New Judgment: Public Prosecution Service of Northern Ireland v Elliott; Prosecution Service v McKee  UKSC 32
22 Wednesday May 2013
On appeal from:  NICA 61.
The appellants challenged the use of fingerprint evidence taken from them by an electronic device, the use of which required legislation to be approved by the Secretary of State. Such approval had not been given at the time due to an oversight. This appeal concerned the statutory consequences of this in terms of the Police and Criminal Evidence (Northern Ireland) Order 1989, art 61, and also whether the fingerprint evidence was admissible at the appellants’ trial.
The Supreme Court dismissed the appeal. The background material to the legislation showed that the purpose of the requirement for device approval was not principally the protection of the individual against the risk of conviction on inaccurate evidence.
There is a well understood common law rule that evidence which has been obtained unlawfully does not automatically become inadmissible, and this rule extends to evidence created by an unlawful process as well as evidence uncovered by an unlawful process. The appellants relied on the rule that the product of a breathalyser test was inadmissible unless the testing device was an approved one, but this was held to not be analogous to fingerprint devices. Breath tests and speed guns are methods of measuring something that cannot be re-measured; the fingerprints could be reproduced any time afterwards and would be the same.