APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lady Dorrian Lord Bracadale	[2016] HCJAC 104 XC6/14   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in   CROWN APPEAL UNDER SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995   by   HER MAJESTY’S ADVOCATE Appellant;   against   CHARLES MILLAR Respondent:   _____________

Appellant: I McSporran AD; the Crown Agent    

Respondent: Connor; Bilkus & Boyle, Glasgow

 

6 March 2014

Background

[1]        The respondent has been indicted on four charges.  The first two are contraventions of sections 52 and 52A of the Civic Government (Scotland) Act 1982 by having in his possession, and by taking or permitting to be taken, indecent photographs, or pseudo photographs, of children some time between 1 January 2011 and 4 May 2012, at addresses in Glasgow.  The third charge is that, between those dates and at these places on a number of occasions, he sexually assaulted a child under 13 by participating in sexual activity with her, contrary to section 20 of the Sexual Offences (Scotland) Act 2009.  It would appear that the behaviour libelled in this charge is thought by the appellant to be related to the content of the photographs on the earlier charges.  The fourth charge is that on 4 May 2012, at one of the addresses in Glasgow, the respondent attempted to destroy a mobile phone containing indecent images of children, thus attempting to pervert the course of justice.

[2]        The respondent was arrested on 4 May 2012 and kept in custody until 8 May, when he appeared upon a petition containing two charges, being the contraventions of sections 52 and 52A of the 1982 Act.  The petition was in the usual form and craved the court to grant a warrant to arrest the respondent, to detain him in a police station or other convenient place, and to bring him for examination in respect of the charges.  All of this had, of course, been done.  The petition continued by seeking a warrant to imprison the respondent in Barlinnie Prison, Glasgow:

“… therein to be detained for further examination …  Further, to grant Warrant to search the person… of the said Accused … and to secure, for the purpose of precognition and evidence all writs, evidents, and articles found therein tending to establish guilt or participation in the crime(s) foresaid”.

 

The sheriff granted the warrant, thus committing the respondent for further examination.

[3]        In the days that followed, the procurator fiscal decided that it would be helpful to have photographs taken of the respondent’s hands for comparison with the hands that appeared in the indecent photographs.  The reason for this was that medical experts had advised that such a comparison could help to establish whether the hands in the photographs were those of the respondent.  This method of investigation was essentially an alternative to the experts travelling from their offices in Dundee to the prison in Glasgow and examining the respondent’s hands themselves.  The procurator fiscal took the view that this procedure could be carried out during the period of committal for further examination under the authority of the existing warrant. 

[4]        Police officers attended upon the respondent in prison.  They had been advised by the experts of the positions in which the hands were to be photographed.  The police therefore asked the respondent to position his hands in particular ways.  The photographs were then taken.  The report of the comparison identifies certain anatomical features on the respondent’s hands, including scarring, skin pigmentation, knuckle pads, outlines and colouring; all of which are presumably permanent.  It also refers to a knuckle crease pattern, a feature which will depend upon hand positioning.

[5]        There was no specific opportunity given to the respondent to obtain legal advice prior to the photography, since the respondent’s agents were not informed of what was proposed.  There was no special warrant obtained in relation to the photographing of the hands.  In due course, on 17 May 2012, the respondent was fully committed for trial.

 

Section 71 procedure
 [6]       The respondent presented a minute, under section 71 of the Criminal Procedure (Scotland) Act 1995, objecting to evidence deriving from the photographs.  The primary contention at that time was that the respondent had been committed to prison and was thus “under the protection of the court”.  Accordingly, in the absence of a warrant authorising the procedure, the photographs had been obtained unlawfully.  The taking of photographs was, in the circumstances, an identification procedure and the court’s authority should have been sought for the procedure adopted (MacLean v Dunn 2012 SCCR 369, Cameron v Cottam 2012 SCCR 271, Lukstins v HM Advocate 2012 SCCR 787).  An analogy was drawn with participation in an identification parade (1995 Act, s 267B), of which the respondent’s agent would have received intimation.  The agent would have been allowed to make representations about the parade or other (eg VIPER) identification procedure.

