonably suspected" of having committed a crime. There must be evidence against him sufficient for a charge. Arrest is therefore accompanied or followed by that charge, albeit that its nature may change in due course when the suspect appears in court on a petition or complaint at the instance of the procurator fiscal. It may change again with the service of an indictment at the instance of the Lord Advocate.

[26] Thus it is that, under Scots common law, arrest and charge occur at or about the same time and that a charge is required to justify a person being detained in custody in a police station after his arrest. Put another way, a suspect cannot be held in a police station at common law without being charged. Once this is understood, it becomes clear that there can be no distinction at common law, in relation to the rights of a suspect, between arrest and charge, since they are expected to happen at or about the same time.

[27] It requires also to be kept firmly in mind that the general power to search a person at common law occurs only when a person has been arrested (ie and charged). This principle of Scots law is set out by the Lord Justice General (Robertson) in Jackson v Stevenson (1897) 2 Adam 255, where he stated (at 259):

"Now, a constable is entitled to arrest, without warrant, any person seen by him committing a breach of the peace, and he may arrest on the direct information of eye-witnesses. Having arrested him, I make no doubt that the constable could search him. But it is a totally different matter to search a man in order to find evidence to determine whether you will apprehend him or not."

 

[28] The Full Bench decision in Adair v McGarry 1933 JC 72 is clear authority that the taking of fingerprints without warrant by the police after arrest and charge is permitted at common law (see p 73, findings in fact (6) and (7)). The Lord Justice General (Clyde) explained (at p 77) that, in advance of the committal of the accused to prison, it was the duty of the police to investigate:

"in order to find out whether the information they already have has such evidence behind it as will support a prima facie case against the person under arrest; for it is only in such circumstances that they are justified in asking for committal".

 

He continued by stating that, whereas:

"Every man is entitled to the enjoyment of personal liberty, ...he forfeits that right by committing crime; and, where the criminal law warrants his arrest on a criminal charge, his personal liberty is unavoidably invaded, not merely by subjecting him to detention, but also to the extent necessary to enable the police to observe and collect the real evidence (afforded by his person, his apparel, or the contents of his pockets) of his connexion with the crime and his identity with the criminal." (see also LJ-C (Alness) at 80, Lord Sands at p 88, Lord Morison at p 89).

 

[29] This analysis was adopted by the Lord Justice General (Cooper) in Forrester v HM Advocate 1952 JC 28, where it was held legitimate at common law for a police surgeon to examine a cut on the finger of a suspect who had been arrested, cautioned and charged. The Lord Justice General said (p 33):

"The task to which the attention of the police was directed, and properly directed, was the obtaining of the adminicles of evidence which might assist a jury in associating the accused with the crime with which he was charged; and such adminicles are normally found in the means of identification which the accused bears about him - on his person, in his pockets or on his clothes" (see also Namyslak v HM Advocate 1995 SLT 528 at 529-530).

 

[30] The critical points in time are, first, arrest, after which the police can search the suspect and take any non-invasive samples and, secondly, committal by the court to prison pending trial, at which time the suspect is removed from police custody and any further search of the suspect's person by the police requires a warrant. The police have no power at common law to carry out any form of search without a warrant prior to arrest and charge (although urgency might justify the admission of evidence obtained from such an unlawful action: Bell v Hogg 1967 JC 49) and no power to carry out any invasive procedures without a warrant (HM Advocate v Milford 1973 SLT 12; Hay v HM Advocate 1968 JC 40). In this analysis of the common law police powers of search, the timing of the police charge has, on its own, no significance.

[31] There is a strong argument that the same principles ought logically to apply to powers of questioning. This was certainly the thinking in Chalmers (supra) and the Thomson Committee (supra). In Johnston v HM Advocate 1993 JC 187, however, a different approach was taken. The trial judge considered (p 189) that the important point was that of charge and not arrest, because the former (and not the latter) turned the relationship from one of police and suspect to police and accused. The trial judge expressed the view that a person arrested did not require to be charged but only told of the general nature of the charge. No authority for these propositions was cited, although it may be strictly correct that only a general statement is required when referring to an arrest occurring in the street. That will not, however, suffice where there is to be prolonged post-arrest detention in police custody.

