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HIGH COURT OF JUSTICIARY
[2007] HCJ 12
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OPINION BY LORD
HODGE
in the cause
HER MAJESTY'S
ADVOCATE
against
STEPHEN RONALD
ญญญญญญญญญญญญญญญญญ________________
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AD: McSporran, Solicitor Advocate
For Panel: Burns QC and Campbell, Advocate
27 April
2007
Introduction
[1] This
is an application by minute raised as a preliminary issue at a continued
preliminary hearing. The application is
to exclude the concluding part of the police interview with the Minuter,
Stephen Ronald, (Pro 5) which took place on 5 December
2005
towards the end of his period of detention which started at 1308 hours and
ended at about 1908 hours, when he was arrested.
[2] The
ground on which this application is made is that the answers which the Minuter
gave at pages 65 to 68 of the transcript of that interview are inadmissible (a)
because the information which the police used in questioning the Minuter at
this stage was derived from inadmissible evidence and (b) because the answers
were elicited in an unfair manner.
[3] The
onus being on the Crown to satisfy the court that the evidence was admissible,
the Advocate Depute led the evidence of two police witnesses. The first was PC Gordon Ross who spoke to the
Minuter at Drylaw police station when he attended there voluntarily and who, in
the company of PC Ewing and the Minuter, viewed photographs and video footage
on the Minuter's mobile phone. The
Advocate Depute also led the evidence of DS Duncan Morrison, who conducted the
interview with the Minuter at St Leonard's Police Office. I also saw a video of the relevant part of
that interview (pp.59-68 of the transcript).
Mr Burns led the evidence of the Minuter. I was not shown the photographs
or video footage from the Minuter's mobile phone.
[4] The
Advocate Depute referred me to two authorities, namely Thompson v Crowe 1999 SCCR 1003 and Lord Advocate's Reference
(No 1 of 1983) 1984 JC 52. Mr Burns
QC referred me to those two authorities and also to Chalmers v HM Advocate 1954
JC 66, Hopes and Lavery v HM Advocate 1960 JC 104 and Steele v HM Advocate 1992 SCCR 30.
[5] The
Advocate Depute founded principally on Thompson
v Crowe but referred, as an
alternative formulation of the appropriate test, to the statement by the Lord Justice
General (Emslie) in Lord Advocate's
Reference (No 1 of 1983) (above) at p.59 where he stated that a judge would
normally be justified in withholding answers from a jury only if he were
satisfied that no reasonable jury could hold upon the evidence that the answers
had not been extracted from the suspect by unfair or improper means. I am satisfied that it is appropriate to
apply the test in Thompson v Crowe.
That is the decision of a Bench of five judges which overruled the case
of Balloch v HM Advocate 1977 JC 23 from which the Lord Justice General derived
the formulation which I have mentioned. On
the authority of Thompson v Crowe, it is for the judge and not the jury to decide on the
admissibility of statements made by a suspect to the police. Accordingly the "no reasonable jury" test has
no place in the determination of the admissibility of evidence in this
context.
[6] As Mr
Burns submitted, there are two bases for exclusion of evidence of such a
statement. First, the judge should exclude a statement if it was taken in
circumstances which render it inadmissible under any rule laid down by the
law. Secondly, he should exclude such a
statement if he is not satisfied that it was obtained fairly. See Thompson v Crowe at p.1033 E-F.
[7] In
relation to the second basis, the test is one of fairness in all the
circumstances, having regard not only to the means by which the interview was
conducted but also other circumstances which might place the accused in a
position of such disadvantage that he could understand neither the situation he
was in nor his right not to answer the questions which were put to him. See, for example, B v HMA 2003 SLT 662.
The facts
[8] Following
a complaint of a sexual nature against him, the Minuter went voluntarily to Drylaw police station where he
spoke to PC Ross and PC Ewing. The
Minuter was very co-operative and gave them an account of what had occurred
between him and the complainer on the previous night. In giving that account he explained that
there were images of himself and the complainer on his mobile phone. He allowed the police officers to view the
still photographs and three short sequences of video which he had recorded on
his phone. These showed the Minuter
performing various sexual acts on the complainer. PC Ross in his evidence explained that during
the video scenes the complainer did not speak; the only noise recorded on the
phone was the rustling of the bed clothes.
