HM Advocate v Indulis Lukstins [2011] ScotHC HCJAC_69 (05 July 2011)

HM Advocate v Indulis Lukstins [2011] ScotHC HCJAC_69 (05 July 2011)

Section 18(6A) of the Criminal Procedure (Scotland) Act 1995 permits the taking of DNA mouth swabs from persons in custody, including after they have been charged, provided they remain lawfully in police custody prior to court appearance. The taking of such a sample is real evidence, not a statement, and is admissible. The statutory scheme is sufficiently clear, foreseeable, and provides adequate safeguards to satisfy Article 8 ECHR. There is no breach of Article 6 or 8 ECHR in admitting the evidence.

Citation
[2011] ScotHC HCJAC_69
Parties
Prosecutor: Her Majesty's Advocate; Accused: Indulis Lukstins
Jurisdiction
Scotland
Judgment Date
05 July 2011
Procedural Posture
Criminal / Preliminary Issue and Devolution Minute—admissibility of DNA Evidence
Outcome
Application to exclude DNA evidence refused; evidence admissible.
Legal Topics
Admissibility of Evidence, DNA Evidence, Article 8 ECHR, Article 6 ECHR, Interpretation of Criminal Procedure (scotland) Act 1995
Criminal Law Human Rights Law Admissibility of Evidence DNA Evidence Article 8 ECHR Article 6 ECHR Interpretation of Criminal Procedure (scotland) Act 1995

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Parties

Her Majesty's Advocate

Prosecutor

Indulis Lukstins

Accused

Procedural Posture

Criminal / Preliminary Issue and Devolution Minute—admissibility of DNA Evidence

Legal Issues

  1. 1 Whether a DNA mouth swab taken from an accused after charge is admissible under section 18(6A) of the Criminal Procedure (Scotland) Act 1995
  2. 2 Whether taking such a sample breaches Article 8 (right to private life) or Article 6 (right to fair trial) of the ECHR

Ratio Decidendi

Section 18(6A) of the Criminal Procedure (Scotland) Act 1995 permits the taking of DNA mouth swabs from persons in custody, including after they have been charged, provided they remain lawfully in police custody prior to court appearance. The taking of such a sample is real evidence, not a statement, and is admissible. The statutory scheme is sufficiently clear, foreseeable, and provides adequate safeguards to satisfy Article 8 ECHR. There is no breach of Article 6 or 8 ECHR in admitting the evidence.

Court Disposition

Application to exclude DNA evidence refused; evidence admissible.

Orders

  • Minutes refused; DNA evidence and related reports admitted.