[32] The Lord Justice-Clerk (Ross) appeared to accept (p 194) that there was no absolute bar on questioning after arrest, as distinct from charge. However, therein lies the peculiarity of the case. The appellant had originally been questioned as a witness, then as a suspect and then as a person who had been arrested but had not, for reasons which are unclear, been charged. The argument presented to the court was that a person who had been arrested could not be questioned. This was undoubtedly rejected, but there is no record of an argument being presented that a person who had been arrested and was being detained in a police station had to be charged. There was also no reference to the authorities, notably Chalmers (supra), which state that a person cannot, at common law, be so detained without charge (LJG (supra) at 78; see also the Thomson Committee at para 3.07).

[33] It may be that the decision in Johnston should be regarded as somewhat anomalous. However, that is of limited practical importance now, standing the introduction of statutory regimes for questioning after both common law arrest and statutory (section 14) detention. Furthermore, contrary to the view taken in Cowie, the rule or privilege against self-incrimination has no material bearing on the issue of the recovery of real evidence which exists independent of the will of the suspect. This distinction was made by the Lord Justice-Clerk (Thomson) in Davidson v HM Advocate 1951 JC 33, where the appellant had been asked to provide handwriting samples, after he had been arrested and charged with offences which included the forging of signatures. In repelling an objection to the admission of the samples, the Lord Justice-Clerk said (p 37):

"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 consideration do not obtain. Handwriting is entirely an 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 to use as evidence without any objection or criticism".

 

The same form of reasoning is apparent in the jurisprudence of the European Court of Human Rights. Thus, in Jalloh v Germany (2007) 44 EHRR 32 the Court said (para 102):

"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" (see also Saunders v United Kingdom (1997) 23 EHRR 313 at para 69).

 

This approach was also adopted in HM Advocate v P 2012 SC (UKSC) 108 (Lord Hope at para 10). Thus, there is a clear difference between responses to police questioning and the recovery of real evidence.

[34] The generality is then that, at least in relation to the recovery of real evidence from the person of a suspect, the important stages at common law are his point of arrest and charge on the one hand and his committal to prison by the court on the other. In this respect, quantum valeat, the protection of the court (and perhaps now more important Article 6 of the Convention on Human Rights and Fundamental Freedoms) applies from at least the point of arrest and not that of any subsequent formal charge by the police or prosecuting authorities or committal by the court. That was made clear by the Lord Justice General (Emslie) in Hall v Associated Newspapers 1979 JC 1 (at 13-14; cf Smith v Ritchie & Co (1892) 20 R (J) 52, LJC (Macdonald) at 53 and Stark and Smith v HM Advocate 1938 JC 170, LJG (Normand) at 174, Lord Fleming at 175). It is consistent with the protections offered by Article 6 to persons "charged" with an offence. "Charge" has an "autonomous" meaning and will be held to have occurred at least from the point of arrest and not simply from the time of any formal charge proffered (Eckle v Germany (1982) 5 EHRR 1, Deweer v Belgium (1980) 2 EHRR 439, followed in Ambrose v Harris 2102 SC (UKSC) 53, Lord Hope at para [64]).

[35] The history of the reforms to the common law, following upon the Thomson Committee report, has been set out in the summary of the Crown submission. The first major development was the introduction, in the Criminal Justice (Scotland) Act 1980, of statutory (now section 14) detention as a measure which enabled the police to hold a person in custody for a limited period without arresting (and hence charging) him. This was designed to enable the police to question suspects, notably those against whom there was insufficient evidence to merit a charge, before arrest (and charge). The new detention provisions gave the police the same powers of "search" as applied to arrested persons at common law and expressly provided for the police to take fingerprints and similar external impressions from detainees. There was no need to include arrested persons in this latter provision because the common law power already existed to carry out non-invasive sampling on persons arrested and charged. The only formal requirement was that they be arrested and charged.

