Kyle Elvin McWilliam v. Procurator Fiscal, Dumfries [2016] HCJAC 29

Bill of suspension:- On 9 September 2015 a sheriff at Dumfries granted a warrant to the police to take the fingerprints of the complainer in relation to ongoing summary proceedings. Here the complainer sought suspension of that warrant. In relation to the issue of whether the bill was, by virtue of section 118 of the Court Reform (Scotland) Act 2014, subject to the jurisdiction of the Sheriff Appeal Court which had commenced hearing criminal cases on 22 September 2015, the court considered that a bill to suspend such a warrant does not constitute an appeal from a court of summary jurisdiction and such bills remain subject to the supervisory jurisdiction of the High Court. On 29 September 2014, at Dumfries Sheriff Court, the complainer had appeared from custody in relation to a charge of theft by opening a lockfast place. A number of the stolen items were recovered from under the duvet on the complainer’s bed. The locus had been examined for fingerprints. In relation to the circumstances of the granting of the warrant there had been no reference in the police report submitted to the procurator fiscal of any fingerprint evidence against the complainer. When the complainer was arrested his fingerprints were not taken. Here it was submitted on behalf of the Crown that that was an error but also that evidential fingerprints were not obtained as the officers did not think that they were necessary and the Crown was prepared to proceed to trial on the basis of the existing available evidence. There followed procedure in the case including two adjournments of the trial diet, the first was adjourned at the request of the complainer and the second was adjourned because of an earlier failure to appear and subsequent arrest of the co-accused. In August 2015 it transpired that fingerprint evidence implicating the complainer as the perpetrator of the offence was available. Thereafter the Crown sought a warrant for the taking of fingerprints which was granted by the sheriff for four reasons:- (1) the taking of the fingerprints was a non-invasive procedure and the police officers already had the power to take samples of his fingerprints at the time of his detention; (2) the petition for the warrant stated that it was necessary because police investigations "since the date of commencement of proceedings" had established that fingerprints found at the locked room at the locus which had been broken into were those of the complainer in other words the sheriff considered that the information came to light after the prosecution had commenced; (3) the sheriff considered that there was no prejudice to the complainer in granting the warrant as the complainer would be in no different position had the fingerprints been taken at the time of his detention; and (4) the trial had been adjourned on different occasions and was scheduled to take place on 27 November 2015. Here on behalf of the complainer it was submitted that there was insufficient evidence for the Crown to proceed in the absence of the fingerprints and that the police were aware of the taking of fingerprint lifts from various items from the very outset and that fingerprint evidence might be available and the sheriff had been unaware of the taking of lifts at that early stage. It was further submitted that in relation to the issue of prejudice the upcoming trial diet was the third one and this inexcusable error had resulted in a one year delay. On behalf of the Crown it was submitted that the Crown did have sufficient evidence without the fingerprint evidence and had been prepared to go to trial without it and it had only been in August 2015 that the fingerprint evidence came to light. In relation to the sheriff’s decision, he had taken all of the relevant factors into account and there was no prejudice to the complainer. Here the court refused the bill and considered that the circumstances were sufficiently special to allow the sheriff to exercise his discretion in granting the warrant. The court considered that the sheriff had applied the correct test in that he had regard to the whole circumstances and had weighed the public interest in the investigation and prosecution of crime against the interest of the accused person. The court considered that there was a sufficiency of evidence in the absence of the fingerprint evidence and that the non-invasive nature of the procedure along with the absence of prejudice to the complainer entitled the sheriff to hold the circumstances as special.