Scottish High Court of Justiciary Decisons

HER MAJESTY'S ADVOCATE v. MICHAEL MAC MOWAT [2001] ScotHC 12 (23rd March, 2001)

[1] In the course of the Crown case in this trial and, in particular, in the course of the evidence of Detective Sergeant Garry McEwan, objection was taken by Mr Keegan, on behalf of the accused, to the admissibility of a line of evidence proposed to be led by the Advocate Depute. The line of evidence concerned related to a series of interviews conducted by various police officers with the accused on 8 November and 7 and 17 December 1999. What occurred at these interviews is set forth in Crown Productions 22, 23, 25, 27 and 29. Objection was also taken to the admission of any evidence from police officers relating to an alleged informal conversation between them and the accused on 17 December 1999, said to have occurred during the 42 minute break which occurred between the first and second sessions of an interview which commenced at 8.27 a.m. on that date, the occurrence of which is evident from the transcript of the interview concerned, Crown Production 23.

[2] Crown Production 22 is what bears to be a witness statement taken on 8 November 1999, from 10.15 a.m. onwards by the then Detective Constable Garry McEwan and Detective Constable David Shand Petrie from the accused at Kirkcaldy Police Station. Crown Production 23 is the transcript of a tape recorded interview conducted by Detective Inspector Alan Small and Detective Sergeant Graham Seath with the accused, at Glenrothes Police Station, on 17 December 1999, which commenced at 8.27 a.m. and concluded at 10.37 a.m. Crown Production 25 is the transcript of a tape recorded interview conducted by those police officers with the accused, also at Glenrothes Police Station on 17 September 1999, which commenced at 10.51 a.m. and concluded at 10.58 a.m. Crown Production 27 is the transcript of a tape recorded interview conducted by those police officers with the accused, also at Glenrothes Police Station on 17 December 1999, which commenced at 12.07 p.m. and concluded at 12.18 p.m. Crown Production 29 is the transcript of a tape recorded interview conducted by those same officers, with the accused, at Kirkcaldy Police Station, also on 17 December 1999, which commenced at 3.30 p.m. and concluded at 3.36 p.m.

[3] The basis of objection stated in relation to Crown Production 22 was that, at the material time, the accused had been a suspect in the eyes of the police, yet no caution had been administered to him. So far as Crown Production 23 and the informal conversation which occurred during the break in the course of the interview which it records were concerned, the objection was that the interview which it recorded had been conducted and the conversation had occurred during a period when the accused had been unlawfully detained; while the police had purported to detain the accused under section 14 of the Criminal Procedure (Scotland) Act 1995 prior to that interview and while the statutory six hour period had not expired at the time of the interview, the detention was unlawful by virtue of the provisions of section 14(3) of the Act of 1995, there having been a previous detention which arose out of the same set of circumstances as did the detention which was purportedly in being at the time of the interview of which Crown Production 23 was the transcript. The same ground of objection was stated in relation to the interviews of which Crown Productions 25 and 27 were transcripts. A further ground of objection was stated in relation to the interview of which Crown Production 27 was a record, to the effect that the caution which preceded it was defective, since it did not contain words indicating to the accused that he was not obliged to answer the questions to be put to him. As regards the interview, of which Crown Production 29 was a record, it was submitted that evidence of it was inadmissible because, by the time that that interview had been conducted, the accused had been an arrested person, the arrest having been made at 12.31 p.m. on the date in question in relation to the interviews conducted on 17 December 1999. Another ground of objection was stated in relation to all of the interviews which took place on that date upon the basis that the admission in evidence of their contents would involve unfairness to the accused.

[4] When these objections were raised on 22 February 2001, it was submitted on behalf of the accused that, since the factual premises on which the objections proceeded were not accepted by the Crown, at least in part, a trial within a trial would be necessary. The Advocate Depute on behalf of the Crown agreed with that submission; furthermore, in his view, there was some degree of obscurity as to certain of the relevant facts. In these circumstances, I decided that a trial within a trial should be held with a view to reaching a decision as to the admissibility in evidence of the material to which I have referred.

[5] In the trial within the trial, evidence was led by the Crown from a number of witnesses. Detective Sergeant Garry McEwan gave evidence as to the taking by him of the witness statement, Crown Production 22, from the accused on 8 November 1999. At that time, the accused had not been a suspect in the context of the murder inquiry arising out of the death of Bruce Connolly, which was why he had not been cautioned at the outset of the interview. At the time in question, the accused had in fact been an arrested person in respect of another crime. This witness had interviewed the accused again on 7 December 1999, when he had been in custody in connection with alleged drug offences; the witness thought that he had been arrested in respect of those matters. By this time, the accused had become a suspect in the context of the murder inquiry. Certain items of clothing had been taken from the house occupied by the accused at 47 Hayfield Road, Kirkcaldy, under the authority of a sheriff's warrant. The interview on 7 December 1999 had been tape recorded. The tape was Crown label Production 143 and the transcript defence Production 17. It had been concerned with the items of clothing removed from 47 Hayfield Road. Clothing had been taken by the police from all persons who had been at the locus of the murder, 53 Alexandra Street, Kirkcaldy. That group included the accused. This witness had been with the accused when he went to 47 Hayfield Road on 8 November 1999, on the occasion of the recovery of a pill bottle referred to in the statement which he had given then. That interview had been conducted on the instructions of Detective Chief Inspector Crozier, who had been in charge of the murder inquiry. This witness had released the accused on 7 December 1999 on the instructions of Mr Crozier. He had been arrested and cautioned regarding alleged drug offences, but no charge had been preferred against him. His detention and arrest in relation to those matters had not been bogus.

[6] The Crown also led evidence from Detective Constable Stuart Welsh, who had been involved in inquiries in connection with the death of Bruce Connolly. On 7 November 1999 he had spoken to the accused. So far as this witness was concerned, the accused had not then been a suspect in connection with the murder inquiry; he had been an associate of the deceased and had therefore been interviewed as a potential witness. Mr Welsh had been asked to trace and detain the accused in connection with an alleged assault by the accused on one James Ross in Lochgelly. The accused had been detained in regard to that matter at 11.10 p.m. on 7 November 1999. Although the detention documentation relating to that detention referred to a suspicion of "assault and other crimes", those words had not been intended to embrace the murder of Bruce Connolly. They had been used as a matter of routine practice. Certain items of property had been removed from the house at 47 Hayfield Road, Kirkcaldy, with the consent of the householder, a Mr Donnachie. It was agreed that these items included hammers, considered to be potential murder weapons. The initial telephone call reporting the assault had allegedly linked it to the matter of the murder. Subsequently the accused had been released without charge.

[7] Detective Constable James Leeson also gave evidence. He had become involved in the murder inquiry on 4 November 1999. He had interviewed the accused regarding the alleged assault on James Ross, which he had denied. No charge was preferred against him regarding that. He was not then a suspect regarding the murder of Bruce Connolly. The interview tape was Crown label Production 142 and the transcript Defence Production 18.