[36] The second reform was: (a) the consolidation, in the Prisoners and Criminal Proceedings (Scotland) Act 1993, of the statutory and common law powers to fingerprint and to take other external impressions from, respectively, detainees and persons arrested and in custody; and (b) the extension of these powers to include, as non-invasive procedures, hair, nails and external swab sampling, provided that the authority of a senior officer was obtained. The third change was the further extension of the powers in section 18 of the Criminal Procedure (Scotland) Act 1995 to include buccal swabs on the non-invasive list. The final reform, contained in the Criminal Justice (Scotland) Act 2003 (s 55) was the removal of such swabs from the list needing senior officer authorisation and their re-classification, in section 18(6A) of the 1995 Act, as samples capable of being taken or instructed by any police officer.

[37] In none of these reforms was any mention made of the charging of a suspect as a termination point. That is not surprising, because it was not a significant point distinct from arrest at common law. All that Parliament was doing in relation to buccal swabs was, first, classifying them as essentially non-invasive and thus to be included along with nail cutting and scraping and external swabbing and, secondly, reducing their invasive nature to being the equivalent of fingerprints. It was not intending any alteration in the common law rules about when non-invasive procedures could be carried out. It was categorising buccal swabbing as non-invasive and as a procedure so mild as to be capable of being carried out by any police officer on a person properly arrested and in custody or detained.

[38] The reasoning in Cowie (para [14]) was that section 18 did apply, as sub-section 18(1) states, to persons who had either been arrested or detained under section 14. However, it was said that the status of such a person changed once he had been charged and that, because of that, the subsequent provisions, notably sub-section 18(6A) could no longer apply. The charge, it was said, marked the point when the "authorities" had gone beyond the stage of suspicion and the carrying out of their investigative duties, and were now accusing the suspect of having committed a crime and, by implication, telling him that they were now in a position to prove his guilt. As is demonstrated by the foregoing analysis, this is not a correct understanding of the purpose of the police charge in Scots law. The police charge is to accompany arrest (and certainly any period of police custody following arrest) as a statement justifying arrest and detention. Police investigations, including powers of search and non-invasive sampling, continue after arrest and charge at least up to the point of full committal to prison. Once the limited nature and significance of the police charge is grasped, it is clear, as set out above, that the intention of Parliament in allowing sampling, including buccal swabs, after arrest was equally to allow such sampling to occur after both arrest and charge.

[39] The reasoning in Cowie also founded upon the privilege against self-incrimination applying with "full force" after charge. In that state of affairs, the court said that a suspect "should not be conscripted by his opponent to defeat himself". Reference was made to Wigmore on Evidence, Vol 8, p 31 and to a passage in Renton & Brown: Criminal Procedure (6^th ed) (para 24-49) regarding the law jealously guarding the rights of the charged prisoner. The court acknowledged that the latter passage was concerned with self-incriminating statements, yet used it as a suitable analogy when dealing with the obtaining of real evidence. Again, for the reasons given above, the legitimacy of that analogy cannot be accepted.

[40] It follows from the above that, agreeing with the Opinion of the Court delivered by Lord Hardie (at para [20]) in Maclean v Dunn 2012 SCCR 369, the decision in Cowie must be regarded as in error and must be overruled. It follows also that, agreeing with the decision of Lady Stacey at first instance (HM Advocate v Lukstins 2012 SLT 167), the appeal must be refused.

[41] Finally, it should be noted that, even if the DNA sample had been ruled inadmissible, there was still a sufficiency of evidence proving that the perpetrator was the appellant. There was, first, the evidence of identification from the complainer. This was, secondly, adequately corroborated by the appellant's statement in reply to caution and charge and by the other circumstances in the case, including his appearance at the car park in response to the texts, the finding of a knife in his car and of the complainer's computer in the flat where he lived.

 

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Carloway Lord Menzies Lord Brodie Lord Doherty	[2012] HCJAC 146 Appeal No: XC674/11   OPINION OF LORD MENZIES   in   NOTE OF APPEAL AGAINST CONVICTION   by   INDULIS LUKSTINS   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

Appellant: P Wheatley QC (solicitor advocate), C Tait, solicitor advocate; Capital Defence (for Inverness Legal Services)

Respondent: Shand QC, AD; Crown Agent

 

14 November 2012

[42] I agree with the Opinions of Lords Carloway and Doherty. For the reasons which they give, HM Advocate v Cowie 2012 SCCR 70, should be overruled, and the present appeal should be refused.

