Case Comment: Public Prosecution Service of Northern Ireland v Elliott; Prosecution Service v McKee  UKSC 32
15 Monday Jul 2013
On 22nd May 2013, The Supreme Court returned to the thorny topic of unlawfully obtained evidence. The current position hasn’t changed significantly since 1955, and remains easy to summarise: as long as it’s reliable, and you didn’t torture them, we’ll take it. Regardless of its status as untouchable law, the subject is contested almost every year, and this year has been no exception. And, once again, the Supreme Court has chosen not to chip away at the doctrine.
During an investigation into theft of office materials, the appellants had their fingerprints taken at the police station. These fingerprints were subsequently matched to fingerprints taken at the scene. The Crown relied upon the match and the defendants were convicted.
The issue central to the appeals was the legal status of the machine used to take the appellants’ fingerprints. The “Livescan” device, which is widely used in both England, Ireland and further afield, is a combination of a camera, scanner and computer. It has proved popular with police forces because it allows for fingerprints to be viewed and stored digitally, allowing for easy transmission and analysis.
However, whilst widely used, the relevant legislation did not permit its use. Article 61 of the Police and Criminal Evidence (Northern Ireland) Order 1989 establishes the framework for taking a suspect’s fingerprints without consent. It is exhaustive, and between March 2007 and January 2010, article 61(8B) made it clear that electronic fingerprinting devices could only be used where the Secretary of State had approved it. This approval never occurred.
When this was realized, the defendants appealed, and the appeal proceeded by way of fresh hearing ab initio. The county court held that without approval, the fingerprint evidence was inadmissible. Therefore, the appellants succeeded, but on further appeal by the Crown, the Court of Appeal ruled against it.
The Supreme Court was faced with two legal issues:
Whether the language of the Police and Criminal Evidence (Northern Ireland) Order 1989 expressly forbids use of evidence obtained from unapproved devices.
If there was no such express limitation, did Parliament intend exclusion?
The defendants argued that the language of art 61(8B) rendered any fingerprints taken from unapproved devices inadmissible. The lack of linguistic ambiguity meant that it was unnecessary to consider the intentions of Parliament.
The Supreme Court disagreed. Lord Hughes, writing for the Court, observed that art 61(8B) was silent on the consequences of failure to use an approved device, even though the drafters were free to create express provisions outlining the consequence of non-compliance.
Furthermore, the common law was clear on the issue of unlawfully obtained evidence; it isn’t automatically inadmissible. Set against this backdrop, article 61(8B) could be read to permit a suspect to refuse a request to provide fingerprints, if the police intend to use an unapproved device. Similarly, if it became known that the police were regularly using an unapproved device, there would be no defence to an application for judicial review in which the unlawfulness of their actions would be declared and, if persisted in, no doubt prohibited. Based on this. Lord Hughes concluded that there is no need to conclude that the statute automatically rendered the unlawfully obtained evidence inadmissible.
Therefore, he rejected the submission that article 61(8B) explicitly prevented reliance on evidence unlawfully recorded by electronic devices. Instead, the court must consider Parliament’s intention. What consequences did Parliament intend?
The defendants argued that Parliament had intended total exclusion. They relied upon the same reasoning seen in Scott v Baker  1 QB 659, in which the Court considered the use of breathalysers and speed guns.
However, Lord Hughes rejected the analogy between livescan and the technology such as speed guns and breathalysers. The latter captures an action that cannot be subsequently re-measured, often the action that leads to the prosecution. Based on this, it is legitimate to expect that the device can produce reliable evidence and has been investigated and approved by the relevant authorities.
In contrast, fingerprints can be reproduced, independently re-examined and assessed. If a dispute arises, it is possible to evaluate and assess their accuracy. In the explanatory note accompanying the proposed insertion of a similar provision into PACE, the provision was justified, as it would ensure that images were of the appropriate quality and integrity.
More importantly, background evidence suggests that the provision was concerned with the need to ensure that the technology would be uniformly compatible, both domestically and internationally. There was a real concern about the technology being unable to bridge international, and even national, boundaries, and thus hamper the investigation of crime.
Based on this background information, it would be wrong to conclude that Parliament intended that a consequence of unapproved apparatus should result in exclusion. Parliament introduced the restriction in article 61(8B) in order to improve the investigative process and guarantee reliable evidence. These reasons do not justify excluding improperly obtained evidence.
They therefore dismissed the appeal.
Whilst the Supreme Court prepared their judgement, I wrote a case summary in which I posed the question, what makes this case worthy of the Supreme Court? The legal position is so well known that it can be condensed into four names: Sang, Khan, Jalloh, Gafgen. Why did this case, which simply required the application of these cases, demand such attention?
At the time, I wondered whether the court might use the case to explore the scope of the exclusionary discretion under s 76 PACE (Northern Ireland) Order 1989. s 76 is just as mysterious and just as inconsistently used as its English equivalent; s 78. Both are in desperate need of 21st Century guidance, and I hoped that the Supreme Court might have given it some thought. Alas, no such luck.
Without that, this judgement was no more than the predictable application of the traditional rule. The evidence could be analysed and scrutinised. The conclusion that art 61(8B) is intended to ensure reliable and consistent technology is a fairly persuasive one, especially when one considers both the background notes and the growth of international criminal investigations. Moreover, Lord Hughes is right. Against such a famous and accepted common law position, surely Parliament would have spelt out, with absolute clarity, its desire to depart from the traditional rule? The legal framework clearly doesn’t want the exclusion of evidence.
The problem with this area of law is that the original precept is controversial. Allowing the state to break it’s own rules to incriminate its citizens doesn’t sit right with anyone. Even America is wary of it. No one likes the use of improperly obtained evidence.
However, controversial as it might be, it’s a fairly clear-cut rule, and the subsequent legal framework is predictable and clearly consistent with it’s philosophical foundations. When that’s the case, attempting to challenge the controversial precept, which is so heavily protected by legislation and common law shields, is like kicking water up hill. You’re just not going to do it. This case, like its predecessors, and inevitable future cases, proves this. A legislative citadel is built around that controversial precept, and that means it’s not going anywhere.