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LB v. Her Majesty's Advocate [2003] ScotHC 15 (11 April 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Osborne

Lord McCluskey

XC346/02

OPINION OF THE COURT

delivered by LORD McCLUSKEY

APPEAL

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: D.S. Burns, Q.C., J. Carruthers; Mathie, Morton, Black & Buchanan

Respondent: A. Turnbull, Q.C. A.D.; Crown Agent

11 April 2003

[1] On 3 July 2002, the appellant was convicted at the High Court in Glasgow of rape. On 31 July 2002 he was sentenced to be detained for a period of four years, with an extension period of three years.

[2] The victim, then aged 16, had been out with some friends in Ayr on the evening of 7 September 2001. She returned to New Cumnock on a bus on which the appellant, then aged 14, was a passenger. The evidence that the jury accepted was to the effect that the appellant and she sat together on some swings in a park after they got off the bus. The appellant tried to kiss her and when she resisted he pushed her to the ground and raped her. Shortly after the assault, which took place about 11 p.m., the girl, who was distressed, told friends that she had been raped: her father collected her and the matter was reported to the police, to whom she gave the name of the appellant as her assailant. There was corroborative evidence, including medical evidence of injuries that she had sustained. As a result of her complaint the police called at the appellant's house at about 3 a.m. on 8 September 2001. The appellant agreed to go with the police to the police station and did so accompanied by his mother and father. He remained there voluntarily and was interviewed by two detective officers, in the presence of his mother.

[3] At the trial before the Crown case was closed the Advocate depute tendered to the court evidence of the contents of the police interview which had been recorded on tape. Having heard evidence in a trial within a trial the trial judge admitted evidence of the interview. In it the appellant denied that he had had intercourse with the girl and also made allegations about her behaviour. The appellant's sole ground of appeal to this Court was that the trial judge should have refused to admit evidence of the contents of the interview as evidence that the jury could consider. It was argued that the interview had been obtained unfairly. It was also argued that the evidence objected to was highly prejudicial to the jury's assessment of the appellant's credibility, which was likely to have been an important issue. Accordingly the decision of the trial judge to admit the evidence that should have been excluded had resulted in a miscarriage of justice.

[4] It was not in dispute that the appellant was in bed when the police arrived at the house, having gone to bed some 21/2 to 3 hours earlier. He consented to go with the police to Ayr Police Station for interview and was accompanied to the station by his father and mother. The interview lasted from 4.35 a.m. until 5.49 a.m. with a break between 5.09 a.m. and 5.41 a.m. Two detective officers, Constables Colville and Downie, conducted the interview. The appellant's mother was present throughout. His father was said to be in an excited and irrational state and, though in the police station, was not present during the interview. It is said in the grounds of appeal, and the trial judge accepts the accuracy of these assertions, that the appellant, while in the police station, was tired and unfamiliar with the procedure adopted in relation to the interview. He was not offered any refreshment other than water. The appellant's mother was not qualified to advise the appellant about how he should conduct himself at the interview. It is accepted in the grounds of appeal that in the course of the interview the appellant made a false denial of having had intercourse with the complainer and made an unfounded attack on the character of the complainer.

[5] When objection was taking to the leading of the evidence of the interview, the trial judge properly decided that it was for him to determine the question of admissibility and ordered that evidence be heard outwith the presence of the jury. A "trial within a trial" was then held. The two police officers gave evidence, as did the appellant and his mother. The appellant also led evidence from Dr. Jack Boyle, a psychologist, who spoke about the appellant's verbal IQ and his ability to understand the caution. (Reference is made later to Dr. Boyle's evidence as to an alternative form of caution). Evidence was also led from Dr. Lorraine Johnston, a clinical psychologist, who spoke of research carried out on young offenders, which illustrated that such persons, when of similar ability to the appellant, were unlikely to understand in whole or in part the caution administered to them at the beginning of such an interview. The Crown led no expert evidence.