[8] Detective Constable Anthony Doriano also gave evidence. He had become involved in the investigation of the alleged drug offences on 7 December 1999. A search warrant had been obtained and executed in relation to the premises at 47 Hayfield Road. The accused and other persons had been detained under section 14 of the Act of 1995 in relation to suspected drug offences. The accused had been interviewed in relation to those matters at Kirkcaldy Police Station. Crown Production 175 was a tape recording of the interview, which had focused on drug paraphernalia found at 47 Hayfield Road. At the end of this interview, the accused had been arrested, but not charged. Crown Production 176 was the arrest form. This witness had not recovered clothing from 47 Hayfield Road. Subsequently the accused had been released.

[9] The Crown went on to lead evidence from Detective Sergeant Graham Seath. He had taken some part in the inquiries made after the discovery of the death of Bruce Connolly. He had become involved with the accused and his girlfriend, Kelly Hunter, when suspicion focused on them. On 17 December 1999, they had been detained under section 14 of the Act of 1995 in connection with suspicion of murder. This witness had cautioned the accused at the commencement of the procedure, after which he had been taken to Glenrothes Police Station. Crown Production 20 was the relevant detention form which showed that detention commenced at 7.51 a.m. There had then followed a tape recorded interview between this witness, Detective Inspector Alan Small and the accused. Crown label Production 1 was the tape recording of the first two sessions of the interview, which had ended at 10. 37 a.m. and Crown Production 23 was the relevant transcript. Thereafter, the interview was recommenced at 10.51 a.m. and again discontinued at 10.58 a.m. The tape recording of that session of the interview was Crown label Production 2 and the relevant transcript Crown Production 25. The same police officers had been involved. In this part of the interview, the accused had admitted responsibility for the death of Bruce Connolly. A fourth session of the interview took place between the same police officers and the accused between 12.07 p.m. and 12.18 p.m. on the same date. The tape recording of that was Crown label Production 3 and the relevant transcript Crown Production 27. The caution given to the accused at the commencement of that session of interview had differed from the normal form in respect that the accused had not been told that he did not require to answer the questions put. In that session of the interview, the accused had described in detail the events leading up to Bruce Connolly's death. At the conclusion of that session of the interview, the accused had been arrested. The relevant arrest form was Crown Production 21. Between the first and second sessions of the interview, the accused had been alone with this witness. At that time the accused had made certain remarks which had been regarded as significant. This witness had noted these shortly afterwards in a notebook which was Crown Production 171. Finally, in the afternoon of 17 December 1999, when the accused had been an arrested person, but had not been charged, he was again interviewed by the same police officers at the police station in Kirkcaldy. This session of the interview had taken place between 3.30 and 3.36 p.m. In it, the accused confirmed that, after the session of the interview ending at 12.18 p.m., he had shown to police officers the locations of certain items of his property, namely footwear, clothing and a key of Bruce Connolly's flat, which he had discarded following his death. After that session of the interview, of which the tape recording was Crown label Production 4 and the transcript Crown Production 29, the accused had been charged with the murder of Bruce Connolly and his robbery of certain items. He had made no reply to the charge.

[10] In cross-examination, this witness explained his position in the inquiry into the death of Bruce Connolly as being that of a "statement reader". That meant that he had read all statements taken by police officers in connection with the inquiry, with a view to identifying further lines of inquiry. He confirmed that certain inquiries had been made at Guy's Hospital in London regarding the weapons which might have been used in the murder of the deceased. Asked about the "officer's notes" attached to the witness statement, Crown Production 22, he agreed that the writers had appeared to draw certain inferences as to the circumstances of Bruce Connolly's death, in particular its time. There had existed material to suggest that the accused had been in Bruce Connolly's house on 31 October 1999, when he might have met his death. This witness did not however agree that most of the information collected by the police regarding the death had been available on 7 November 1999. The detention of the accused on that date had been undertaken in connection with an undoubted complaint on assault made by one James Ross, against the accused. This witness had had no involvement in the search of the house occupied by the accused on the date mentioned. He did not know that the police had taken possession of the accused's clothes then, or why. As regards the hammers taken by the police from 47 Hayfield Road on 8 November 1999, the witness accepted that the police suspected then that a hammer had been used in the murder of Bruce Connolly.

[11] Turning to deal with the detention of the accused on 7 November and 17 December 1999, this witness said that the words "and other crimes" on defence Production 1 had appeared as a result of instructions from the procurator fiscal at Kirkcaldy. On 17 December 1999, Detective Chief Inspector Crozier had instructed that the detention of the accused should be confined to suspicion of murder only. This witness recognised that there had also been a detention of the accused on 7 December 1999, which had been effected by officers of the Drugs Squad; it had had nothing to do with the murder.

[12] This witness was then cross-examined in detail regarding the conduct of an interview with the accused, which took place on 18 December 1999 relating to a range of offences other than the murder of Bruce Connolly. The information used by the police in that interview had been acquired during the six week inquiry into Bruce Connolly's death. The witness was next questioned in detail as to the conduct of the interview with the accused which had taken place on 17 December 1999. On the morning of that day, between 7.55 and 8.12 a.m., the accused had been fingerprinted. This witness had completed his notes as to the events of the morning in a fresh notebook which he had been given for the purpose Crown label Production 171. He agreed that under questioning between 8.27 a.m. and 9.12 a.m., the accused had stated that he did not wish to say anything, having been given legal advice to the effect that he should not do so. On the other hand, he and Detective Inspector Alan Small had wished to conduct an open interview, to check the information in the witness statement, Crown Production 22, about some of which there had been some doubt. At 9.12 a.m. there had been a break in the proceedings, which had lasted until 9.54 a.m. All of those involved had visited the lavatory and cups of tea and coffee had been obtained. During this break, a conversation had taken place between this witness and the accused, when they had been alone together, involving the making of incriminating statements on the part of the latter, which had been recorded in the notebook, Crown label Production 171. A caution had been administered by the witness to the accused when it had become apparent to the witness what was happening. This witness agreed that the girlfriend of the accused, Kelly Hunter, had been detained under section 14 of the Act of 1995 on the same day, at 7.25 a.m., on suspicion of murder, and taken for questioning to Levenmouth Police Station. He also agreed that the accused knew that morning that she had been detained, but he could not say that he knew why. He denied that unfair pressure had been brought to bear on the accused to extract the incriminating material from him, taking the form of suggestions that Kelly Hunter would have had a hard time from Bruce Connolly's girlfriends, who were inmates of Cornton Vale Prison, in the event of her being remanded in custody there. No pressure had been brought to bear on the accused, with a view to obtaining admissions. Asked to comment on the features of the second session of the interview, which continued until 10.37 a.m., namely the suggestions made by the interviewers regarding what they said the accused had said during the break and the long silences of the accused, this witness expressed the opinion that the accused had been very deep in thought. There had been no undue pressure. The accused had been quite comfortable and fit to be interviewed. The contrast between what the accused had said during the break between the first and second sessions of the interview and his position on tape could be accounted for by the fact that the accused had wanted to speak to someone about the matter under investigation, but had also realised the significance of the tape recording. This witness, who had known the accused for sixteen years, was of the opinion that the accused had been struggling with his conscience and had appeared relieved to disclose the things which he ultimately did disclose. He had not been forced to say those things. The interviewers had not unfairly played on the accused's affectionate relationship with Kelly Hunter.

