Case Preview: Public Prosecution Service v McKee
22 Monday Apr 2013
On 22nd April, the Supreme Court will revisit a topic that concerns many criminal and human rights advocates; improperly obtained evidence. The case revolves around the use of fingerprint evidence that had been obtained using a device that had not been authorised for use by the Northern Ireland police. Whilst the use of improperly obtained evidence has been well discussed over the decades, it is hoped that a decision by the Supreme Court will elaborate and develop the parameters of the exclusionary discretion to exclude such evidence.
On 6th October 2007, police received reports that two males were acting suspiciously at the sight of an Aluminium and Plastic warehouse. On arrival, they discovered that the warehouse fence had been cut and it appeared that a theft had been attempted. The respondents were found in their car nearby, and denied going to the warehouse. On arrest, they were taken to the Lisburn PSNI Station and their van seized, along with other suspicious materials. Scene of Crime officers examined the items that were stacked by the damaged fence and fingerprints were recovered. The following day, the respondents had their fingerprints taken using a Livescan Fingerprinting device. Their fingerprints were examined and matched those found at the scene. This evidence was used in the prosecution’s case, and they were convicted in the Magistrates court and sentenced to 8 months.
However, their convictions were overturned at appeal, when it was accepted by the court that the evidence of their fingerprints had been obtained using a device that had not been approved of by the Secretary of State, as required by Article 61(8)(b) of PACE (Northern Ireland) Order 1989, and thus inadmissible as evidence. However, whilst acquitting the respondents, the judge stated a case for the opinion of the Court of Appeal. He asked- “Was I correct in law when I found the fingerprint comparisons inadmissible, as approval from the Secretary of State was not in place?”
Decision of the Northern Ireland Court of Appeal
The Court of Appeal’s answer was a resolute no. Whilst Higgins LJ accepted that the fingerprints had been obtained in breach of the Article 61(8)(b), he accepted the appellant’s position that this did not render the evidence immediately inadmissible. Furthermore, he concluded that based on previous case law, it would not be in the interests of justice to allow the reliable evidence to be excluded merely because of a technicality. Relying on the words of Lord Goddard CJ in Kuruma v The Queen  AC 197, Higgins LJ held that the court is only concerned with the relevance of evidence, not by how the evidence was obtained. Exclusion is at the discretion of the judge, not as a matter of law. Therefore, it had been wrong to rule the evidence as inadmissible at law.
Higgins LJ correctly stated that the English law does not consider evidence as immediately inadmissible based on the way that it was obtained. In contrast to the American system of evidence, the English court have deemed “poison fruit’ evidence as admissible, with the exception of confessions, so long as there exists a discretionary grounds upon which the evidence may be excluded. The European Court of Human Rights confirmed this approach in the controversial decision of Gäfgen v Germany, in which the majority held that admitting evidence obtained as a result of inhuman and degrading treatment did not breach article 6, so long as it was not a confession and did not reach the threshold of torture, and could be challenged at trial.
Considering this position is essentially set in stone, what makes this a case worthy of the Supreme Court? It appears to be the scope of the exclusionary discretion. Any chance of exclusion remains dependent on the defendant demonstrating that it would affect the fairness of the trial, and thus allow the judge to use his discretionary power s 76 of PACE (Northern Ireland) Order 1989. Currently, s 76 has been the subject of very little case law, and this appeal is likely to put some meat on the bones of the section. However, if the case law on s 78 is anything to go by, such meat will be of little substance and deeply unsatisfying. Lord Lane CJ’s statements in Quinn (1990) Crim LR 581 remain authoritative on s 78, the English equivalent of s 76. He stated that proceedings become unfair only when “one side is allowed to adduce relevant evidence which, for one reason or another, the other side cannot properly challenge”. Previous Irish law, although thin on the ground, appears to favour the English approach. In the few cases on s 76, the court has clearly refused to adopt a broad concept of fairness. For example, in Public Prosecution Service v Duddy  NICA 18, the Court of Appeal refused to consider s76 as a tool for punishing the prosecution or the police for failure to abide by procedural rules.
With these domestic decisions in mind, along with the the decision in Gäfgen, it seems that the use of evidence will only be seen as unfair where it is either impossible to challenge, or obtained by torture; a position that remains a concern to human rights advocates and criminal defence barristers. It only remains to be for the Supreme Court to decide in this case whether they wish to continue to cement this conclusion in English law.