The complainer was seen to be lying motionless and PC Ross expressed the
view that she was asleep or unconscious when the sexual acts recorded on film,
including penetrative sexual intercourse, occurred. After the police officers had viewed the
pictures and video footage on the phone, PC Ewing detained the Minuter under
section 14 of the Criminal Procedure (Scotland) Act 1995. The police officers then took the Minuter to St Leonard's police station where DS Morrison
and Acting DC Angela Edmunds interviewed him.
Before the interview began, PC Ross explained to DS Morrison his
understanding what he had seen on the mobile phone.
[9] The
interview, which commenced at 1706 hours, lasted until 1904 hours. During most of the interview the Minuter gave
a detailed account of the events of the previous evening and night. He explained how he had encountered the
complainer and how they went drinking before taking a room in a hotel so that
they could buy alcohol late at night.
They had consensual sexual relations in a bedroom in the hotel in which
she played an active role. The Minuter
fell asleep and was woken by the complainer and again they had consensual
sexual activity. On the third occasion
when they had sexual relations the Minuter used his mobile phone to film part
of the sexual activity to show off to his friends. The complainer felt unwell and in the morning
they left the hotel by taxi. In the taxi
the complainer took his mobile phone and refused to return it. When the Minuter was paying the taxi driver,
the complainer ran into her flat and locked the door, refusing to return his
phone. The Minuter attempted to get into
the flat but, on failing to do so, he waited outside the block of flats where
he encountered the police arriving to investigate the complaint. After the Minuter had given this account, DS
Morrison put to him his understanding of what the police officers from Drylaw
police station had told him they had seen on viewing the footage on the mobile
phone. He explained that they
interpreted the footage as showing that the complainer was unconscious. The Minuter denied that he had had
penetrative sexual intercourse while the complainer was asleep. DS Morrison then suggested that he would find
it strange if she were silent when he was videoing her and sexual activity was
going on, asking him why there was no noise coming from her. The Minuter's response was that he probably
did it while she was asleep. He then
said she must have been asleep when he filmed her.
[10] Having
seen the video of the last phase of the police interview, it is clear that DS
Morrison in this phase chose, after hearing the Minuter's account of events, to
put to him his understanding of what the video footage showed, from the
information which the police officers had relayed to him. In questioning the Minuter he did not raise
his voice or apply any pressure beyond that which would arise naturally from
being asked to comment on the police officers' potentially incriminating
interpretation of the video footage.
While DS Morrison agreed with Mr Burns' description of his questions at
this stage as being cross-examination, the Minuter in his evidence accepted
that it was fair for the detective sergeant to ask him those questions and said
that he thought that he had been treated fairly.
Submissions
[11] The
Advocate Depute invited me to rule that the answers given in the challenged
part of the interview were voluntarily made and were not extracted by unfair
means. The police officer had fairly put
to the Minuter his understanding of the evidence against him and had given him
an opportunity to comment on that evidence.
The Crown's position was that the description which DS Morrison gave of
what the video showed was not inaccurate and the defence had not suggested
otherwise.
[12] Mr
Burns submitted, first, that the challenged evidence was inadmissible under a
rule of law as the contention which DS Morrison put to the Minuter was based on
the evidence of PC Ross but PC Ross's evidence of what he thought the video
showed would not be admissible evidence before a jury. This was because it was for the jury and not
the witness to decide what the video showed on the central issue of the case,
namely whether the complainer was awake and conscious when sexual intercourse
occurred. It was for the jury and not a
police witness who had no particular expertise in interpreting video evidence
to decide that question. He founded in
particular on a dictum of Lord Sorn in Hopes
and Lavery (above) at pp.112-113, where (in a case about the transcription
of a recorded conversation) he stated that there was a general rule that it was
inadmissible to put a witness into the witness box to tell the jury what the
evidence they had been listening to ought to convey to them. In short, Mr Burns' submission was that, as
PC Ross's evidence of what he saw on the video would be inadmissible in court,
the Minuter's answers elicited by questions derived from his account of what he
saw were inadmissible.
[13] He
submitted, secondly, that I should, in any event, treat the potentially
incriminating answers as inadmissible as they were unfairly obtained. The interview in the final phase had amounted
to cross-examination designed to undermine the Minuter's assertion that he had
not had sexual intercourse with the complainer while she was asleep or
unconscious. The questioning was subtly
designed to manoeuvre him into giving an incriminating answer and was thus
unfair.
