Public Prosecution Service v McKee: SC 22 May 2013

Non-approval didn’t devalue fingerprints

The court was asked: ‘what are the statutory consequences if the fingerprints of a defendant have been taken in a police station in Northern Ireland by an electronic device for which the legislation required approval from the Secretary of State, when such approval has never been given? In particular, is any evidence which makes use of the control fingerprints thus taken inadmissible in any subsequent court proceedings? ‘
Held: The appeal was dismissed. 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. The rule in Scott v Baker did not apply since that set out to measure something which could only be measured once and at the time, and that related to evidence which was at the heart of the offence involved, and ‘The control fingerprints taken from the appellants in the police station were not snapshots. The impressions which their fingers provided could be reproduced at any time afterwards, and would be the same. The accuracy of the Livescan readings, if disputed, could readily be checked independently by the appellants providing more samples, whether by ink and paper or by any other means, for examination by an independent expert. The ease with which this can at any time be done demonstrates that there was no need at all for Parliament to stipulate, or to intend, that the product of unapproved electronic fingerprint readers should be inadmissible. ‘

Lord Neuberger, President, Lady Hale, Lord Mance, Lord Kerr, Lord Hughes
[2013] UKSC 32, [2013] NI 133, [2013] 2 Cr App R 17, [2013] 3 All ER 365, [2013] WLR(D) 199, [2013] 1 WLR 1611, UKSC 2012/0007
Bailii, WLRD, Bailii Summary, SC Summary, SC
Northern Ireland
CitedKuruma v The Queen PC 8-Dec-1954
(Court of Appeal for Eastern Africa) The defendant appealed against his conviction for unlawful possession of ammunition, saying that the evidence had been obtained by unlawful means, and should not have been admitted against him.
Held: Lord . .
CitedRegina v Sang HL 25-Jul-1979
The defendant appealed against an unsuccessful application to exclude evidence where it was claimed there had been incitement by an agent provocateur.
Held: The appeal failed. There is no defence of entrapment in English law. All evidence . .
CitedRegina v Khan (Sultan) HL 2-Jul-1996
The police had obtained the evidence against the defendant by fixing a covert listening device at an apartment visited by the defendant, and by recording his conversations there. The defendant appealed, saying that the court should have regard to . .
Appeal fromThe Public Prosecution Service v Elliott and Another CANI 28-Sep-2011
The prosecutor appealed against dismissal of the case based upon fingerprint evidence. The prints had been taken digitally using a device which had not been approved as required. . .
DistinguishedScott v Baker 1968
The 1967 Act introduced the offence of driving with excess alcohol. The power to require a suspect to provide a laboratory blood or urine sample, by which blood alcohol could be tested, was made dependent upon a complex step-by-step procedure. The . .
CitedFox v Chief Constable of Gwent HL 1986
The driver left an accident. The police entered his home unlawfully, and on his refusal to supply a breath test, he was arrested and charged with faiing to supply.
Held: A lawful arrest is not an essential requirement before a breath test, and . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Leading Case

Updated: 10 November 2021; Ref: scu.510004