[13] Between the end of the second session of the interview, at 10.37 a.m., and the commencement of the third session, at 10.51 a.m., the accused had made another significant statement, noted on page 3 of Crown label Production 171, to the effect that Kelly Hunter had had nothing to do with the matter under investigation, but that the accused had. In answer to the suggestion that Kelly Hunter had been detained and taken to Levenmouth Police Station deliberately for the purposes of applying unfair pressure on the accused, the witness said that he had had no part to play in the making of the decision to detain her.

[14] A fourth session of the interview had commenced at 12.07 p.m. on the same day. At that stage, the accused had given detailed admissions regarding his part in the death of the deceased. As the witness put it, by then he had been pouring his heart out; relief had been written all over his face. Subsequently the accused had accompanied police officers to show them where he had discarded footwear and clothing after the events leading to the deceased's death. At 3.30 p.m. there had been a further session of the interview, during which the accused had confirmed on tape what he had just done.

[15] In re-examination this witness made clear that the accused had not been told that he would see Kelly Hunter provided he confessed; he had been told that he could see her sometime, provided that she agreed. She had genuinely been a suspect in connection with the murder, because of her close relationship with the accused.

[16] The last witness for the Crown was Detective Inspector Alan Small, who had, along with the previous witness, conducted the series of interviews with the accused which took place on 17 December 1999. He had been instructed to detain the accused on that date. He spoke to documentation relating to the detention and the interviews and to their conduct. The accused had not incriminated himself in the first interview session. This witness had left the interview room at 9.12 a.m., to go to the lavatory. He had passed the previous witness and the accused in a corridor when they had also been going there. Then this witness had gone to obtain tea and coffee for those involved, returning to the interview room itself at around 9.37 a.m. Detective Sergeant Seath and the accused had then been in that room. The former had narrated to this witness the essentials of the conversation which had passed between him and the accused in the absence of the witness. The accused had confirmed that to the witness. This witness indicated that he had been told that Bruce Connolly had attempted to break into the house of the accused's father. Subsequently the accused had gone to see him regarding that; a fight had developed, which Bruce Connolly had "lost". No pressure had been placed on the accused to elicit this statement; he had been cautioned. The accused had not wanted the tape recorded interview to be resumed. When it had been, he had then proceeded to deny what he had just said. This witness went on to describe what the accused had said at the subsequent sessions of the interview. At 12.18 p.m., the accused had been arrested, but not charged. Crown Production 21 was the arrest form. No charge had then been preferred. This witness had subsequently accompanied the accused to Kirkcaldy, where the latter had pointed out the locations in which he had discarded footwear and clothing, where the items concerned had in fact been found. These were a pair of boots and a pair of trousers. No undue pressure had been put on the accused; Kelly Hunter's position had not been used to influence the accused, who had made an incriminating statement before he had been told that he could see her.

[17] In cross-examination this witness explained his approach to the conduct of the interviews. It was desirable not to put detailed information to a detained person, but rather to seek to elicit special knowledge from him. The use of the notebook was also explained. This witness had not noted things said by the accused in the break between the first and second sessions of the interview since he had hoped to have had those things said on tape. That did not happen in the event, initially at least. Crown label Production 170 was the notebook of this witness. In it he had recorded what the accused had said to him, to the effect that Kelly Hunter had known nothing of his activities; he had wanted to tell her of them. In the second session of the interview, there had been long pauses, but no undue pressure had been applied to the accused. As regards the detention of Kelly Hunter, this witness had not seen her nor had he had dealings with her. Having been asked by the accused what was to happen to her, he had said that she was to be detained and taken to Levenmouth Police Station. This witness had not told him that she was being detained on suspicion of murder. The accused had appeared to be concerned regarding her detention, but this fact had not been used as a means of putting pressure on him. No legal adviser for the accused had appeared at the time of the interview. Had he done so, he would not have been admitted to it, in accordance with ordinary police practice. The accused had appeared to be comfortable and fit to be interviewed. The detention of the accused on 17 December 1999, on suspicion of murder and no other crimes had been effected on the instructions of Detective Chief Inspector Crozier. This witness had had no part to play in an interview of the accused on 18 December 1999 in relation to other crimes. He had not mentioned the possibility to the accused of a conviction for culpable homicide, on the basis that Bruce Connolly had used a hammer first.

[18] In the trial within the trial, evidence was led on behalf of the accused, who was himself the first witness. He began his evidence by explaining that he had had a close relationship with Kelly Hunter, having lived with her for a period of about two years; he had been doing so at the time of the events with which the case was concerned. At the end of October 1999, they had been living at 31 Melrose Crescent, Kirkcaldy, but had moved to 47 Hayfield Road there around that time. He had then been an heroin addict, but was not now. Kelly Hunter had also been a user of heroin, as had Bruce Connolly, whom the accused had known all his life. They had been close friends. The accused had visited him at 53 Alexandra Street, Kirkcaldy, on 31 October 1999, arriving about 10.30 a.m. and staying all day until about 5.40 p.m. The accused agreed that on 1 and 2 November 1999 he had been selling heroin, having purchased a quantity with the proceeds of sale of stolen property. At this time, he had also been in possession of some Mogadon tablets received from Bruce Connolly. Crown label Production 42 was not the bottle which had contained these. The accused said that he had learned of Bruce Connolly's death on Monday or Tuesday, 1 or 2 November 1999, but later said it must have been on Friday 5 November, on being reminded that the body had been discovered only on Thursday 4 November.

[19] The accused confirmed that he had been detained under section 14 of the Act of 1995 on 7 November 1999 in relation to an alleged assault on James Ross and had subsequently been interviewed by police officers. They had come to 47 Hayfield Road, where the accused had by then been living, about 11.05 p.m. He had then been taken to Kirkcaldy Police Station, arriving there about 12.10 a.m. on 8 November. The accused described the clothes that he had been wearing on arrival. These clothes had been taken into police possession; on his release, he had had to return home in a paper forensic suit, his clothes not being available to him. The interview associated with that detention had commenced about 2.57 a.m. The accused's clothes had been taken by Detective Constable Stuart Welsh and another officer. At the time of his detention, the house at 47 Hayfield Road had been searched by police officers. The accused himself had not seen them removing items therefrom. He confirmed that a number of items of clothing specified in the document Crown Production 32 had been taken from his possession. On his return to 47 Hayfield Road after his detention, it had been obvious that property had been removed by the police, in particular, bedding. At the police station he had been fingerprinted and photographed. Later on the 8 November 1999, the accused agreed that he had been interviewed regarding the death of Bruce Connolly, but not on tape when detained. His witness statement, Crown Production 22, which he had been happy to give, taken by Detective Constables McEwan and Petrie, had been lengthy and detailed. He had no complaint regarding his treatment at that time. He had been under arrest but not charged.