 

 

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Carloway Lord Menzies Lord Brodie Lord Doherty	[2012] HCJAC 146 Appeal No: XC674/11   OPINION OF LORD BRODIE   in   NOTE OF APPEAL AGAINST CONVICTION   by   INDULIS LUKSTINS   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

Appellant: P Wheatley QC (solicitor advocate), C Tait, solicitor advocate; Capital Defence (for Inverness Legal Services)

Respondent: Shand QC, AD; Crown Agent

 

14 November 2012

[43] I respectfully agree with the Opinions of Lords Carloway and Doherty and concur with them in concluding that the decision in HM Advocate v Cowie 2012 SCCR 70 should be overruled and that this appeal should be refused.

 

 

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Carloway Lord Menzies Lord Brodie Lord Doherty	[2012] HCJAC 146 Appeal No: XC674/11   OPINION OF LORD DOHERTY   in   NOTE OF APPEAL AGAINST CONVICTION   by   INDULIS LUKSTINS   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

Appellant: P Wheatley QC (solicitor advocate), C Tait, solicitor advocate; Capital Defence (for Inverness Legal Services)

Respondent: Shand QC, AD; Crown Agent

 

14 November 2012

Introduction

[44] I am grateful to Lord Carloway for setting out the facts, the parties' submissions, and the history of the development of the law relating to police powers to search for and recover real evidence from persons in police custody.

Construction - the ordinary meaning of the words used

[45] "The cardinal rule for the construction of legislation is that it should be construed according to the intention expressed in the language used. So the function of the court is to interpret legislation "according to the intent of them that made it"[1]

and that intent is to be deduced from the language used.[2] " (Craies on Legislation (9^th ed) paragraph 17.1.1).

 

[46] Where the meaning of a provision is clear and unambiguous the court must give effect to that interpretation. It is only in the case of lack of clarity or ambiguity that resort has to be had to other aids to construction.

[47] In my opinion sections 18(1) and 18(6A) are clear and unambiguous. Section 18(1) provides that section 18 applies to two situations: where a person has been arrested and is in custody, or where a person is detained under section 14(1). Each scenario involves the person being in police custody, in one case by virtue of his arrest, and in the other by virtue of his detention. Section 18(6A) authorises the taking of mouth swabs. On a proper construction, giving the words used their ordinary meaning, the legislative intent is clear. Power is given to take mouth swabs while a person is in police custody, whether by virtue of arrest or detention.

[48] There is nothing by way of contra-indication, in section 18 or in any other provision of the Act, which suggests that the words used ought not to be given their ordinary meaning.

[49] I am not persuaded there is any good basis for reading into section 18(6A) the limitation which the appellant suggests. No such limitation was expressed by the legislature. In my view the implication of such a limitation would conflict with the legislative intent which is clearly expressed in the words of the statute.

 

Wider approach

[50] Even if it were legitimate to take a wider approach to the construction of the relevant provisions, in my opinion the outcome would be the same.

[51] The history of statutory intervention in this area has been fully set out in the Opinion of Lord Carloway. I detect nothing in the historical development of this area of the law, or in the context of the legislation, or in the mischief (or mischiefs) to which the relevant provisions were directed, which persuades me that the construction contended for by the appellant is correct. On the contrary, such assistance as may be derived from these sources tends to support the construction contended for by the Crown.

[52] At common law an arrested person ought normally to be charged as soon as possible after his arrest (Chalmers v HM Advocate 1954 JC 66, Lord Justice General Cooper at p 78; Hall v HM Advocate 1979 JC 1, Lord Justice General Emslie at p 13; Forbes v HM Advocate 1990 JC 215, Lord Justice General Hope at p 226). Since, in general, arrest and charge were (and are) expected to go hand in hand, it is reasonable to assume that the legislature was proceeding on the basis that most persons arrested and kept in custody would also have been charged.

