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[2017] HCJAC 33


Lord Drummond Young

Lord Malcolm

Lord Turnbull











Appellant:  M McKenzie;  Beaumont & Co

Respondent:  Goddard, AD;  Crown Agent

19 January 2017

[1]        The appellant was convicted after trial of two charges: first, that on 16 December 2015 he broke into a dwelling house in Loanhead and stole two sets of car keys, an iPad, an iPhone, two wallets, a handbag and a necklace; and secondly, that on the same date at the same address he stole a motor vehicle.  He has appealed against that conviction on three separate grounds, which we will consider individually.  We note at the outset that it is not in dispute that the offences libelled took place; the only issue is whether the appellant has been adequately identified as the perpetrator.

[2]        The evidence disclosed that on 15 December 2015 the householders retired to bed, and the following day they realized that items were missing from their house.  They contacted the police, and a scenes of crime examiner attended.  His attention was drawn to marks on a “hopper” window on the ground floor of the house.  The householders indicated that the front door had been locked, but the “hopper” window had not been, and that that window appeared to be the point of entry.  The marks had not been present on the previous day.  The scenes of crime examiner was able to take a usable “lift” of a fingerprint from the outside of the window.  That was subsequently compared with a print that was said to have been taken from the appellant.  That fingerprint evidence was relied on by the Crown for identification of the appellant as perpetrator.  In relation to charge (2), the householders realized that two sets of car keys had been taken.  One set was for a car that had been parked across the road from the house.  The car had disappeared.  The Crown relied on the close connection in time between the break-in and the disappearance of the car to link the two offences.  The fingerprint evidence was critical to the identification of the appellant as the perpetrator of the two offences.


Fingerprint Evidence

[3]        The primary ground of appeal relates to the adequacy of the fingerprint evidence adduced by the Crown.  At the trial an objection to the leading of the fingerprint evidence was taken as a matter of admissibility.  The sheriff repelled the objection, but the argument was renewed during submissions.  At this stage the sheriff treated the question as one of sufficiency of the fingerprint evidence, and once again rejected the argument.  We consider that the sheriff was correct to treat the matter as one of sufficiency, following the repelling of the objection.  The critical question is whether sufficient evidence was available to entitle the jury to draw the inference that images of fingerprints taken from the appellant were those that were compared with the lifts taken from the scene of the break-in.


Evidence Relating to the Fingerprint Comparison

[4]        The comparison exercise relied on two components.  The first was the set of fingerprints which had been taken from the hopper window at the scene of the crime.  The existence of fingerprints had been noticed by the female householder, who had drawn the attention of the scenes of crime examiner to them.  The scenes of crime examiner had then obtained lifts from the window, in the form of an acetate image which was then submitted to the forensic photography department, who created a photographic image from it to produce greater clarity.  That photographic image was used for comparison purposes.   The second component was a set of fingerprints that, the Crown alleged, had been taken electronically from the appellant at Dalkeith Police Station after he had been taken into custody.  These were introduced into a system known as “Livescan”, which transmitted the images to the Scottish Police Authority and automatically produced prints of the images.  Fingerprint examiners employed by the Scottish Police Authority then compared the lifts with the fingerprints taken from the Livescan system, and expressed the opinion that the lifts and the fingerprints matched each other.

[5]        The evidence relied on by the Crown in relation to the fingerprint images in the Livescan system was as follows.  Sergeant Alastair Mackintosh was the custody sergeant on duty at Dalkeith Police Station during the early morning of 29 January 2016, when the appellant was taken into custody.  Sergeant Mackintosh stated that the appellant had been taken into custody prior to the start of his shift, and had been fingerprinted on his instructions.  The fingerprints were taken electronically and fed into the Livescan system using an infrared scanner.  Sergeant Mackintosh confirmed that the details in the relevant section of a printout from the system related to the appellant.  The printout was available as Crown productions 5, and Sergeant Mackintosh stated that production 5/4 contained the fingerprints from the appellant that had been fed into the system.  The fingerprints had been taken and introduced to the system by a Force Support Officer, PCSO Thomas Clark, who also gave evidence.  PCSO Clark spoke to Crown production 5/4.  He stated that he had recorded the appellant’s fingerprints using the Livescan system, and that he had further recorded the appellant’s details in the system.  In production 5 the details given on the relevant page were those of the appellant.  The production included the appellant’s personal details and indicated that the fingerprints had been taken by PCSO Clark at 1:36 am on 29 January 2016, at a time when the appellant was in custody at Dalkeith Police Station.