[20] The accused agreed that, on 7 December 1999, at 7.45 a.m. he had been detained again, this time in connection with alleged drug offences. Various items relevant to such matters had been taken by the police from 47 Hayfield Road. The accused had returned home to that address on his release at 4.15 p.m. to find that a considerable number of items had been removed, including clothes, bedding and tools belonging to Steven Donnachie. He and Kelly Hunter had also been in custody on the same date. At the police interview with the accused on that date, he stated that he had been shown items of clothing and hammers from 47 Hayfield Road.

[21] The accused went on to explain that, on 17 December 1999, he had been detained yet again under section 14 of the Act of 1995. In the Reception and Detention Record in Defence Production 3 he had been described as "sober, fit and well". The reality was that, while he had been sober, he had been suffering from heroin withdrawal symptoms and pain in his face and lower jaw, which had been fractured in an accident some two weeks earlier. He had been taking antibiotics for those conditions. Indeed, he had been due to attend an hospital appointment that very day. Later in the day, following interview, the accused had been seen by a doctor in the police station, when certain treatment had been prescribed, as appeared from Defence Production 3. The accused then went on to describe the interviews conducted by the police with him that day. The accused explained that, after his detention on 7 December 1999 he had consulted a solicitor, who had advised him to say nothing more. That had been his intention, on being detained on 17 December 1999. On 17 December 1999, the accused had had no access to a solicitor until after he had been cautioned and charged with murder.

[22] As regards the events of the 42 minute break between the first and second sessions of the interview, the accused explained that he had remained in the interview room with Detective Sergeant Seath whom he had known for 16 or 17 years. A conversation had taken place between them, which lasted around 15 minutes before Detective Inspector Small returned. During the conversation there had been reference to things which had occurred in the accused's past. At first it had been a casual conversation which swung round to the incident under investigation. Reference had been made to the position of Kelly Hunter, who had been detained on suspicion of murder at the same time as the accused. The accused maintained that he had not said to Detective Sergeant Seath that he had returned to Bruce Connolly's house on 31 October 1999, or the other things attributed to him by that witness. The accused had seen no notebook in use by Mr Seath. Detective Sergeant Seath must have made up the evidence which he had given regarding this matter. After this conversation Detective Inspector Small had returned to the room, but the accused had not told him anything relating to returning to the house of Bruce Connolly. There then followed a conversation among the three individuals involved in the interview. The police officers had talked about Kelly Hunter to the accused and what he was doing to her. At 9.54am the tape recorded interview had recommenced. Thereafter an attempt had been made by the interviewing officers to cause the accused to say certain things on tape against his interest. Thereafter an alleged attempt by Bruce Connolly to break into the house of the father of the accused was raised. So far as the accused was concerned, Bruce Connolly had had nothing to do with that; the accused thought that he had been in custody at the time in question. The accused said that he had not co-operated at this session of the interview. He had tried to black it out of his mind and did not answer questions. The accused went on to explain that he felt terrible all morning because he had not recently had access to heroin. Furthermore, his jaw was sore and the bottom part of his left eye was swollen and closed up. His face had been throbbing with infection. This session of the interview came to an end at 10.37am and a further tape-recorded session commenced at 10.51am, the transcript of which was Crown Production 25. Between these two sessions of the interview, the accused had remained in the interview room. The police officers present had made suggestions to him. In particular, if the accused were to accept that he had gone to Bruce Connolly's house and had engaged in physical violence with him, the result might well be a conviction for culpable homicide, rather than murder, in view of Connolly's behaviour. Detective Sergeant Seath had suggested that. By this stage, the accused said that he had decided what he was going to do, in order to protect the position of Kelly Hunter; in particular he intended to "come out with a story", which he had made up. Accordingly the incriminating things said in the session of the interview between 10.51 and 10.58am were untrue. Asked about the fourth session of the interview between 12.07 and 12.18pm, of which Crown Production 27 was a transcript, the accused stated that the detailed account of an assault by him on Bruce Connolly contained in it was a false story which he had put together.

[23] The accused was then asked about the fifth session of the interview of which Crown Production 29 is a transcript. This had followed the pointing out by the accused of the locations of various items of his footwear and clothing. These items had in fact been put in the positions in which they were found by the accused because they had become soiled with "vandal grease" on the occasion of one of the accused's escapades. He had thrown them away three or four weeks before 17 December 1999. In the transcript Crown Production 29, questions had been asked regarding a hammer. The accused said that he had given a description of a hammer in that interview, which was simply a description of "any old hammer". In advancing these false accounts of events to the police, the accused said that he was mainly thinking of the position of Kelly Hunter, who was a timid girl. If she had been charged with murder, the police had said that she would have been remanded in custody to Cornton Vale Prison, where there had been a number of female suicides; Bruce Connolly's girlfriends were inmates there.

[24] In cross-examination the accused said that in November 1999 he had been heavily addicted to heroin. If the supply were cut off, withdrawal symptoms would be suffered. The accused accepted that he was an experienced criminal, a circumstance which had been raised on his own behalf. He had lied to the police about criminal activities in the past. He agreed that what he was saying was that Detective Sergeant Seath had lied on oath. The accused said that he had always been willing to assist the police in their inquiries into the death of Bruce Connolly. Had he not been under detention, he would have attended at a police station voluntarily, in order to give a witness statement. The accused agreed that if he had identified someone as having broken into his father's house he would have dealt with them. He agreed that he had been making inquiries regarding such an event. As regards the evidence of Detective Sergeant Seath, the accused said that he was unable to explain why that witness would tell lies about his behaviour during the break between the first and second sessions of the interview. As regards the passage at the bottom of page 4 of Crown Production 27, the accused said that the reply which he had given was a figment of his imagination. Asked whether he was saying that, during the sessions of the interview in which he had made admissions, he had been unfit to be interviewed, he replied that he had felt better than he did at that time. However, he had known what was going on and had understood the questions asked. He had been able to answer those questions. He agreed that he had not told the police at the time of the interview that he was not well. Later on 17 December 1999 he had seen a doctor and received medication from him. The accused agreed that it appeared that the injuries sustained by Bruce Connolly had in fact been caused by a hammer or similar instrument. As regards the leather jacket which had been referred to in evidence, the accused had told the police that he had worn it when he had gone to Bruce Connolly's house on 31 October 1999. The police had now known about it. Upon the assumption that it bore Connolly's blood, the accused said that Bruce Connolly must have worn it at some time. As regards the items of footwear and clothing pointed out by the accused on 17 September 1999, he said that they had been discarded in September 1999. It had come into his head that use might be made of them when he was telling his "story" to the police. The accused said that he had heard about the death of Bruce Connolly from Wayne Ross. The accused insisted that the story which he had told the police was untrue. He agreed that he had been treated fairly by the police officers on tape, but when the tape recording was not running he had been subjected to plenty of pressure. The position of Kelly Hunter had been used to force him to make false admissions. In re-examination, the accused repeated that he had felt weak at the time of the interviews and had suffered hot and cold flushes on account of heroin withdrawal symptoms. However, he made clear that he was not saying that he should not have been interviewed. He agreed that he had not complained about the state that he was in to the police at the time.