[53] Charge is not a point which has any real significance at common law so far as police powers to search and recover real evidence from an accused are concerned: the power to recover real evidence by searching a person non-invasively arises as an incident of arrest and continues after charge while the person remains in police custody until his committal to prison (Jackson v Stevenson (1897) 2 Adam 255, Lord Justice General Robertson at p 259; Adair v McGarry 1933 JC 72, Lord Justice General Clyde at pp 77- 78; Lees v Weston 1989 JC 35, Lord Justice Clerk Ross at pp 40-41, Lord Murray at p 43; Namyslak v HM Advocate 1995 SLT 528, Lord Justice General Hope delivering the Opinion of the Court at p 530C-D). So at common law fingerprinting (Adair v McGarry), taking of nail scrapings (McGovern v HM Advocate 1950 JC 33), examining wounds (Forrester v HM Advocate 1952 JC 28) and taking body rubbings (Bell v Hogg 1967 JC 49) could all be carried out after charge. Even in relation to the recovery of real evidence by invasive methods - where at common law a warrant is needed (Hay v HM Advocate 1968 JC 40) - charge is not a watershed.

[54] The legislation concerning police powers to recover real evidence aimed to provide a statutory restatement of existing common law powers, and the extension of police powers to permit the recovery of further types of real evidence without the need for a warrant. Parliament enacted s 18(6)(d) of the Criminal Procedure (Scotland) Act 1995 in order to confer on the police a new power to take mouth swabs. By the time of the amendment effected by the Criminal Justice (Scotland) Act 2003, section 55, the mischief in relation to the taking of mouth swabs was that the restriction requiring authorisation from a senior officer was considered to be unnecessary. Parliament wished to treat mouth swabbing as being essentially non-invasive or minimally invasive. It intended that police officers' powers to carry out that procedure be no more restricted than their powers to carry out other non-invasive or minimally invasive procedures such as fingerprinting.

[55] Where statutory provisions re-iterated powers which already existed at common law, clear provision would have been required if those statutory provisions were to be read as conferring less power on the police than they had at common law. The statutory provisions in section 18 which fall into that category contain no indication of any such legislative intention. Nor is there any indication of a legislative intention that the supplementary powers introduced by statute - such as the power to take mouth swabs - should be exercisable for a different, shorter, period than the statutory powers which re-iterated common law powers.

 

Cowie

[56] The appellant relied strongly on the decision and reasons in Cowie.

[57] In my respectful opinion the court in Cowie did not give the words used in section 18(1) and section 18(6A) their ordinary and natural meaning. It read into those provisions a limitation which conflicts with that ordinary and natural meaning.

[58] The court saw it as "significant that the status of a person who has been charged is not referred to in sections 13, 14 or 18 of the 1995 Act." (paragraph [13]). I do not consider that matter to be significant. Indeed, for the reasons already discussed, I find it unsurprising that the legislature made no reference to charge in those provisions.

[59] The court opined (para [15]) that to read the provisions in question as extending to people who had been charged would have involved an important inroad into common law principles as to the rights of accused persons. Once again, I disagree, for the reasons already given. In particular, this aspect of the court's reasoning appears to me to confer an importance upon charge which, in this context, it does not have at common law. At common law charge is not a watershed in relation to the recovery of real evidence from a person. In my respectful opinion the court overlooked the fact that arrest and charge ought to go hand in hand. It would be wrong for this court to proceed on the basis that Parliament was unaware of that fact: Parliament must be assumed to have known the law.

[60] The court also proceeded on the basis that once a person has been charged police investigation is at an end. Thus, it noted (in para [14]):

"(T)he authorities, by charging a person, have indicated to him that they have gone beyond the stage of suspicion, and the carrying out of their legitimate investigative duties, but are now accusing him of having committed an offence and, by implication, telling him that they are now in a position to prove this." (emphasis added)

 

The court seems to have accepted a submission for the appellant which was founded upon dicta of Lord Justice Clerk Thomson in Wade v Robertson 1948 JC 117 at p 120, and on the decision of Beattie v Scott 1990 JC 320. Implicit in the court's reasoning is the proposition that once a person is charged no further police investigation may take place unless authority is obtained from the court: that otherwise the police cannot seek to obtain further evidence against the accused.