[6] At the conclusion of the hearing of evidence counsel for the appellant and the Advocate depute made submissions to the trial judge on the admissibility of the evidence of the contents of the police interview. After hearing their submissions, the trial judge said that he would give his decision briefly. He said that he had noted that it was a matter of concession that the police were entitled to take the appellant from his home at the time when they did and added,

"The only issue that has been argued in some detail to me was whether what thereafter took place was fair and more particularly whether the Panel understood the caution which was given to him. I propose to allow the interview to go to the Jury. I am unpersuaded that what took place was in any way unfair and where the evidence of the Defence differed from that of the police, I prefer the account given by the detectives who were alert and attentive to what they were doing at the time. I am going to let the matter go ahead which will mean the jury will hear the tape".

[7] On behalf of the appellant, Mr David Burns, Q.C. informed the court that the evidence given at the trial within the trial was not all repeated before the jury. Thus the defence did not invite the jury to disregard the evidence of what happened in the interview, or treat it as of little weight, on the basis that it had been unfairly obtained. Counsel submitted that because, when giving evidence at the trial, the appellant admitted that he had had intercourse with the girl on the occasion libelled and claimed that the girl had consented to it, the leading of evidence that, within a few hours of the event, he had lied to the police when they questioned him about the matter, was obviously highly prejudicial to his credibility. Counsel made it clear that no complaint was made about the manner or style of the interview or of any other step taken by the police. It is stated, however, in the grounds of appeal that the appellant had a verbal IQ of around 74, that he had difficulty in understanding "concepts such as the common law caution", that he did not in fact understand the common law caution administered to him, and also that "it is likely that he did not understand in part or full the caution, which was administered to him"; that accordingly he had no notice or understanding of his right to silence and "could not exercise it". It was conceded that the police had no knowledge of the appellant's verbal IQ. However, having regard to the age of the appellant, the time of night when the interview took place, his low verbal IQ and the evidence of the inability of the appellant to understand the caution and the purpose of the interview and his rights, to admit the evidence of what took place at the interview was unfair, and this, it was submitted, resulted in a miscarriage of justice. Mr Burns at one stage suggested that, apart from the mother, there was no other "appropriate adult" present; but this point was not pressed. He also acknowledged that, before the tape recorder was switched on and the formal interview began, the police had given explanations to the appellant in the presence of his mother as to what were to be the purpose and character of the interview. Counsel made it clear that the real focus of the objection was the fact that the caution given to the appellant was in the usual terms; but the evidence led for defence showed it to be likely that the appellant could not have properly understood it and therefore could not properly have understood his rights, notably his right to silence. There was no criticism of the trial judge for holding a trial within a trial, and he did not dispute that the trial judge heard evidence during that part of the case that formed the basis of the views which he later narrated in the report of this Court. Those views were summarised in that report in the following terms:

"Having heard the evidence and submissions, I had no hesitation in concluding that the procedure was fair. The interview was not oppressive and the detectives could have had no reason to think that the appellant did not understand. It was a serious offence and required urgent investigation. The appellant could have disappeared. In any event, his mother was at the interview and his father was waiting for them. I could not overturn years of well-understood police procedure on the views of Dr Boyle, who had not heard the tape. His form of caution would have been more complicated. Nor could the matter depend at all on a statistical survey of other offenders. It would be unreasonable for the police to subject this appellant or anyone else to intelligence testing before caution."

In relation to the remarks made by the judge it was suggested by Mr Burns that Dr Boyle had in fact heard the tape; in any event he had read the transcript. He had suggested that it was possible to devise a simpler form of caution and in fact produced a question and answer narrative, extending to some three pages in the transcript, which he suggested might have taken the place of the common law caution in the case of an accused suffering from intellectual and other limitations similar to those that the appellant suffered from. The reference by the trial judge to "a statistical survey of other offenders" was a reference to the evidence of Dr Johnston who gave evidence about the percentage of young offenders of similar ability who might fail to understand the caution in whole or in part.