[25] Detective Chief Inspector Thomas Frederick Crozier was the other witness led on behalf of the accused. He had been the officer in charge of the investigation arising out of the death of Bruce Connolly, of which he had become aware on 4 November 1999. He agreed that he had managed the inquiry, in which, at certain times as many as forty people were engaged. He explained how an investigation of this kind was conducted, making reference to the "Homes" computerised database. This witness made clear that the accused and Kelly Hunter had been witnesses whom the police had had to interview, since they had been the last to see Bruce Connolly alive. On 8 November 1999 the accused had been an arrested person, in connection with a matter which was unrelated to the murder inquiry and the opportunity was therefore taken to interview him as a witness. This witness said that the accused's clothes had been taken from him at that time, but that had not been done on the authority of the witness. As regards the taking of the accused's clothes at this time, this witness understood that they had been taken in connection with the inquiry into the alleged assault on James John Ross, which was the subject of the interview on 8 November 1999. That having been done, it had been decided that these items should be retained in connection with investigations into the death of Bruce Connolly. This witness gave evidence about circumstances in which samples of D.N.A. and fingerprints might be taken from a person detained under section 14 of the 1995 Act. As at 7 November 1999 that could have been done by a constable. Now, however, the authority of an inspector or more senior officer was necessary. As regards the detention of the accused which occurred on 17 December 1999, on suspicion of murder, the witness agreed that it had been his decision to cause attention to be focused on that allegation. This witness agreed that, in due course, suspicion of responsibility for the murder had focused upon the accused some little time before 7 December 1999. However, on 7 November 1999, the accused had definitely not been a suspect for the murder. At that time there had been no suspects, since the police were then in possession of only the most sketchy information concerning the offence. Asked about the alleged assault on James John Ross, this witness denied that that had been a pretext for taking items of property from the accused which were required in connection with the murder inquiry. There had been no conspiracy between police officers to effect that. When it was put to this witness that the first and second detentions of the accused had been on suspicion of murder, the witness denied that that had been the case. There had been genuine and different reasons for those detentions.

[26] Following upon the leading of the foregoing evidence, submissions were made to the Court concerning its effect. Mr Keegan, on behalf of the accused, recognised that the issues in the trial within the trial had been raised by the accused, but it was for the Crown to show that the evidence objected to was admissible. Two main submissions were to be made: (1) that the detention of the accused on 17 December 1999 was unlawful, because he had previously been detained in connection with the same circumstances as those in respect of which he was detained on that date; accordingly his detention on that date fell foul of section 14(3) of the Act of 1995; and (2) that the circumstances of the questioning of the accused on 17 December 1999, particularly the circumstances in which a confession was said to have been made, were such as to render the admission of the resulting material unfair to the accused. Mr Keegan recognised that the first submission did not affect what had been said by the accused following his arrest; however, that material was affected by the second submission. In connection with the first of these submissions, it was argued that if the detention on 17 December 1999 was in fact unlawful, it followed that anything of an evidential nature taken from the accused during that detention was inadmissible in evidence. In that connection reference was made to Tonge & Others v HM Advocate, 1982 S.C.C.R. 313; Scott v Howie 1993 S.C.C.R. 81; and Grant v HM Advocate 1989 S.C.C.R. 618. If, by virtue of an unlawful detention, the accused had believed that he was under necessity of co-operating with the conduct of a police interview when in fact that was not the case, any admissions made ought not to be admitted in evidence. It was accepted that, in the past, there had been arguments as to the recording requirements associated with detention and the effect on the admissibility of evidence of failure to comply with them. In that connection reference was made to Forbes v H M Advocate 1990 J.C. 215. It might be that, if the provisions of the Act of 1995 had been departed from, any material elicited during an unlawful detention should not be admitted as a matter of fairness.

[27] Turning to the factual basis for the first submission, Mr Keegan pointed out that, prior to 17 December 1999, there had been two distinct detentions under section 14 of the Act of 1995. The first of these had commenced on the 7^th and concluded on 8^th November 1999. The basis for that detention had been a suspicion that the accused had committed "assault and other crimes". There had been an interview in the early hours of 8 November 1999, in which no victim of any assault had been mentioned and no details of the alleged assault had been put to the accused. Subsequently he had been arrested, but not charged. His clothes had been taken from him. Later on the same date, he had been interviewed as a witness in connection with the inquiry into the death of Bruce Connolly, that interview having been recorded in the witness statement, Crown Production 22. Mr Keegan made clear that, while his original objection had embraced that document, he now considered that that objection could not be sustained, since the accused had stated that he had been willing to co-operate with the police in regard to that matter. Mr Keegan agreed that there could not be a valid detention in respect of "other crimes", which were unspecified, but the crime of assault had been specified as the basis for the detention and the alleged victim, Mr James Ross, had made a complaint of assault against the accused to the police. Accordingly, there had been a proper detention on that occasion. However, what occurred gave rise to the certain concerns. Samples had been taken from the accused, including a D.N.A. swab and certain items of property had been removed from the premises occupied by the accused at 47 Hayfield Road, Kirkcaldy, as appeared from the reports Crown Productions 32 and 34. The police position appeared to be that the items concerned were potentially relevant evidence in relation to the allegation of assault. However, it was difficult to accept that that was the case since all of the clothes belonging to the accused had been taken following the detention. The accused had had to return home on his release in a paper suit.

[28] In section 14(3) of the Act of 1995 the words which were important for the present purposes were "on any grounds arising out of the same circumstances". Those words ought to be given a wide interpretation. It was contended that the word "circumstances" embraced the detention as a whole and all that occurred during its currency. However, the argument for the accused did not fail if a narrower view was taken of the expression concerned, to the effect that the "circumstances" referred to were confined to circumstances pre-existing a detention which gave rise to the reasonable suspicion on the basis of which the detention occurred. In the evidence heard in the trial within a trial, the view had been expressed that the complainer James Ross had been assaulted by the accused because he had alleged that the accused had committed the murder of Bruce Connolly. There was thus a direct connection between the circumstances of the first and the last detentions. As regards the last detention on 17 December 1999 there had been considerable discussion in evidence as to the grounds on which it proceeded. The stated suspicion was that the accused had committed the crime of murder. However, it appeared from defence Production 3, the detention form A relating to that detention, that the circumstances giving rise to the suspicion were "evidence from numerous witnesses and forensic evidence". The forensic evidence there referred to could well have included material gathered at the time of the first detention and subsequently. The point being made on behalf of the accused was that the police had taken advantage of the detentions on 7 and 8 November and 7 December 1999, which were themselves lawful, to further the murder investigation. The accused had de facto been detained earlier than 17 December 1999 in respect of the murder of Bruce Connolly.