[61] I do not accept that proposition. Beattie v Scott provides no support for it. There the court held that an accused could not be obliged to assist the Crown in the presentation of the evidence at his trial (by standing up in the dock to assist a witness to confirm the identification made of him). Lord Justice General Hope opined (p 323):

"No doubt a proper balance must be struck between the interests of the public on the one hand and the interests of the accused on the other, and questions of degree may arise both before and after full committal as to what may be done by way of investigation of the crime. But the stage of investigation is completed when the case comes to trial, and at that stage the interests of the accused person demand that the Crown should prove its case against him without any assistance whatever on his part."

 

Lord Wylie added (p 324):

"[A] requirement to submit to finger-printing or blood testing which arises in the preparatory stage, bears no relation to a requirement in the course of a trial 'to stand in order to make himself more available for identification'."

 

[62] In Wade Lord Justice Clerk Thomson stated:

"Once a prisoner has been taken into custody and been cautioned and charged and his answer, if any, to the caution and charge noted - after that, so far as investigating the particular charge in respect of which the man has been apprehended, the police are to all intents and circumstances functi, and they are not entitled to question him again with regard to that particular charge. It may be different if other matters arise, raising other matters of charge, but so far as the charge on which he is apprehended is concerned he is not liable to further interrogation." (emphasis added)

 

[63] It seems to me Lord Justice Clerk Thomson was saying no more than that after charge an accused is not liable to further interrogation. The passage is not authority for the proposition that after charge the police are functi vis a vis all forms of investigation in respect of the charge unless the court grants warrant authorising investigation. That would sit uneasily with authorities dealing with the general responsibilities of the police in relation to the investigation of crime (eg Smith v HM Advocate 1952 JC 66, Lord Justice Clerk Thomson at p 71), and would be at odds with authorities before and after Wade dealing with police investigations after charge. In Adair v McGarry the accused had been charged: that did not prevent the police taking his fingerprints in the course of their continuing investigations. Lord Justice General Clyde explained (at pp 77-78) that, in advance of the committal of the accused to prison, it was the duty of the police to investigate:

"in order to find out whether the information they already have has such evidence behind it as will support a prima facie case against the person under arrest; for it is only in such circumstances that they are justified in asking for committal".

 

He continued (p 78):

"Every man is entitled to the enjoyment of personal liberty, ...he forfeits that right by committing crime; and, where the criminal law warrants his arrest on a criminal charge, his personal liberty is unavoidably invaded, not merely by subjecting him to detention, but also to the extent necessary to enable the police to observe and collect the real evidence (afforded by his person, his apparel, or the contents of his pockets) of his connexion with the crime and his identity with the criminal."

 

In Forrester v HM Advocate the court held admissible the evidence of a police surgeon who had examined a suspect who had been arrested, cautioned and charged. Lord Justice General Clyde observed (p 33):

"The task to which the attention of the police was directed, and properly directed, was the obtaining of the adminicles of evidence which might assist a jury in associating the accused with the crime with which he was charged; and such adminicles are normally found in the means of identification which the accused bears about him - on his person, in his pockets or on his clothes"

 

In Davidson v HM Advocate (where Lord Justice Clerk Thomson presided) the accused had been charged: that did not render unlawful the obtaining of handwriting samples from him thereafter. In Namyslak v HM Advocate the court reaffirmed that the police were entitled to fingerprint a person who had been arrested and charged. In delivering the Opinion of the Court Lord Justice General Hope observed:

"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 that stage fingerprint 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 fingerprinting which may be carried out at this stage is with a view to connecting the person with the crime or identifying him with the criminal who perpetrated the crime."(emphasis added)

 

[64] At common law the police continue to have powers and duties of investigation after charge. They are entitled "to observe and collect the real evidence of his connexion with the crime and his identity with the criminal". They are entitled to seek to obtain "the adminicles of evidence which might assist a jury in associating the accused with the crime with which he was charged". Some of these powers of investigation continue at least until full committal (see Namyslak v HM Advocate, supra). Others - and in my opinion the powers to search for and recover real evidence from an accused fall into this category - continue while the accused is lawfully arrested and in police custody and end when the accused is liberated or is committed to prison (ie in the ordinary case, when he is committed for further examination) (Adair v McGarry, Lord Justice General Clyde at pp 77-78, Lord Justice Clerk Alness at p 79, Lord Morison at p 90).

