HM Advocate v Alexander [2011] ScotHC HCJ_68 (05 July 2011)

HM Advocate v Alexander [2011] ScotHC HCJ_68 (05 July 2011)

Section 18 of the Criminal Procedure (Scotland) Act 1995, properly construed, permits the taking of DNA samples from a person who has been charged and is in lawful custody; the collection of real evidence (such as a mouth swab) is distinct from obtaining statements, and the statutory framework provides sufficient legal basis and safeguards. The taking of the DNA sample in this case was in accordance with law and did not breach Article 8 ECHR rights.

Citation
[2011] ScotHC HCJ_68
Parties
Prosecutor: Her Majesty's Advocate; Accused: Neil Fotheringham; Accused: William Edwards; Accused: David Alexander; Accused: Anthony Lowell
Jurisdiction
Scotland
Judgment Date
05 July 2011
Procedural Posture
Criminal / Preliminary Ruling on Admissibility of Evidence
Outcome
Defence minutes refused; evidence of DNA sample and related reports held admissible.
Legal Topics
Admissibility of DNA Evidence, Interpretation of Criminal Procedure (scotland) Act 1995 Section 18, Article 8 ECHR Privacy Rights, Distinction Between Real Evidence and Statements, Protection of Accused After Charge
Criminal Law Evidence Law Human Rights Law Admissibility of DNA Evidence Interpretation of Criminal Procedure (scotland) Act 1995 Section 18 Article 8 ECHR Privacy Rights Distinction Between Real Evidence and Statements Protection of Accused After Charge

Case Brief

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Parties

Her Majesty's Advocate

Prosecutor

Neil Fotheringham

Accused

William Edwards

Accused

David Alexander

Accused

Anthony Lowell

Accused

Procedural Posture

Criminal / Preliminary Ruling on Admissibility of Evidence

Legal Issues

  1. 1 Whether section 18 of the Criminal Procedure (Scotland) Act 1995 permits the taking of DNA samples from a person who has been charged
  2. 2 Whether taking a DNA mouth swab after charge breaches Article 8 ECHR rights
  3. 3 Whether real evidence (DNA sample) is admissible if taken after charge without consent or warrant

Ratio Decidendi

Section 18 of the Criminal Procedure (Scotland) Act 1995, properly construed, permits the taking of DNA samples from a person who has been charged and is in lawful custody; the collection of real evidence (such as a mouth swab) is distinct from obtaining statements, and the statutory framework provides sufficient legal basis and safeguards. The taking of the DNA sample in this case was in accordance with law and did not breach Article 8 ECHR rights.

Court Disposition

Defence minutes refused; evidence of DNA sample and related reports held admissible.

Orders

  • Minutes challenging admissibility of DNA evidence refused
  • Evidence of DNA mouth swab and related reports admitted