[8] Counsel's criticism of the trial judge was that he had effectively applied the wrong test. He had simply looked at the matter of the conduct of the police and had formed the view that, because the police had behaved fairly and properly in the light of their own understanding of the situation, that was enough. What the trial judge failed to do, it was submitted, was to consider in the light of the evidence whether or not this particular accused had understood the caution. It was acknowledged that the appellant, when asked at the beginning of the interview if he understood the caution, replied "yes"; but counsel referred to general evidence that a person of his limitations might well say "yes" when in fact he did not understand. He did not submit that the appeal court should read all the evidence, listen to the tape, and form its own view on the question of admissibility. He acknowledged that decisions on matters of fact, and questions of fairness, were for the trial judge. However, by not looking at the overall fairness of the interview, the trial judge had misdirected himself. He had adopted an approach that it was necessary, in making a judgment as to admissibility, to make a "proper balance" between the public interest and fairness to the accused; this appeared to derive from the observations made by Lord Wheatley in Miln v. Cullen 1967 J.C. 21 at pages 29-30. This was an unsound approach. He submitted that in B v. H.M. Advocate 1995 S.L.T. 961, at 962H-J, the Court did not adopt the approach of balancing public interest against prejudice to the accused. The correct test was that found in the opinion of the Lord Justice General in Thompson v. Crowe 2000 JC 173 at page 191H to which we refer later.

[9] Counsel acknowledged that the experienced police officers had genuinely formed the impression that the appellant understood the caution and the purpose of the interview: he also acknowledged that the police had a duty in law to administer the caution to the appellant. However, although it was necessary to do so, it was not sufficient just to do that in a case where the person to be interviewed was not able to understand its meaning and implication. The test was an objective test: in other words, whatever justification the interviewing officers might have had for proceeding in the way they did, the trial judge had a duty, looking at the whole evidence of the circumstances, including evidence as to the accused's mental condition and age, to determine if it was unfair to allow the results of the interview to be placed before the jury.

[10] In relation to miscarriage of justice, he reminded the Court that in his report the trial judge acknowledged that the leading of evidence of the interview affected the appellant's credibility and he also pointedly said "the interview probably was prejudicial ... ". Accordingly, the leading before the jury of the unfairly obtained evidence had resulted in a miscarriage of justice. The conviction should be quashed.

