Public Prosecution Service v McKee (Northern Ireland)

Evidence obtained or created through an unlawful process remains admissible at common law if it is relevant, subject to statutory exclusion and the court’s power to protect the fairness of the trial. Breach of a statutory procedural requirement causes invalidity only where, on proper construction, Parliament intended that consequence.

A requirement that electronically taken fingerprints use an approved device did not make fingerprints obtained through an unapproved device inadmissible. Unlike a speed or alcohol measurement, fingerprints can be reproduced and independently checked. The legislation contained no express exclusionary rule, while the approval requirement retained practical force through a suspect’s right to refuse and the availability of judicial review.

The appellants were convicted of theft after fingerprints taken electronically at a police station were compared with a fingerprint found on packaging at the scene. The Livescan device used to obtain the control fingerprints had not received the approval then required by article 61(8B) of the Police and Criminal Evidence (Northern Ireland) Order 1989.

On a fresh hearing, the County Court accepted that the comparison evidence was inadmissible. On a case stated by the prosecution, the Court of Appeal reversed that ruling: [2011] NICA 61. The appellants appealed to the Supreme Court. The central issue was whether non-compliance with the device-approval requirement necessarily made evidence derived from the fingerprints inadmissible.

1. The appeals were dismissed unanimously. Lord Hughes delivered the judgment, with which Lord Neuberger, Lady Hale, Lord Mance and Lord Kerr agreed. Parliament did not intend breach of article 61(8B) of the Police and Criminal Evidence (Northern Ireland) Order 1989 to render electronically obtained fingerprints inadmissible. The Court of Appeal’s conclusion that Elliott’s control fingerprints were admissible was correct.

2. The common law admits relevant evidence even where it was obtained illegally, apart from special rules governing confessions and the power to exclude evidence to preserve trial fairness. That rule extends to evidence created through an unlawful process. Legislation enacted against that background does not produce an exclusionary consequence merely by requiring a prescribed method of obtaining evidence. Article 61(8B) stated no consequence for non-compliance, whereas other legislation expressly made evidence inadmissible when an approved device had not been used.

3. The governing question, following R v Soneji [2005] UKHL 49, was whether Parliament could fairly be taken to have intended total invalidity. The former classification of statutory provisions as invariably mandatory or directory was too rigid. Non-compliance may still cause total invalidity where the statutory context requires it, as illustrated by R v Clarke and McDaid [2008] UKHL 8.

4. The rules concerning breath-testing and speed-measuring devices did not provide a proper analogy. Those devices make measurements of transient activity which cannot later be reproduced. Control fingerprints can be taken again and independently checked. Their reproducibility meant that exclusion was unnecessary to protect against inaccurate evidence and inappropriate because it would deprive courts and defendants of reliable, relevant material.

5. The approval requirement was not deprived of effect by this construction. A suspect could lawfully refuse to provide fingerprints through an unapproved device. Regular police use of such a device could also be declared unlawful and restrained on judicial review. The legislative history, subsequent repeal of the approval requirement, and later statutory provisions expressly excluding biometric material required to be destroyed all supported the conclusion that no implied rule of inadmissibility was intended.

1. United Kingdom Supreme Court: Dismissed the appellants’ appeals unanimously and upheld the Court of Appeal’s ruling that the fingerprint-comparison evidence was admissible: [2013] UKSC 32.

2. Court of Appeal in Northern Ireland: On the prosecution’s appeal by case stated, reversed the County Court’s ruling on admissibility: [2011] NICA 61.

3. County Court: On fresh hearings of the appeals, held as a preliminary matter that the fingerprint-comparison evidence was inadmissible because the Livescan device had not been approved.

4. Magistrates’ court: Convicted both appellants of theft after admitting the fingerprint-comparison evidence.