APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Brodie Acting Sheriff Principal Farrell	[2012] HCJAC 77     XJ884/12     OPINION OF THE COURT   delivered by LADY PATON   in   BILL OF SUSPENSION   by   THOMAS O'LEARY Appellant;   against   PROCURATOR FISCAL, GLASGOW Respondent: _____________

 

Appellant: Gebbie, advocate; Paterson Bell, Edinburgh

Respondent: Prentice, QC, solicitor advocate, AD; Crown Agent

 

 

14 December 2012

[1] In this Bill of Suspension, Mr Gebbie accepts that the application for the warrant is competent. He also accepts that the test is accurately set out by the sheriff in his report.

[2] Nevertheless it was submitted that the sheriff had erred in the exercise of his discretion when granting the warrant authorising dental impressions to be taken. That means that it is submitted that no reasonable sheriff properly directing himself could, on the information before him, have granted the warrant.

[3] Unlike the case of Hay v H M Advocate 1968 JC 40, the complainer in this case is alive. In her statement, she alleges that the appellant ripped her pyjama top and bit her on the body. The forensic odontologist, having viewed photographs of her injuries, has given an opinion that the mark on the left breast is a probable human bite and the mark on the right breast is a possible human bite.

[4] Against that background, we note that the offence alleged in this case is a grave one. The investigation sought is, in our view, proportionate and reasonable. Further, in our opinion, the evidence sought is necessary, because it bears on the question of the identification of the assailant. As the sheriff rightly notes, it may prove exculpatory.

[5] In all the circumstances the sheriff has not, in our opinion, erred in the exercise of his discretion when carrying out the balancing exercise required, and granting the warrant. We shall refuse the Bill.