[65] An important part of the court's justification for reading in the limitation it did was that

"for police officers to require, without warrant, or without obtaining informed consent, a person who they have charged, to provide a DNA sample by way of a swab is illegitimate as being ... contrary to the long-founded rule against self-incrimination." (paragraph [14])

 

The authorities the court relied upon relate to the prohibition on interrogation after charge, not the recovery of real evidence. Nonetheless, the court reasoned, by way of analogy, that the taking of swabs after charge would be coercing an accused to incriminate himself.

[66] That justification appears to me to be wrong in principle, and to be unsupported by authority. It extends the rule against self-incrimination beyond the bounds which have been well understood hitherto, not just in Scotland, but in most other jurisdictions where the rule applies. In my opinion the court's approach cannot be reconciled with Davidson v HM Advocate; with the Strasbourg jurisprudence (eg Saunders v United Kingdom (1997) 23 EHRR 313 at para 69 and Jalloh v Germany (2007) 44 EHRR 32 at para 102); or with dicta in cases such as Brown v Stott 2001 JC 328 and HM Advocate v P 2010 SC (UKSC) 108.

[67] In Brown v Stott Lord Justice General Rodger opined (at 344H-345A):

"The distinction between self-incriminating testimony and, for example, samples that the accused is obliged to give derives from the very nature of the right to silence and of the right not to incriminate oneself: they are designed to protect an individual from being forced to speak and to give evidence as a witness against himself. In other words they confer a "testimonial immunity". Since the taking of samples does not involve the accused in saying anything, it does not infringe these rights of an accused."

 

In HM Advocate v P Lord Hope, in a case dealing with the right not to incriminate oneself contained in Article 6 of ECHR, observed in relation to the Strasbourg jurisprudence (para 10):

"The position as regards evidence obtained from the accused which is not derived from anything that the accused said to the police at his interview is not in doubt. As the court is primarily concerned with the right to remain silent, the right not to incriminate oneself does not extend to incriminating evidence that has been obtained from him other than under reference to what he has said."

 

[68] In my opinion recovery of the mouth samples in Cowie and in the present case did not breach the accused's right not to incriminate herself/himself. The obtaining of the real evidence comprised in the saliva samples did not involve either accused being forced to speak or to give evidence as a witness against herself/ himself. In each case the police were legitimately and lawfully exercising powers to ingather adminicles of real evidence relative to the charge against the accused.

 

Johnston v HM Advocate

[69] During the hearing of the appeal brief reference was made to Johnston v HM Advocate 1993 JC 187. The appellant relied on it as an example of a case where there was a gap between arrest and charge, and to support the proposition that a person was entitled to greater protection from the court after charge than after arrest. The court was not addressed fully on these matters (and there was no reference to other decisions, such as Hay v HM Advocate 1999 SLT 867 and Van Lierop v McLeod 2000 SLT 291, where similar issues arose). As these matters were not fully argued, and resolution of them is not essential to the court's decision, I prefer to reserve my opinion on them.

 

Conclusions

[70] For the foregoing reasons I respectfully agree with Lord Carloway that Cowie was wrongly decided and should be overruled; that Lady Stacey's decision to repel the devolution issue and preliminary issue minutes was correct; and that the appeal should be refused. I also agree that there would have been a sufficiency of evidence against the appellant even if the swab evidence had been excluded.

[71] There are two aspects of Lady Stacey's Opinion where I differ from her. First, I do consider that at the material time the appellant was "a person [who] has been arrested and is in custody" in terms of s 18(1) (cf. HM Advocate v Lukstins, para. [15]). Second, like the court in Cowie, but for different reasons, I do not agree with the formulation in the final sentence of paragraph [18] of her Opinion:

"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."

 

I differ on this point because the power to take mouth swabs subsists while a person remains in police custody by virtue of his detention or his arrest (a matter Lady Stacey made clear in an earlier passage in her Opinion: see para [16] at p 171K-L); the investigative phase in relation to that matter continues until his committal to prison.