[11] In his reply, the Advocate depute acknowledged that the mental state of the accused person was relevant when a judgment fell to be made about the fairness of admitting evidence about the contents of an interview in which he took part. However, he submitted that the basic question was one of fact and degree. Furthermore, the court should not lose sight of the fact that the defence refrained from leading any evidence before the jury about the interview and did not therefore try to persuade the jury that they should disregard the evidence on the basis that it had been unfairly obtained. The Advocate depute submitted that the approach of the Appeal Court was correctly set forth in the Opinion of the Court delivered by the Lord Justice Clerk in CWA v. Her Majesty's Advocate,17 January 2003. That was a case in which it was submitted that the transcript of a police interview showed that it had been conducted in unfair circumstances in the light of the accused's health and general vulnerability. The Crown there submitted that the question of fairness was one of fact and degree and that the Court could overrule the trial judge's decision on the matter only if he had erred in law or if his conclusion was so unreasonable that no judge could properly have reached it. The Court had accepted that submission. The Advocate depute then examined the submissions that had been made to the trial judge at the conclusion of the trial within the trial. Reference had been made to the age, the psychological and physical condition of the appellant and the time of night when the interview was conducted. The age and the time were not in dispute. There was no evidence to show that the appellant suffered from any psychological or physical condition that made him vulnerable. The appellant's mother clearly played an active part at the interview; she was there to provide comfort, support and reassurance as well as to act as a possible check on the exertion of undue pressure by the police. The police were under no duty, either in law or arising from the circumstances of the case, to seek to provide the appellant with legal advice. Reference was made to Codona v. H.M. Advocate 1996 S.C.C.R. 300, at page 321. Various points that were made before the trial judge had not been renewed by counsel for the appellant in the appeal, other than the central point of the alleged failure of the appellant to understand the caution. The Advocate depute reminded the court that it was essential to administer the ordinary caution to an accused person who was to be interviewed in the way that the appellant was interviewed (Tonge v. H.M. Advocate 1982 J.C. 130 at page 140). Although some evidence had been led from Dr Boyle and Dr Johnston which suggested that a person such as the appellant, with his abilities and limitations, might not have understood the caution, at least in part, the only evidence that the appellant himself did not in fact understand was some quite equivocal evidence given by the appellant himself in the trial within a trial. The appellant stated that when the police had arrived at the house he was relaxed, that he knew he was to go for interview, that they told him about the allegation of rape before the interview began, that they told him how the tape recorder would work, that he understood what the police were talking about, namely that he was "supposed to have raped somebody", that, once the interview started, he knew who the alleged victim was, that he "had nothing to hide anyway so that is how I went down to the police station", and that he remembered being given a caution. He acknowledged that he had said at the interview that he understood the caution, but claimed that he did not really know what it meant. However, his answers to the questioning that followed made it plain that he had understood well enough precisely what was happening at the interview. He repeated under cross-examination that he was relaxed and was not under any pressure, that he had been interviewed for the first part of the interview without mentioning that he was tired, that he knew at the time that he had had sexual intercourse with the girl a few hours earlier. The Advocate depute acknowledged that, in his report, the trial judge did not explicitly refer to any conclusion that he had reached as to the appellant's actual understanding of the caution. However, it was perfectly clear from what the trial judge said at page 443 in the transcript of the proceedings on 4 July 2002 that he appreciated that the basic issue was "whether the panel understood the caution which was given to him." This Court should conclude that the trial judge had addressed himself to the right question and had answered it in a way that the evidence justified. The important point was that the person being interviewed should be told, and should understand, that he was not obliged to answer, that his answers might be recorded and that they might be used in evidence. The caution had been repeated after the break, and there was no complaint at the time, either by the appellant or by his mother, that the caution was not clear. The limited role of this Court was sharply illustrated by the fact that this Court had not been asked to listen to the tape or indeed to study the transcript. There was simply no basis at all upon which this Court could conclude that the trial judge should have come to any different conclusion from the one that he announced after hearing the evidence and the submission. The trial judge had accepted the police evidence. The police officers were experienced and took account of the fact that the appellant said that he understood what the caution meant, and also of his appearance and his body language and his whole behaviour throughout the interview. The evidence of Dr Boyle and Dr Johnston was very general, and it did not compel the Court to conclude that this appellant had not in fact understood the caution. He pointed out that the answers given by the appellant at the interview were designed to exculpate himself completely, because he clearly denied at the interview being involved at all sexually with the girl. This was not a case in which the police had taken advantage of a vulnerable person to question him in such a way that he made admissions of guilt that the Crown sought to found upon. Finally, the Advocate depute submitted that, because the evidence of what took place at the interview affected credibility only and did not in any way add positively to the Crown case, the court should conclude, even if the evidence should not have been admitted, there was no miscarriage of justice.

[12] In our opinion, in a case of this kind, it is the duty of the trial judge, when assessing the whole circumstances as disclosed by the evidence presented at the trial within the trial, to uphold an objection to evidence, if admitting that evidence would be likely to result in a violation of the accused person's basic rights, such as the right not to be subjected to an improper method of interrogation or the right to be told in intelligible terms of his right to silence. The present case raises no issues as to any improper method of interrogation. The only issue that arises here is in relation to the accused person's right to silence and the supplementary right to realise that he has, and may exercise, a right to refuse to answer questions. It is important to remember, however, that an accused person has also a positive right to speak, and to explain, as well as a right not to speak and not to explain. The right at an early stage to inform the police of his response to allegations made against him is an important right because it enables the accused to put before the police exculpatory facts and circumstances that they can investigate at once. The present case is one in which the accused person chose to respond to the allegations made against him by denying them in terms which, if true, would exculpate him altogether.

