Scottish High Court of Justiciary Decisons

JAMES GEDDES JACK v. HER MAJESTY'S ADVOCATE [1999] ScotHC 48 (5th March, 1999)

This is an appeal against conviction by James Geddes Jack, who was convicted at Airdrie Sheriff Court on 31 October 1997 by a unanimous verdict of the jury of five charges of using lewd and libidinous practices and behaviour towards two young girls. The complainers were sisters. Two charges, one at common law and the other under Section 5 of the Sexual Offences (Scotland) Act 1976, related to the older girl. Three charges related to the younger girl, a common law charge and a charge under the 1976 Act, and also a charge under section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995, relating to the period following the coming into force of that statute.

The only ground of appeal advanced was directed at the admissibility of certain evidence from a female police officer, WPC Ruth Cardwell, whose name did not appear on the Crown list of witnesses, but whose evidence was allowed to be led, on a Crown motion, as additional evidence, in terms of Section 268 of the Criminal Procedure (Scotland) Act 1995.

The circumstances which led to the Crown making the motion to lead the evidence were as follows. On the first and part of the second days of the trial WPC Cardwell was one of the police officers in court carrying out dock duty and sitting beside the appellant. On the first day of the trial evidence was given by the older girl behind closed doors. During the course of her evidence there was an adjournment. During the adjournment the girl sat in a chair outside the court, while the appellant was left inside the court on his own, as it was a condition of his bail that he did not approach or communicate with either of the two girls.

WPC Cardwell's evidence was that during the adjournment she entered the court and asked the appellant if he would like a cigarette. He accepted and they both went down to the basement area where they each lit up a cigarette. Thereafter the appellant initiated conversation about the case by saying that he did not understand how such accusations could be made against him. Constable Cardwell commented that it must be awful to have such serious allegations made against him if nothing had happened. The appellant then told her that he was receiving support from a number of people and had received a number of cards. The Constable inquired if his wife was standing by him and the appellant replied that she would be the first person to desert him if she thought there was any substance in the charges. Thereafter the appellant was described as "rambling on" about the younger girl not being able to go on holiday. The Constable did not understand the point that was being made, nor was she particularly interested in it, but allowed the appellant to continue to speak. In the course of his ramblings he stated "Anyway, anything I did to them they consented to." The Constable made no comment about this remark, and immediately after it was made the appellant's solicitor appeared and the trial was resumed.

On the following day, the second day of the trial, the younger girl gave evidence of repeated sexual abuse by the appellant. In the course of the day the Constable mentioned to the Procurator Fiscal the conversation which she had had with the appellant the day before. She was told that she might now be required as a witness and could no longer remain in court. Arrangements were made for her to relinquish dock duty. The Sheriff in his note states that nothing which was said in evidence during the first two days of the trial, while the Constable remained in court, could in any way have affected or influenced her evidence. Had it not been for her evidence, the Crown case would have been entirely dependent on the operation of the Moorov doctrine, and the evidence of the two complainers would have been relied upon for mutual corroboration.

On the morning of the third day of the trial a motion was made on behalf of the Crown to allow the Constable's evidence of the conversation between her and the appellant to be heard. The motion was opposed on behalf of the appellant on the ground that the admission of the Constable's evidence would be unfair and prejudicial and would lead to an injustice. The Sheriff, after hearing the evidence outwith the presence of the jury, granted the motion, and allowed an extensive adjournment to enable the Constable to be precognosced on behalf of the appellant, and for other enquiries to be made. In his note the Sheriff states that he was unable to conclude that the circumstances in which the appellant's statement was made were blatantly unfair or that no reasonable jury properly directed could consider that it had been obtained fairly. The appellant had initiated the conversation and no attempt had been made by the Constable to elicit an adverse comment from him, or to question him in any way about the circumstances of the case. He accordingly granted the motion.

WPC Cardwell subsequently gave evidence along the lines which we have set out. The sheriff notes that she did so "against her will". The sheriff in his charge to the jury indicated that the appellant, in giving evidence, did not dispute much of WPC Cardwell's evidence as to the circumstances and content of the conversation, but he denied saying "Anything I did to them they consented to." According to him what he was saying was that he had not done anything.