[29] Turning to the second main submission on behalf of the accused, Mr Keegan recognised that there was a considerable volume of case law on the issue of fairness to the accused in relation to statements made by an accused person. These demonstrated that the circumstances of each case had to be examined and a conclusion reached as to whether a confession had been obtained fairly. He referred generally to Her Majesty's Advocate v Aitken 1926 J.C. 83. The kind of factors which were relevant to such a consideration included the youth of the individual concerned, their vulnerability, any abnormalities, any warnings given, the lack of legal advice, and whether advantage had been taken of an accused person by the police. It was accepted that the tape recordings of interviews would give a flavour of what had occurred. In the present case, Detective Sergeant Seath had known the accused for over 16 years. He had taken advantage of a chat which had occurred in the 42 minute break to evoke statements from the accused of an incriminating nature, to the effect that Kelly Hunter had known nothing about the incident which ended with Bruce Connolly's death. The accused, whose evidence should be accepted in this respect, had said that he had been led into the conversation by suggestions made by Detective Sergeant Seath and Detective Sergeant Small to the effect that he had returned to the home of the deceased on 31 October 1999; that there had been a fight over the attempted break-in to the home of the accused's father and that the accused had assaulted and killed Bruce Connolly. The police evidence concerning this conversation possessed certain shortcomings. One might have expected that Detective Inspector Small would have recorded in his dedicated notebook the information said to have been given to him by Detective Sergeant Seath, concerning the details of the conversation which the latter had had with the accused. In any event, the Court should accept the accused's version of events which was that no such confession had in fact been made at that time. Although the original objection taken on behalf of the accused to the line of evidence had not been expressed so as to cover things said in an informal conversation in the 42 minute break, it was the accused's position that the objection related to those matters. At this point the Advocate Depute indicated that he did not have any problem with that position.

[30] There were a number of authorities relating to the admissibility of what might be described as statements made in the course of informal discussions between an accused person and the police. In Jack v Her Majesty's Advocate 1999 S.C.C.R. 296, material forming part of an informal conversation between an accused person and a police officer had been held to have been unfairly obtained and therefore to be inadmissible. However, in Bell v His Majesty's Advocate 1945 J.C. 61, the opposite view had been taken. In His Majesty's Advocate v Rigg 1945 J.C. 1, an informal statement had been held to be inadmissible; a relevant factor had been the seriousness of the charge involved.

[31] In the present case undue pressure had been applied to the accused during the course of the interviews which took place in the morning of 17 December 1999. It had been obvious to the accused that his girlfriend, Kelly Hunter, had also been detained on suspicion of murder and was facing a possible charge of murder. The accused's evidence relating to the remarks attributed to the police officers involved regarding what might happen to her in Cornton Vale Prison should be accepted. That evidence showed that the position of Kelly Hunter was being used as a lever to apply pressure to the accused.

[32] Other relevant factors to be considered in the present case were the state of health of the accused and the effects of his addiction to heroin. At the material time, the accused had been in discomfort on account of his broken jaw and the associated infection in his face. Furthermore, he had been suffering to some extent from heroin withdrawal symptoms. In the original objections prior to the trial within the trial, the point had been made that the caution administered at the start of that part of the interview which was recorded in Crown Production 27, was defective. That objection was not insisted in, having regard to the considerable number of other cautions which had been administered to the accused in appropriate terms. However, the contents of that particular session of the interview indicated the use of Kelly Hunter as a means of bringing pressure to bear on the accused. The proper approach which the Court should take was to consider all of the various factors relied upon together, as had been done in Codona v Her Majesty's Advocate 1996 S.C.C.R. 300. The strategy followed by the police in this case in relation to the interviewing of the accused had been unfair and any admission solicited by them should not be admitted in evidence. The objection taken to the admission in evidence of the contents of the transcript Crown Production 29 was not maintained for the reasons explained.

[33] On behalf of the Crown, the Advocate Depute invited me to repel the remaining objections which were insisted in. At the outset, he pointed out that certain concessions had been made. In particular no objection was now maintained to the admission of Crown Productions 22 and 29.

[34] Dealing firstly with the detention issue, it was submitted by the Advocate Depute that the word "circumstances" in section 14(3) of the Act of 1995 related to the ground of detention which pre-existed the commencement of the detention; the circumstances were those matters which gave rise to the reasonable suspicion referred to in section 14(1). The word did not embrace the features of the detention itself. It also had to be recognised that there was no rule of law preventing the use by the prosecuting authority of evidence obtained for one purpose for another. If therefore the police had ultimately made use of evidential material obtained in connection with the alleged assault on James Ross, which had resulted in the detention of 7 November 1999, for the purpose of supporting another case, that was not open to criticism. In any event, the evidence available to the Court did not support the suggestion that there was a connection between the "circumstances" given rise to the detention on 17 December 1999 and the "circumstances" giving rise to any earlier detention. The fact that there had been hearsay evidence relating to the reason why James Ross had been allegedly assaulted did not result in a coincidence of "circumstances".

[35] Turning to the issue of fairness to the accused in relation to the interviews of 17 December 1999, it was important that the whole circumstances of the interviews should be considered. The test of fairness was one of fact and degree for the Court, as appeared from McClory v McInnes 1992 S.C.C.R. 319. It should be recognised that in dealing with the accused, the police had not been dealing with someone who was unfamiliar with police procedures. It had been accepted on behalf of the accused that he had been well acquainted with such matters by virtue of his previous experiences. That was a matter of some significance. Furthermore, despite the fact that reliance had been placed upon his physical condition at the time of the interviews, no complaints had been made to the police at the time to the effect that he had been unfit to be interviewed. Indeed, in his evidence, the accused accepted that no complaint had been made and, while he said that he had felt unwell, he did not claim that he had in fact been unfit to be interviewed. So far as the position of Kelly Hunter was concerned, there was nothing to suggest that her detention on 17 December 1999 had been engineered for the purposes of providing police officers with a lever with which to exert pressure upon the accused. Her detention on that date had been perfectly justified and genuine, having regard to the close relationship that had existed between the accused and her and the fact that they had been the last persons to see Bruce Connolly alive. Her detention had been conducted quite separately from that of the accused; she had been taken to a different police station. As regards the conflict of evidence between the accused and Detective Sergeant Seath and Detective Inspector Small, the Court should prefer the evidence of the latter witnesses. It should not conclude that they were wicked liars, as suggested by the accused. It was part of the accused's case that the confessions which he did admit having made were false and had been made for the purposes of protecting Kelly Hunter. That position was not consistent with the kind of language used by the accused, recorded in Crown Production 27 at page 4. In all the circumstances, the admissions had been fairly obtained.

[36] During the course of the argument before me, it was recognised both by Mr Keegan and the Advocate Depute that while the former was advancing arguments in support of this objection to the admission of the evidence concerned, the onus in fact lay on the Crown to show that the evidence could properly be admitted, the issue of its admissibility having been raised on behalf of the accused. I therefore proceed upon that basis. In these circumstances Mr Keegan's primary submission was that, on a proper view of the facts as elicited, the Crown could not show that the evidence concerned was admissible. As I have narrated, in elaboration of his position, Mr Keegan advanced two main arguments. I shall deal with these two arguments in turn.