[6]        Evidence was led from two fingerprint examiners employed by the Scottish Police Authority, Dr Lisa Davis and Mr Terence Foley.  Both of these gave evidence about the Livescan system, and explained in some detail how it worked in practice.  In relation to the particular case, Dr Davis spoke to Crown production 5, including the fingerprints that bore to have been taken from the appellant at Dalkeith Police Station (production 5/4), which had been transmitted using the system and printed out in the Scottish Police Authority office where she worked.  She had used the printed document for a comparison with the lifts taken from the scene of the break-in, which were available separately to the fingerprint examiners.  She explained the comparison process, and confirmed a match between the fingerprints taken from the appellant and the lifts from the scene of the break-in.  In relation to the operation of the system, she stated that the fingerprint images were captured live and transmitted digitally through the system, which was a secure system.  The fingerprint images were printed automatically at the office where she worked.  Mr Foley’s evidence was to similar effect.  He explained the Livescan system and its transmission of fingerprint images from a police station to the offices of the fingerprint section of the Scottish Police Authority, where hard copies were printed such as those found in production 5/4.  The fingerprint images were then used in a comparison exercise with lifts taken from a crime scene.  Mr Foley described that exercise, and confirmed that the images in production 5/4 matched the lifts taken from the scene of the present break-in.


Argument for the Appellant

[7]        The argument for the appellant was as follows.  The Crown had failed to produce and serve a certificate under section 284 of the Criminal Procedure (Scotland) Act 1995 and had failed to have a witness attend court to speak to the evidence relating to the appellant’s fingerprints in Crown production 5.  Dr Davis and Mr Foley had given evidence about the Livescan system and the comparison of the lifts taken from the scene of the break-in with other fingerprints on that system.  They had not, however, been able to confirm that those other fingerprints were taken from the appellant, as they had no direct knowledge of the taking of those fingerprints, and could only speak to what was contained in the productions derived from the Livescan system.  Evidence was available from Sergeant Mackintosh and PCSO Clark about the taking of fingerprints from the appellant, but they were unable to confirm that the fingerprints on the document produced by the Livescan system, production 5, were those taken from the appellant.


[8]        We have no hesitation in rejecting this argument.  Reference was made to section 284 of the Criminal Procedure (Scotland) Act 1995, but that section cannot be conclusive.  It provides the Crown with a procedure by which it can prove the contents of a document without the need to lead witnesses to speak to those contents.  The use of that section is entirely optional, however, and if the defence challenges the content of the document the Crown is still obliged to lead full evidence relating to the matter.  Thus it must logically be competent to prove the contents of a document by alternative means, and there can never be any obligation on the Crown to make use of section 284 in order to prove the contents of the document.

[9]        In the present case the Crown chose to make use of direct evidence to establish that the appellant’s fingerprints had been found at the scene of the break-in.  That evidence had three components.  First, Sergeant Mackintosh and PCSO Clark gave evidence about the taking of fingerprints from the appellant using a Livescan scanner.  They were able to identify the appellant as the person whose fingerprints were taken in this way.  They were able to give the date and time of the fingerprinting: 1.36 am on 29 January 2016.  That corresponded to the information contained in the Livescan system.  Sergeant Mackintosh and PCSO Clark also gave evidence that the details of the person being fingerprinted are inserted into the Livescan machine before the scans are taken, and that the details are transmitted along with the images.  Both were able to confirm that Crown production 5 contained the details of the appellant as entered into the Livescan system by Sergeant Mackintosh.  Both gave evidence that the scans and the appellant’s details were sent to the Scottish Police Authority, the body that is responsible for making fingerprint comparisons, shortly after they were taken.

[10]      Secondly, Dr Davis and Mr Foley gave evidence about the workings of the Livescan system, and how it recorded and transmitted, in digital form, images of fingerprints taken from a person in police custody.  They gave evidence that the system was a secure system.  In relation to Crown production 5, they gave evidence about the information disclosed on the form and how it indicated the place and time when the fingerprints were taken and the name of the person from whom they were taken.  Thirdly, Dr Davis and Mr Foley spoke directly to the comparison between the images disclosed in Crown production 5, produced from a Livescan system, and the images of fingerprints (in the form of photographs) taken from the crime scene.  They gave evidence that these matched each other.

[11]      When the foregoing evidence is taken together, it is clear in our opinion that the jury were entitled to draw the inference that the images taken from the appellant at Dalkeith Police Station matched the lifts taken from the crime scene.  The evidence disclosed how the images were taken by PCSO Clark from the appellant, who was in custody, how they were scanned into the Livescan system, how they were transmitted by that system to the office where the fingerprint examiners worked, and how they were automatically printed out in those premises.  The workings of the Livescan system were spoken to by the fingerprint examiners, who were experienced in the workings of the system.  The fingerprint examiners then gave evidence about the comparison between the images printed by the Livescan system and the lifts taken from the scene of the break-in.  The comparison is dependent for its validity on the proper working of the Livescan system, but the evidence that was led relating to that system was in our opinion sufficient to permit the inference that the system worked properly.

[12]      On the latter point, we would add the observation that at the present day a large number of the pieces of machinery, appliances and devices used in everyday life are heavily dependent upon electronic systems.  This would apply, for example, to items as diverse as mobile telephones and cars.  It would be absurd if detailed evidence required to be led about the workings of such systems in every case.  Unless there is an express challenge to the proper working of the system, we consider that it must be presumed that the system functioned as it was intended to function.  If the proper functioning of the system is to be challenged, evidence to that effect must be led.  In the present case no such evidence was led. 