In his charge, the sheriff dealt with WPC Cardwell's evidence by directing the jury that they should decide which, if either, of the two people was giving a truthful version of what happened and which, if either, was reliable; if they accepted the Constable's evidence, they should decide whether the appellant's words were only capable of pointing towards his guilt; whether what he said was a separate source of evidence; and whether the statement was fairly obtained. The sheriff explained that a person who had been cautioned and charged could not be interrogated or induced to make a statement and directed the jury that they should decide whether the Constable had provoked or invited or induced the appellant to make the statement, and whether she should have cautioned him.

On behalf of the appellant, Mr Burns argued that the Sheriff should have ruled that the evidence of the Constable was inadmissible on the ground that no reasonable jury could have regarded the statement as having been fairly obtained. The appellant was under the protection of the Court. The way in which the Constable participated in the conversation was such as to elicit the statement from the appellant. To say that it must be awful to have such serious allegations made if nothing had happened, and to ask whether his wife was standing by him were emotive statements which were bound to provoke a response. The appellant as a first offender in the course of his trial was in a particularly vulnerable position. In the circumstances the Constable ought to have attempted to stop him from continuing after his initial remark, and should have cautioned him. Further, the admission of this evidence had led to a miscarriage of justice.

On behalf of the Crown, it was accepted that, if the Sheriff had erred in allowing the evidence of the Constable to be led, there had been a miscarriage of justice. It was however submitted that the Sheriff had applied the correct test as set out in Balloch v HMA 1977 J.C. 23. Only if he concluded that no reasonable jury could hold that the statement had been voluntarily made and had not been extracted by unfair or improper means was it appropriate for him to refuse to allow the evidence to be led. The statement had not been made as a result of an inducement or trap, but flowed from an act of kindness by the Constable. In these circumstances, it was open to a reasonable jury to hold that this statement was voluntary and had not been extracted by unfair or improper means, and the Sheriff was right to allow the evidence to be led.

In this case it is important to recognise the position of the appellant at the time when he made the statement in question. He was an accused person in the course of undergoing trial. As such, he was entitled to no less protection than that afforded by the court to persons who have been cautioned and charged with an offence. Such persons are protected against attempts by police officers to obtain from them further evidence implicating them in the crimes with which they have already been charged. To be admissible, any statement made by an accused person after caution and charge must be voluntary or spontaneous, and not elicited by questions. If officers interrogate an accused person in that situation, or invite, encourage or induce him to make a statement, any statement that he makes as a consequence will not be admissible in evidence.

By the time the trial is reached, the stage of investigation and accumulation of evidence is even further in the past. The procedure has moved on to the stage at which the appellant's guilt or innocence is being determined, on the basis of the evidence which the Crown has gathered and of which the accused has been given notice. If it is unfair for police officers to induce an accused person to provide evidence after he has been cautioned and charged, it is, in our view, clearly contrary to principles of fairness for a police officer to encourage or even allow an accused person to talk to the officer about the offence, to his potential prejudice, during a break in his trial, when he has been separated from his solicitor and counsel. The protection which the court affords to an accused from the time he is cautioned and charged with an offence continues throughout his trial, and is fortified by representation by counsel and solicitor. In this case, the appellant was inadvertently removed from that protection, and having been removed, was placed in a situation in which he made a statement. In these circumstances, we consider that it was for the court itself to repair the gap in its protection by upholding the principles of fairness which regulate the conduct of trials; it was not a situation in which the court could properly leave the issue of fairness to the jury.

The appellant initiated the conversation with the Constable who responded by saying that it must be awful to have such serious allegations made against him if nothing had happened, and enquired if his wife was standing by him. It was submitted on behalf of the appellant that the officer's remark and subsequent question were emotive and likely to provoke a response. We think there is force in that submission. The words and their effect must be considered objectively, and not in the light of the author's intention, however worthy that may have been. It seems to us that the officer's actions and words were designed to relieve the strain which the appellant might be expected to be suffering and we consider that, in the particular circumstances, the officer's words were liable to provoke a response. It may therefore be said that the appellant was encouraged to continue talking about the offence. There is no suggestion that the officer had any intention of provoking a response, and, from her reaction to being called as a witness, it seems clear that she did not report the conversation to the procurator fiscal with a view to its being used as evidence against the appellant.

In all these circumstances we have come to the view that the statement to which WPC Cardwell spoke in evidence falls to be regarded as having been unfairly obtained. It should not have been the subject of the motion by the Crown, and should not have been admitted in evidence. Since the Crown accept that, if the statement was inadmissible, there was a miscarriage of justice, it follows that the conviction must be quashed.