[13] In this context it is appropriate to begin by considering the submission that there might be a conflict between the public interest and the right of an accused to be dealt with in a way that is fair. What Lord Wheatley said in Miln v. Cullen at pages 29-30 was:

"While the law of Scotland has always very properly regarded fairness to an accused person as being an integral part of the administration of justice, fairness is not a unilateral consideration. Fairness to the public is also a legitimate consideration and in so far as police officers in the exercise of their duties are prosecuting and protecting the public interest, it is the function of the Court to seek to provide a proper balance to secure that the rights of individuals are properly preserved, while not hamstringing the police in their investigation of crime with a series of academic vetoes which ignore the realities and practicalities of the situation and discount completely the public interest. Even at the stage of routine investigation, where much greater latitude is allowed, fairness is still the test, and that is always a question of circumstances."

The passage in the Opinion of the Court in B v. H.M. Advocate at page 962, to which our attention was drawn reads:

"There are many situations in which a judge may have to consider the public interest in taking decisions which are for him to take. But when a jury is being asked to consider the issue of fairness, the only question for them is whether what was done was or was not fair in regard to the particular issues which have been raised in the evidence."

In Thomson v. Crowe, as in Miln v. Cullen and in B v. H.M. Advocate, the accused, while being questioned, had allegedly confessed to criminal conduct. In that case the Lord Justice General (Rodger), at pages 191H-192A, explaining the consequences of the overruling of Balloch v. H.M. Advocate 1977 J.C. 23, said that

" ... it will be for the trial judge to decide questions of the admissibility of the evidence of statements by the accused, just as it is for the trial judge to decide all other questions of admissibility. The decision will depend, of course, on the facts of the particular case and, where there are conflicts in the evidence about the circumstances, it will be for the trial judge to resolve those conflicts and so to settle the factual basis upon which to take the decision. The judge will exclude the statement if it was taken in circumstances which render it inadmissible under any rule laid down by the law. In other cases the judge will admit the statement if the Crown satisfies the court that is would be fair to do so, by proving that the statement was freely and voluntarily made and was not extracted by unfair and improper means".

In our opinion, there is no real conflict between these different ways of describing the approach of the Court. The rule and practice of the Court remains what it has been since at least the decision of the Full Bench in Chalmers v. H.M. Advocate 1954 J.C. 66. Evidence unfairly obtained is inadmissible. There is no legitimate public interest in allowing the jury to hear evidence that has been obtained by improper means or otherwise unfairly; but the Court, in judging the issue of fairness in the circumstances of the case, should not close its eyes to the realities and practicalities of the situation. In this context, it is appropriate to note that the Court will not ignore the nature and content of the evidence which it is sought to place before the jury. If the evidence tendered is highly relevant to the ascertainment of the truth in the case, that is an important, though not decisive, consideration; there is an obvious public interest in placing such relevant evidence before the jury. Clearly, evidence of an admission of guilt obtained by improper means is to be excluded, even although that evidence would be highly relevant; that is the kind of case that has most commonly been considered by the Court.

[14] We have to consider here a different type of case, one in which the evidence sought to be adduced is to the effect that the accused made an apparently voluntary statement to investigating police officers declaring his innocence and asserting that he was not present when the crime was committed. The importance of that evidence was that, by the time of the trial, it could shed significant light on the question of credibility which was then at the heart of the case. For the girl, within minutes of the events, had told friends whom she had met that she had been forced to have intercourse against her will; and she repeated that assertion to the jury, even under cross examination by the appellant's counsel clearly suggesting that she had been lying on this vital matter from start to finish. Accordingly, by that stage of the trial, it was clear that the appellant's case was being presented to the jury on the basis that the girl was lying; and also that the appellant was likely to enter the witness box and claim to the jury that she had consented to intercourse. The evidence of the police who conducted the taped interview was that, within a mere six hours of the events, the appellant was - falsely - denying that he had had intercourse with the girl. Thus the relevance and importance of the evidence of what happened at the interview was clear: it went to the vital issue that became manifest at the trial, namely the likely conflict of evidence between the two persons most involved. If the appellant were to give evidence in support of his line of defence, the jury would have to assess the credibility of those two persons in order to resolve that conflict; the public interest in allowing the jury to hear and assess the evidence of what happened at the appellant's interview was clear. However, the public interest in placing highly relevant evidence before the jury can never be of such overriding importance that it will persuade the Court to permit the leading of evidence that would breach the fundamental requirement of fairness. Accordingly, even in the present type of case, the issue remains whether allowing the jury to hear such evidence was unfair to the accused. Evidence "extracted by unfair or improper means" is excluded because the means themselves are disapproved: Chalmers v. H.M. Advocate. But additionally it is not in dispute that, even if the means used were fair and proper, the circumstances may demonstrate that the accused person, when facing questioning by the police, was at such a disadvantage, by reason of age or physical or mental condition or lack of competence in the understanding of English, or otherwise, that he could not properly comprehend his situation or appreciate his right to silence; and that the result was tantamount to denying him that basic right. That, Mr Burns submitted, could properly be described as "objective unfairness".

