MacLean v Procurator Fiscal, Glasgow [2012] ScotHC HCJAC_34 (19 January 2012)

MacLean v Procurator Fiscal, Glasgow [2012] ScotHC HCJAC_34 (19 January 2012)

The sheriff did not err in granting the warrant. The decision in Cowie v HMA did not preclude the sheriff from exercising discretion to grant the warrant, especially as the complainer was arrested before being charged. The need for certainty regarding the admissibility of DNA evidence, the seriousness of the offence, and the minimal intrusion of a mouth swab justified the warrant. The correct approach is to consider all circumstances, not to apply a rigid two-stage test.

Citation
[2012] ScotHC HCJAC_34
Parties
Complainer: Ryan James MacLean; Respondent: Procurator Fiscal, Glasgow
Jurisdiction
Scotland
Judgment Date
19 January 2012
Procedural Posture
Bill of Suspension / Appeal Against Grant of Warrant to Obtain DNA Sample
Outcome
Bill of Suspension refused
Legal Topics
DNA Evidence, Police Powers, Warrants, Admissibility of Evidence, Criminal Procedure
Criminal Law Evidence DNA Evidence Police Powers Warrants Admissibility of Evidence Criminal Procedure

Case Brief

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Parties

Ryan James MacLean

Complainer

Procurator Fiscal, Glasgow

Respondent

Procedural Posture

Bill of Suspension / Appeal Against Grant of Warrant to Obtain DNA Sample

Legal Issues

  1. 1 Whether the sheriff erred in granting a warrant to obtain a further DNA sample from the complainer after a previous sample was arguably obtained unlawfully
  2. 2 Whether the decision in Cowie v HMA precluded the grant of such a warrant
  3. 3 Whether a two-stage test requiring special circumstances applies to the grant of such warrants

Ratio Decidendi

The sheriff did not err in granting the warrant. The decision in Cowie v HMA did not preclude the sheriff from exercising discretion to grant the warrant, especially as the complainer was arrested before being charged. The need for certainty regarding the admissibility of DNA evidence, the seriousness of the offence, and the minimal intrusion of a mouth swab justified the warrant. The correct approach is to consider all circumstances, not to apply a rigid two-stage test.

Court Disposition

Bill of Suspension refused

Orders

  • Warrant to obtain DNA sample from complainer stands
  • No error found in sheriff's decision