Public Prosecution Service v McKee (Northern Ireland) [2013] UKSC 32

Fingerprints taken by an unapproved electronic 'Livescan' device during a period when Northern Ireland law required Secretary of State approval were held admissible. The Supreme Court found Parliament had not intended inadmissibility as the consequence of non-approval, and dismissed the defendants' appeal.

Facts

Article 61(8B) of the Police and Criminal Evidence (Northern Ireland) Order 1989 was in force between 1 March 2007 and 12 January 2010. It provided that where fingerprints are taken electronically, they must be taken only in such manner, and using such devices, as the Secretary of State has approved. By oversight, no device was approved until 29 March 2009. For about two years the requirement was therefore in force, but no device had been approved. The equivalent English provision, section 61(8A) of the Police and Criminal Evidence Act 1984, was never brought into force. Both provisions were repealed as redundant by the Policing and Crime Act 2009.

The two appellants, McKee and Elliott, were charged with the theft of building materials on 6 October 2007. They were found nearby in a van and denied involvement. After their arrest, their control fingerprints were taken at the police station using ‘Livescan’, an electronic camera, scanner and computer system in general use in Northern Ireland from 2006 and widely used elsewhere. A print on the packaging of the stolen materials matched Elliott’s left thumb. Both were convicted in the magistrates’ court.

Once the lack of approval came to light, the appellants appealed to the County Court, where the appeal proceeded as a fresh hearing. The County Court judge upheld a preliminary objection that the comparison evidence was inadmissible. On the Crown’s appeal by case stated, the Court of Appeal ruled the other way. The appellants appealed to the Supreme Court.

Issues

The issue was what the statutory consequences were where a defendant’s fingerprints had been taken by an electronic device requiring approval under article 61(8B) when no such approval had been given. In particular, the court had to decide whether evidence using control fingerprints taken in this way was inadmissible in later court proceedings.

Arguments

For the appellants, Mr McMahon QC’s principal submission was that the wording of article 61(8B) unequivocally rendered fingerprints taken by an unapproved device a nullity. On his case, no inquiry into Parliament’s intended consequences was needed, because there was no ambiguity. He argued that any other conclusion would leave article 61(8B) a dead letter. He also relied on the established rule that breath test results are inadmissible unless the device is approved, beginning with Scott v Baker [1969] 1 QB 659. In addition, he pointed to an explanatory note to the uncommenced English provision, which linked type approval to images of appropriate quality and integrity for evidential purposes.

Judgment

Lord Hughes gave the sole judgment, with which Lord Neuberger, Lady Hale, Lord Mance and Lord Kerr agreed.

The statute is silent on consequences

Lord Hughes observed that article 61(8B) says nothing about the consequences of failing to use an approved device. This contrasts with statutes that expressly make evidence inadmissible unless an approved device is used. Examples include section 20(4) of the Road Traffic Offenders Act 1988 (speed guns), its Northern Ireland equivalent, and the noise meter provisions.

Common law background

The legislation was enacted against the established common law rule that unlawfully obtained evidence is not automatically inadmissible. The court cited Kuruma v The Queen [1955] AC 197, R v Sang [1980] AC 402, R v Khan [1997] AC 558 and Fox v Chief Constable of Gwent [1986] AC 281. That rule applies equally to evidence created by an unlawful process. Inadmissibility therefore could not simply follow from the existence of the approval requirement.

Article 61(8B) not a dead letter

Lord Hughes rejected the argument that the provision would otherwise have no purpose. A suspect, or more realistically his solicitor, could refuse to give prints on an unapproved device without committing the offence of obstruction. Regular police use of an unapproved device could also be challenged by judicial review. In his words:

There is no need for the additional consequence of inadmissibility of evidence in order to give content to the statute.

The Soneji approach

The correct inquiry was the one explained by Lord Steyn in R v Soneji [2005] UKHL 49; [2006] 1 AC 340. The rigid mandatory/directory distinction has been abandoned in favour of asking whether Parliament can fairly be taken to have intended total invalidity. That approach can still produce invalidity, as in R v Clarke and McDaid [2008] UKHL 8; [2008] 1 WLR 338, where an unsigned indictment invalidated the trial.

Breath tests and speed guns distinguished

Lord Hughes accepted that breath test results are inadmissible unless the device is approved. However, he held that breath test and speed gun devices measure a snapshot of activity that cannot later be re-measured, and the snapshot is often itself the offence. Fingerprints are different:

The control fingerprints taken from the appellants in the police station were not snapshots.

Prints can be reproduced at any time and checked independently. In this case there was no challenge to the accuracy of Elliott’s control prints. The scene print matched in 45 particulars, and there was no reliance on expert opinion.

Legislative history

Despite the explanatory note, the wider background material showed that type approval was aimed mainly at reliable technology, compatibility between forces and uniform search systems, rather than protecting individuals from inaccurate evidence. The successful use of Livescan without approval in England and Wales contributed to the 2009 repeal. Nothing suggested Parliament intended exclusion of evidence.

Consequences of exclusion

Such a consequence would, it is clear, be unnecessary and inappropriate. It is unnecessary because a reading of control fingerprints can always be checked subsequently. It is inappropriate because to exclude such evidence would deprive courts of reliable and relevant material.

Exclusion would produce a windfall for offenders, since fresh prints could not be compelled once the person was no longer detained. It would also prevent defendants from relying on other people’s prints to show that someone else was responsible.

Later legislation

The prospective destruction regime under the Protection of Freedoms Act 2012 and the Criminal Justice (Northern Ireland) Act 2013 expressly makes data that must be destroyed inadmissible. This was consistent with the court’s construction: where inadmissibility is intended, express provision is made.

Lord Hughes concluded:

For these reasons it is clear that the correct conclusion is that Parliament did not intend, by enacting article 61(8B), that the consequence of an absence of approval should be to render inadmissible any fingerprints produced electronically.

Implications

The decision applies the Soneji approach. Where a statute imposes a procedural requirement but is silent on the consequences of breach, the question is what Parliament can fairly be taken to have intended. Inadmissibility does not follow automatically, particularly given the common law rule that relevant evidence is admissible even if unlawfully obtained.

The court distinguished approval requirements for devices measuring unrepeatable events, such as breath tests and speed guns, from devices recording reproducible characteristics, such as fingerprints. Its reasoning relied heavily on the fact that fingerprint evidence can be independently verified.

In practical terms, the ruling protects prosecutions in Northern Ireland that depended on Livescan prints taken between March 2007 and March 2009. Its direct scope is limited, because the approval requirement has since been repealed. The court noted that a suspect could lawfully have refused to provide prints on an unapproved device, and that judicial review would have been available. It also did not displace the separate discretion to exclude evidence for unfairness under article 76 of the Northern Ireland Order, which it mentioned only in passing. The case is a useful illustration of how courts infer the consequences of statutory non-compliance where Parliament has not spelled them out.

Verdict: Appeal dismissed. The Supreme Court unanimously held that Parliament did not intend the absence of approval under article 61(8B) to make electronically taken fingerprints inadmissible, and upheld the Court of Appeal’s decision that the evidence of Elliott’s control fingerprints was admissible.

Source: Public Prosecution Service v McKee (Northern Ireland) [2013] UKSC 32