[7]        In response, the Crown relied upon its common law powers and the terms of the petition warrant, albeit that it was accepted that the respondent’s solicitor would have been advised of any identification parade.  The respondent fell under the protection of the court only after full committal for trial (Namyslak v HM Advocate 1995 SLT 528).  An analogy was drawn with the taking of fingerprints, which did not require specific court authority (Adair v McGarry 1933 JC 72; Lees v Weston 1989 SCCR 177).

[8]        The sheriff expressed the view that:

“[I]t cannot be right that an accused person only forfeits his right to protection by the court once he has been fully committed for trial”.

 

Having regard to the authorities cited, the critical point, upon the sheriff’s reasoning, was that of a person’s “committal to prison”, but not necessarily his full committal.  Where the respondent had been deprived of his liberty by the court, he was entitled to the protection of the court from then on.  The procedure adopted was not akin to an identification parade or fingerprinting.  Thus a warrant was required before the photographs could be taken.  In any event, the respondent’s agent should have been contacted in order that the respondent’s rights might be protected.

 

Submissions
[9]        The Crown argued that identification procedures were competent at the stage of committal for further examination.  The sheriff had erred in distinguishing the taking of photographs from the taking of fingerprints or participation in an identification parade.  These procedures were indistinguishable, in principle, and the sheriff had given no reason for his decision to the contrary.  Further, the sheriff had fallen into error in considering that committal for further examination was the critical stage, beyond which nothing could be done without the express authority of the court.  The critical stage was full committal.  The petition warrant contained authority to search, which included any non-invasive physical examination of the respondent and the photographing of the results of any such examination. 

[10]      The respondent countered that the procedure had involved his cooperation and participation.  In effect, the Crown had been “actively creating evidence”, by arranging the respondent’s hands in precise positions, in order to match the positions of the perpetrator’s hands in the indecent photographs.  The purpose of the photographs had not been to capture the natural presentation of the respondent’s hands, but to create images that best resembled those of the hands in the indecent photographs recovered.  It was going well beyond the usual identification procedure to arrange a suspect’s hands in the most “incriminating” and “damaging” way possible, in order that they be photographed. 

[11]      It was a “dangerous step” to allow such a procedure, which involved “manipulation” of the respondent, without the safeguard of a warrant.  If the Crown were permitted to take photographs in this manner, it would amount to an unfettered right to attend on the respondent in the absence of his agent.  The difficulty was that the Crown had not invoked the available procedure for obtaining the court’s authority.  Had such an application been made, it may have been granted, but the respondent’s agent would have been advised and the respondent would have been suitably protected. 

 

Decision
[12]      Arrest (and charge) marks the stage at which the investigations of the police are formally completed, to the extent that the evidence is regarded as sufficient by them to justify a report to the procurator fiscal.  Thereafter, the police will conduct any further enquiries under the direction of the procurator fiscal.  Arrest results in the loss by the suspect, not only of his right to liberty, but also that to decline to be, for example, searched or fingerprinted (Thomson Committee: Criminal Procedure in Scotland (Second Report), Cmnd 6218, para 3.08).  After arrest, the suspect must be brought before the court.  Traditionally, this occurred immediately and without any significant period in police custody (Alison: Practice II 129-130).  Once brought before the court, the suspect was examined and the precognition of witnesses commenced in order to determine whether there was sufficient ground for committing the suspect “for farther examination” or trial (ibid 130).  Thus it was that the court itself would have carried out some investigation prior to any form of committal.

[13]      The purpose of committal for further examination was, and is, exactly that.  It is to hold the suspect pending further investigations.  In that regard the Crown, whether through the offices of the police or otherwise, have at least the same powers of recovery of evidence as they had immediately prior to that type of committal.  This is in accordance with the terms of the petition whereby, after committal for further examination, although originally the court itself would begin to collect “all the articles of evidence” calculated to throw light upon the case” (ibid 135), these powers of examination came to be delegated to the procurator fiscal under the court’s authority.  The petition warrant for committal therefore contains an application for a warrant to search the person.  That is what was granted in this case.