Location from Which Fingerprints Were Taken

[13]      The second ground of appeal was that, if the fingerprint evidence were admissible, the presence of fingerprints on the outside of the window at the locus of the break-in was not sufficient to draw the inference that the appellant was responsible for the break-in.  The most that could be inferred was that the appellant was present outside the property; nothing had been found inside, and none of the items stolen had been recovered.

[14]      We reject this ground of appeal.  Evidence was available from the householders that the point of entry was through the “hopper” window.  That window had not been locked, whereas the front door had almost certainly been locked.  The male householder further spoke to the presence of footprints on both the internal and external window sills adjacent to that window; these had not been present on the previous day.  The female householder gave evidence that she noticed the footprints the day after the break-in, and that she noticed marks on windows which had been cleaned the day before.  Those were the marks from which the fingerprint lifts were taken.  In these circumstances the jury was entitled to draw the inference that the “hopper” window was the point of entry, and that the marks that produced the fingerprints had been made since the previous day.  No alternative explanation for the marks was put forward.  In these circumstances the jury was entitled to conclude that the fingerprints found on the “hopper” window were left by the person responsible for the break-in.

[15]      We were referred to the recent decision in Reid v HM Advocate, 2016 SLT 797, where the perpetrator of a break-in was identified because his DNA was found on a cigarette found inside the house.  Counsel for the appellant attempted to distinguish that case on the ground that the DNA relied on had been found inside the building, whereas in the present case the fingerprint was taken from outside the building.  While the finding of evidence such as a person’s fingerprint or DNA inside a building will normally entitle a jury to conclude that that person has been in the building, it is not essential that such evidence should be inside the building for that conclusion to be drawn.  In the present case the fingerprint was found on a window which, according to other evidence, was the point of entry.  In our opinion those circumstances also permit a jury to conclude that the fingerprint was left by the person who carried out the break-in.


Directions to Jury in respect of Previous Inconsistent Statement

[16]      The third ground of appeal was that the sheriff had failed to provide the jury with adequate directions in relation to the evidential significance of the Crown witness Ian Lynch.  The sheriff describes Lynch as a “reluctant” witness, who knew the appellant.  The police had spoken to him about the theft of the car referred to in the second charge on the indictment and the housebreaking, and he had given a statement to them which was to some degree incriminatory of the appellant.  Lynch claimed in evidence that he could not remember much about the statement because he had been under the influence of alcohol and various drugs at the time when he gave it.  He further denied any knowledge of seeing the appellant in the car that had been stolen.  The procurator fiscal had attempted to put Lynch’s statement to him, but he adopted the position that his statement was not the truth except in relation to certain details.  The sheriff further records that the Crown placed no reliance on Lynch’s evidence in their speech to the jury.

[17]      For the appellant it was submitted that the sheriff, in addition to general directions, ought to have given a specific direction that the jury should only take into account the evidence given in court and any part of Lynch’s statement that he had adopted in court, but that otherwise they must disregard the statement.

[18]      The sheriff gave standard general directions.  These included a statement that a witness’s evidence was what was said in the witness box, but that there might be an exception for police statements.  The sheriff referred specifically to the police statements of the male complainer and Lynch.  He stated that referring a witness to such a statement was permissible where it was suggested to the witness that he had said something different in the police statement to his evidence in court, to test whether the evidence in court should be treated as credible and reliable.  The sheriff specifically told the jury that they were not bound to accept that what a witness said to the police was necessarily truthful or reliable; it simply meant that those parts of the statement which the witness accepted saying and acknowledged to be the truth became available as part of the whole evidence of the witness.  The evidence of the witness comprised what he said he recollected in the witness box, including what he was prompted to remember by reference to the prior statement.  With reference to Lynch’s statement, the sheriff stated the witness’s position as follows: while parts of the statement were true, his overall position was that much of what was recorded in it had been said under duress and was not true.  The sheriff instructed the jury that it was a matter for them to decide whether there were any differences of importance between what was said in the statement and what was said in court.  If there were differences, that might well have an effect on the jury’s assessment of the credibility and reliability of the evidence given in court.  The sheriff concluded this part of his charge by stating that an “important point” was that Lynch’s evidence about what happened was what he said in court.  The jury could not substitute the content of the statement given by him to the police for his evidence as given in court.

[19]      In our opinion those directions are adequate in all the circumstances.  The circumstances include the fact that the Crown did not rely on Lynch’s statement in their address to the jury.  Furthermore the jury were given the two crucial directions: prior statements might have an effect on the assessment of the witness’s credibility and reliability, but their content could not be used as a substitute for the witness’s evidence as given in court.  These parts of the charge cover precisely the matters that are referred to in the grounds of appeal and the submissions made of behalf of the appellant.  We accordingly reject this ground of appeal.



[20]      For the foregoing reasons we refuse this appeal.