[37] It appears to me that the first of these arguments requires the Court, at the outset, to reach a correct interpretation of the terms of sub-section 14(3) of the Act of 1995, in its statutory context. That sub-section provides as follows:

Thus the prohibition is against any further detention under sub-section (1) "on the same grounds or any grounds arising out of the same circumstances" as were involved in the previous detention. It will be obvious from my narrative of the arguments advanced that no authority was placed before me elucidating the precise scope of the words of the sub-section. In these circumstances it is necessary to consider those words themselves in their statutory context. It appears to me that the words "the same grounds" in sub-section (3) must refer to the "reasonable grounds for suspecting that (the) person has committed or is committing an offence punishable by imprisonment", referred to in sub-section (1). In the context of an actual detention, those grounds, I consider, must exist in relation to the particular offence suspected as having been, or being committed. Thus the first basis for the sub-section (3) prohibition, it seems to me must raise the question of whether a later detention involved those same grounds, namely grounds for suspecting that the same particular offence had been, or was being committed, as had been involved in an earlier one. As I understood the position of the parties, it was not suggested that that situation had existed here, nor do I think it could have been. The detention of 7 November 1999 occurred because of grounds for suspecting that the accused had assaulted a James Ross, who had reported such an assault to the police. While the relevant detention form A contains a reference to "assault and other crimes", the evidence showed that the detaining officer, Detective Constable Stuart Welsh, having completed the form, used those words in accordance with a supposed instruction requiring that, to cover a situation where a detainee might reveal in an interview during detention in respect of one crime responsibility for some other crime in respect of which the detention had not been commenced. He stated that the words had certainly not been intended to embrace the murder of Bruce Connolly, for which the accused was not then a suspect, and I have no hesitation in accepting that evidence. The detention of the 7 December 1999 occurred because of a police suspicion that the accused had committed offences under the Misuse of Drugs Act 1971, based on information received, as appears from the relevant detention form A. That position was confirmed by the detaining officer, Detective Constable Anthony Doriano, whose evidence I have no hesitation in accepting, who had had no involvement with the inquiry into the death of Bruce Connolly.

[38] In these circumstances, in the course of the argument before me attention came to be focused upon the second basis for the sub-section (3) prohibition, enshrined in the words "or on any ground arising out of the same circumstances". In my opinion, having regard to the context, the "circumstances" referred to in that part of sub-section (3) must be those circumstances, on the basis of which the constable referred to in sub-section (1) had formed the view that he had "reasonable grounds for suspecting that (the) person (had) or (was) committing (the) offence ..." and had therefore initiated a detention. Ex hypothesi those circumstances must have been in existence, at the latest, immediately before the initiation of the detention. It follows from this conclusion that I reject the contention of Mr Keegan that the word "circumstances" embraced the detention as a whole and all that occurred within its duration. Thus I consider that the fact that samples taken, or pieces of real evidence acquired, at the time of the earlier detentions may have been utilised in the inquiry leading up the accused's final detention on 17 December 1999, on which, in any event, I consider no firm conclusion can be reached on the evidence, is not a matter of significance. Mr Keegan pointed out that there was evidence to suggest that the alleged assault by the accused on James Ross, the offence which was the basis for the first detention of the accused, may have been committed because the complainer, James Ross, may have asserted that the accused was the murderer of Bruce Connolly. Accordingly he argued that there was a set of circumstances common to the first and third detentions. I disagree with that contention. The material concerned must in my view relate only to a possible motive for the alleged assault by the accused on James Ross, as opposed to the circumstances out of which arose grounds for suspecting that the accused had in fact committed the assault on James Ross. Mr Keegan also founded on the terms of the detention form A relating to the detention of the accused on suspicion of murder on 17 December 1999, where it is stated that the circumstances giving rise to the suspicion were "evidence from numerous witnesses and forensic evidence. The argument was that the forensic evidence referred to might have included material gathered on 8 November and 7 December 1999. Hence there was an overlap of circumstances. With that contention also I disagree. If I am right as to my interpretation of the scope of the word "circumstances", where it occurs in sub-section (3), it follows that samples taken and pieces of real evidence gathered in following detention are not part of the "circumstances", out of which arose the "grounds for suspecting" relating to the previous detentions. Mr Keegan also made certain points concerning possible failures following the first and second detentions to observe the requirements of section 18 of the Act of 1995. Whatever may be the position regarding that, in my view, there is no evidence to show that any evidential material associated with any such possible failures constituted part of the "circumstances", within the meaning of section 14(3), forming the basis for the third and final detention of the accused. In the whole circumstances, the conclusion I have reached is that the detention of 17 December 1999 was lawful. Accordingly the basis for the first main argument in support of the objection taken disappears. It is therefore unnecessary for me to consider the merits of the contention that formed part of the first main argument, to the effect that, if the detention was unlawful, it followed that any alleged confessions made during the interviews which occurred during it were inadmissible in evidence, on which I express no view.
[39] I turn now to consider the second main argument advanced by Mr Keegan, to the effect that admission in evidence of the alleged confessions made on 17 December 1999 would involve unfairness to the accused. I did not understand there to be any serious dispute between the parties as to the approach which the law required should be followed. The issue was simply whether the admission of the alleged confessions would involve unfairness to the accused. A decision had to be reached in light of the circumstances of a particular case. There were many reported decisions on this kind of issue, the circumstances of which were very varied. Relevant factors included the youth, or vulnerability of the accused, the warnings given to him, the availability of legal advice, and the seriousness of the offence alleged. (His Majesty's Advocate v Aitken and His Majesty's Advocate v Rigg). As regards informal conversations between an accused person and a police officer, circumstances could vary. Jack v Her Majesty's Advocate was a case where the admission of remarks made in such conversation was considered to have been unfair and objectionable. Bell v His Majesty's Advocate was an example of the admission of such material. The issue of fairness was essentially one of fact and degree, as appeared from McClory v McInnes at p. 322. So far as suspects under detention are concerned, the boundaries of legitimate questioning were elucidated in Codona v Her Majesty's Advocate.