[14]      During the period between the committal of a suspect for further examination and his full committal for trial, the Crown are entitled to continue with their enquiries.  If that involves, for example, fingerprinting or other non-invasive procedures, then these can be carried out without the need for a special warrant (Namyslak v HM Advocate 1995 SLT 528, LJC (Hope) at 530; see Lukstins v HM Advocate 2012 SCCR 787, Lord Carloway at para [29]).  In this respect there is a clear distinction between committal for further examination and full committal (see Lees v Weston 1989 SCCR 177, LJC (Ross) at 182); since upon full committal, such enquiries must cease.  

[15]      The need for a suspect to be brought before the court at an early stage is not for the purpose of protecting any right to a fair trial, but to enable him to seek his liberation from the court.  It can be seen in domestic terms as a necessary protection which is Article 5 compliant.  Similar considerations apply in relation to an accused’s reappearance and full committal, when he can again move for bail.  The domestic regime adds an additional protection at that stage, but one which relates not to the issue of liberty but to the fairness of the proceedings.

[16]      The recovery of real evidence exists independent of the will of the suspect (Lukstins v HM Advocate (supra) para [33], following Davidson v HM Advocate 1951 JC 33, LJC (Thomson) at 37; Jalloh v Germany (2007) 44 EHRR 32 at para 102; and HM Advocate v P 2012 SC (UKSC) 108, Lord Hope at para 10).  Thus, the evidence gathering process is unconnected with the privilege against self-incrimination or the right to silence.  In the present case, the taking of photographs was merely a substitute for the personal attendance of experts at a physical examination of the respondent, the results of which would inevitably have been photographed in any event.  Such an examination could legitimately have involved manipulation of a person’s hands and fingers.  That is not an invasive procedure.

[17]      For the avoidance of doubt, the court does not accept the respondent’s assertion that the Crown intend to claim that photographs represented natural resting positions of the respondent’s hands.  On the contrary, it was a prerequisite of the exercise instructed by the Crown that the respondent’s hands be placed in the same positions as those of the perpetrator in the indecent images recovered, thereby allowing a comparison of any physical features that were apparent in those precise positions.

[18]      For similar reasons, the court is not satisfied that any unfairness arose as a result of the respondent’s agent not being advised of the taking of photographs of the respondent’s hands.  In the present case, there is no suggestion that the Crown sought to do anything that could properly have been resisted by the respondent on the advice of his agent.  Arguments advanced that there may have been a breach of the respondent’s Conventions rights based upon the so-called “protection of the court” must have, as their point of significance, the time of arrest or detention and not that of any subsequent committal (Cadder v HM Advocate 2011 SC (UKSC) 13).  Such arguments could not succeed standing the existence of well-established powers of non-invasive search after that time.

[19]      Nevertheless, the court is concerned about the Crown’s apparent lack of courtesy in failing to notify the respondent’s agent of the intention to take photographs of the respondent.  Standing the Crown’s usual practice in the carrying out of other identification procedures, there would appear to be no justification for omitting to inform the respondent’s agent of what was intended.  The Crown’s usual practice in such areas may be guided by an awareness of the importance of the perception of fairness in the conduct of investigations.  The court is entitled to expect that the Crown will normally depart from the usual standards of courtesy to suspects and their known agents only where particular urgency or other special circumstances arises.  However, for aught yet seen, no unfairness appears to have arisen as a result of the photography.  In that regard, even if the court had been inclined to sustain the objection, it would have been open to the court to grant a warrant to the Crown to take new photographs of the respondent’s hands.  Having regard to the nature of the charges and the non-invasive nature of the procedure, it is difficult to imagine any grounds upon which the court would have declined to grant such a warrant.  Thus, the respondent’s original objection to the taking of the photographs would have been rendered essentially academic.

[20]      The appeal will, accordingly, be allowed and the objection repelled.