[15] In
relation to Mr Burns' first ground of challenge, I am not satisfied that there
is a rule of law that renders inadmissible evidence from a witness of his or
her understanding of what video or CCTV footage shows, even where the matter
shown on the video addresses the principal issue which the jury have to
determine in a particular case. In any
event, Lord Sorn made it clear that he was speaking of a general rule, that
there were exceptions to that rule and that people without a technical
qualification could be allowed to explain their understanding of a particular
item of evidence. The issue was fairness
to the accused and presiding judge could control such evidence to ensure that
the giving of such evidence was fair to the accused.
[16] I am
supported in my view by consideration of Steele
v HM Advocate (a case which
concerned video evidence from police surveillance tapes) in which the Lord Justice
General (Hope) emphasised that questions of principle were likely to be
overshadowed by what was practicable in each case. He stated that
"it is undesirable for a trial to be prolonged
by a long series of replayings of the tape or of passages from it either at the
request of the parties or of the jury ..... So it is likely to be of advantage
for the witnesses to be asked to give their own opinions as to what is being
shown on the tape in order that the jury's minds can be directed to the
relevant points while the tape is being played.
But, except in cases where some particular expertise is required to
understand what is going on, the jury are free to make up their own minds about
what the tape reveals. It is not
necessary for them to be provided with a running commentary on every detail."
[17] On this
approach a witness who expresses his view on what a tape shows is not usurping
the function of the jury. His or her
view is open to challenge on cross-examination. The presiding judge can
intervene to ensure fairness, for example by clarifying with a witness that a
part of the taped evidence which is ambiguous is open to different
interpretations, by controlling the questions which the prosecutor puts to the
witness or by emphasising in his directions that it is for the jury to
determine what the tape showed and that while they can have regard to the
witness's views they are not bound by them.
[18] As I am
not persuaded that evidence from PC Ross as to what he thought he could see on
the video would be inadmissible at a trial, I do not accept the starting point
of Mr Burns' first ground of challenge.
But even if PC Ross's evidence were inadmissible, that would not of
itself prevent a police officer interviewing the Minuter from using information
derived from PC Ross in questioning him.
For I do not consider it to be a good ground of objection that the
interviewing officer had not seen the video but was relying on the account
given by another officer who had viewed it.
If that were objectionable it would severely hamper police
investigations as, by analogy, an interviewing officer could not rely on a
report from another officer of what an eye witness had said to him to question
a suspect where the other officer's evidence of the statement would be
inadmissible as hearsay. I know of no
rule of law which renders inadmissible answers to questions by an interviewing
officer which are based on information derived from such hearsay reports. For those reasons I reject the first ground
of challenge.
[19] In
relation to the second ground of challenge, the modern law is that where a
caution is given and understood, it is not of itself unfair for the police to
ask questions of a suspect which might elicit answers which tend to
incriminate: see the statement of the Lord Wheatley in Miln
v Cullen 1967 JC 21, at pp.30-31 which was cited with approval by the Lord
Justice General (Emslie) in Lord
Advocate's Reference (No 1 of 1983) at p.58. The latter case also demonstrates that, where
a caution is given and understood, it is not of itself unfair to ask leading
questions which probe the suspect's account of events. What is not fair, as the Lord Justice
General stated in that case, are
questions which involve an element of bullying or pressure designed to break
the will of the suspect or force from him a confession against his will. What is proscribed is what the Lord Justice
Clerk (Thomson) described in Chalmers v HM Advocate as "bullying, pressure
[and] third degree methods", what the Lord Justice Clerk (Grant) said in Miln
v Cullen was "undue pressure,
cajoling or trapping" and what Lord Ross described in Friel v HM Advocate 1978
SLT (Notes) 21 as "sustained and forceful questioning". Unsurprisingly, deception on the part of the
police would normally amount to unfairness, particularly if combined with such
forceful questioning.
[20] Having
seen and heard the video of the relevant part of the interview, I can detect
nothing in the way in which DS Morrison questioned the Minuter which involved
bullying or pressure or deception. Nor
was the questioning subtle in a way which was calculated to deceive. I consider it to be unobjectionable. I therefore reject the second ground of
challenge.
[21] What
was the Minuter's state of mind at the stage when the challenged questions were
put to him, whether his answers are to be properly construed as being
confessions to having had penetrative sexual intercourse while the complainer
was asleep and what weight should be attached to those answers are matters
which can be explored in front of a jury.