[40] It will be apparent from my summary of the evidence in this trial within a trial that there was sharp conflict between the evidence of Detective Sergeant Graham Seath and Detective Inspector Alan Small, on the one hand, and the accused, on the other, as regards events in the 42 minute break between the first and second sessions of the interview between them and the accused and certain other matters. Their version of events, involving firstly the making by the accused spontaneously of remarks indicating that Kelly Hunter had had nothing to do with the death of the deceased but that he had to Detective Sergeant Seath and their repetition to Detective Inspector Small, contrasts sharply with the accused's evidence that no such remarks were made. There is a similar conflict of evidence concerning the events in the break between the second and third sessions of the interview. Having carefully assessed the evidence of these witnesses, I conclude that the evidence of Detective Sergeant Seath and Detective Inspector Small is to be preferred to that of the accused. In my estimation, Detective Sergeant Seath gave his evidence in a straightforward and convincing way. I am quite unable to accept that he is the wicked liar which he must be on the accused's versions of events. As regards Detective Inspector Small, likewise I found his evidence quite straightforward, measured and convincing. I cannot conclude that he also is a wicked liar. On the other hand, I did not find the accused an impressive witness. From time to time his demeanour seemed to suggest to me that he did not really believe what he was saying on disputed matters. Further, his suggestion that the apparent confessions which he made at later stages of the interview on tape were false and designed to protect Kelly Hunter alone, does not appear to me convincing. His mode of expression at those stages of the tape recording was much more convincing, indicating to me that then he was speaking the truth. An example of that is the passage at the bottom of page 4 of Crown Production 27. In these circumstances, I conclude that the accused did indeed spontaneously make the admissions attributed to him by Detective Sergeant Seath during the 42 minute break between the first and second sessions of the interview, which were then repeated to Detective Inspector Small. That matter was hastily recorded in the notebook of Detective Sergeant Seath, Crown Label Production 171, which I consider a genuine, if abbreviated, account of what occurred. I do not consider that the fact that Detective Inspector Small did not record what was later narrated to him by Detective Sergeant Seath as of particular significance. As Detective Inspector Small himself explained, he might have done so but did not, regarding it as more appropriate then to question the accused about the matter later on tape, as he did in fact.

[41] The three main factors which appear to me to bear upon the issue of the fairness of the admission of the interviews are (1) the position of Kelly Hunter vis à vis the accused, (2) the mental and physical state of the accused at the material time, and (3) the manner and conduct of the interviews themselves. Dealing with the first of these, I can readily accept that, at the time of the interviews under consideration, there existed an intimate and affectionate relationship between the accused and Kelly Hunter. Furthermore, I am prepared to accept that, when the accused himself was detained and interviewed on 17 December 1999, he knew that she had been detained, also on suspicion of murder, and was under questioning at Levenmouth Police Station. In these circumstances, I consider it very likely that at the time of his own interviews he would have been naturally anxious and concerned about her position. As regards the second main factor mentioned, undoubtedly the accused had a facial infection and injury at the material time. His jaw had apparently been broken some weeks before and there had developed also some infection of the face, for which he had been receiving treatment. The conditions, I accept, did result in some level of discomfort at the material time. However, as to that, I observe that, at the time, no complaint was made by him to the effect that he was unfit to be interviewed, although the records which are part of Defence Production 3 show that, in the early evening of 17 December 1999, the accused was attended by Dr Briggs, who prescribed certain medication for the infection and discomfort. I should record in this connection that in his evidence the accused did not appear to suggest that he had been unfit to be interviewed. A further matter relevant to this aspect of the case is the situation of the accused at the material time in relation to heroin. I am prepared to accept that at that time he was a regular user of heroin by the method of smoking or burning, not injection. It is difficult to assess the extent to which he may have been addicted to this substance. He claimed to have been suffering from withdrawal symptoms at the material time. However, I am not prepared to conclude that these were of great severity. Once again he did not suggest that he was unfit, on this account, to be interviewed and was plainly able to sustain quite a long period of questioning, followed by the step of directing the police to the locations in Kirkcaldy where he had discarded items of footwear and clothing which were regarded as of significance.

[42] Coming now to the manner and conduct of the interviews themselves, having heard the tape recordings, my view is that the handling of the questioning by Detective Inspector Small and Detective Sergeant Seath was not prima facie overbearing or oppressive. In the second session of the interview after page 20 of Crown Production 23, the accused, in some instances, paused for considerable periods of time before answering questions and sometimes did not answer them at all. This occurred following the 42 minute break and the informal conversation to which I have referred. I do not attribute this to any unfitness on the accused's part, but rather to the situation in which he was giving serious thought to what he should do, having regard to the position of Kelly Hunter. Following that, he decided to reveal his part in the matters under investigation, as recorded in Crown Production 25 and Crown Production 27. I regard the evidence of Detective Sergeant Seath in this connection as significant. He described visible relief on the part of the accused when he disburdened himself of the information recorded in Crown Production 27. That appears to me to show that the accused had, by then, decided to make a full disclosure of his part in the matter. As regards the suggestion that the position of Kelly Hunter was used by Detective Inspector Small and Detective Sergeant Seath as a "lever" to exert unfair pressure on the accused, my assessment of the evidence which I heard and my reading and hearing of the interviews do not confirm that. In particular, I am unable to accept that the interviewing police officers made the remarks attributed to them regarding what might happen to Kelly Hunter if she were to have been remanded in custody in Cornton Vale Prison.

[43] In the whole circumstances, taking all the foregoing factors into account, my conclusion is that it would not be unfair to the accused for the material objected to to be admitted in evidence. For all these reasons, I shall repel those objections which have been insisted in and not withdrawn.

[44] Before parting with this matter, I feel bound to make certain observations about the appropriateness of the procedure which I have just conducted, in the context of an ongoing trial. The objection which resulted in the trial within the trial was taken on 22 February 2001. After a brief discussion, I concluded that the holding of a trial within a trial was inevitable. That trial within a trial continued from day to day. The evidence in it was concluded on 1 March 2001 and legal submissions were heard on 2 March 2001. Since I considered it necessary to take time to reach and formulate a decision, the matter was adjourned over the weekend until the morning of 5 March 2001, when I issued my decision. Thereafter, unfortunately the evidence in the trial itself could not be resumed on account of the failure of certain witnesses to attend on that date. Accordingly the trial itself was resumed on 6 March 2001. I am driven to conclude that the procedure which I have described must have been highly disruptive so far as the jury were concerned. Since the precise duration of the trial within the trial was uncertain throughout, the jury were instructed to keep in telephone contact with the court authorities, with a view to being told when they should make themselves available for the resumption of the trial itself. Thus, for a period of more than a week, they were kept in a position of uncertainty. Furthermore, their recollection of the evidence which they had heard before the trial within the trial must to some extent have been damaged by the lapse of time.

[45] I should say that the only other experience which I have had of a trial within a trial since the decision in Thompson v Crowe 2000 JC 173 was of a similar character; the trial within the trial there involved lasted for a similar period of time with similar likely consequences. In these circumstances, it appears to me that it would be appropriate for those charged with the responsibility of keeping under review our system of criminal procedure to consider whether arrangements should be made under which issues requiring to be determined at a trial within a trial under solemn procedure should be determined prior to the empanelling of the jury, either when the trial diet is called first, or even before the trial diet at a special diet established for the purpose. If that were to be done, plainly disruption and inconvenience to the jury of the kind experienced in this case would be avoided. It might be thought that there would be difficulty in foreseeing the need for a trial within a trial in advance of the commencement of the trial itself. While that might be so in some cases and any new arrangements would require to take account of that, in many cases the need for a trial within a trial becomes evident as soon as preparations for the trial itself have been made. In any event, I understand that arrangements of the kind mentioned already exist and are satisfactorily operated in England for the determination of such issues, taking the form of the voir dire procedure. It appears to me that the creation of such arrangements in Scotland would almost certainly require legislation. However that might be a small price to pay for the avoidance of the serious disruption of trials which the present procedure involves.