[15] In our opinion, it is clear that the assessment of the fairness of the proceedings in which an accused person answers questions put to him by the police in a police station, whether the suggestion is that the methods employed produced unfairness or that the personal vulnerability of the person being questioned had that result, is in the first place a question of fact for the trial judge to determine at the trial within the trial. The decision as to fairness is one for him to make in the light of the facts as determined by him: Thompson v. Crowe. The role of this Court in an appeal against the trial judge's decision was restated in CWA v. H.M. Advocate, where the Lord Justice Clerk, delivering the Opinion of the Court said, in paragraph 16,

"Where objection is taken to the fairness of a police interview and there is a trial within a trial, the question of fairness is pre-eminently a question of fact for the trial judge. We can interfere with his decision on that matter only if he has erred in law or if his decision is manifestly unreasonable. In this case, the trial judge had the advantage of hearing the tape recording of the interview and of seeing and hearing the police officers in the witness box. In our opinion, we could not even consider the soundness of the trial judge's decision since we have been referred only to the transcript of the interview."

In our opinion, those observations properly describe the Appeal Court's approach, whether the unfairness is said to derive from the methods used or from the circumstances of the person interviewed.

[16] The evidence that the trial judge heard amply entitled him to come to the conclusion of fact that the appellant understood his situation and was aware that he had a choice between answering questions and not answering them. The caution was administered to him at the beginning of the taped interview, was repeated after there had been a short break and given once more before he was charged: it was in the usual terms - see page 163 of the transcript of the proceedings at the trial within the trial. At the beginning of the interview, he said that he understood the caution that was spoken to him. The appellant's evidence in the trial within a trial enabled the trial judge to conclude that the appellant understood well enough why he was being interviewed and that he did not need to reply to questions. For example, at page 163, the following exchange is recorded:

"Q. How did you feel about getting asked questions about a rape?

A. I didn't think nothing of it because I didn't do it. I had nothing to hide anyway so that is how I went down to the police station."

The caution contained the words,

"You are going to be asked questions about a rape that occurred on Friday 7^th September 2001 in the New Cumnock area. You are not bound to answer ...".

In evidence he claimed that he did not know what "bound" meant, but the trial judge explored that with him and was obviously satisfied that he knew what it meant. The police evidence was very strong. They were experienced officers. They had observed the appellant's whole behaviour, including his body language, and were satisfied that he understood what was happening and that he did not need to agree to the interview or the questioning. Quite apart from what was recorded on the tapes, the police had earlier explained to him in the presence of his mother what was to happen if he agreed to be interviewed, including how the tape recorder would work. The appellant's mother at no time suggested that her son did not understand why he was in the police station or what was happening. There was evidence from the appellant himself that he was literate, numerate and attended "normal school". He was about three months short of his fifteenth birthday. He accepted in evidence to the trial judge that, throughout the interview, he was deliberately prepared to tell lies to the police. The trial judge had to weigh such evidence against the evidence adduced by the defence to the effect that a substantial proportion of persons similar to the appellant in terms of age and mental capacity might fail to understand the caution in whole or in part. Without doubt it was the appellant's own understanding of the situation that was the main subject matter of the submissions that the trial judge heard after hearing the evidence and listening to the tape recording of the interview. The submissions by counsel then acting for the appellant contained the following passage recorded at pages 430 -433:

"My Lord, perhaps the best point that the defence has as far as these particular proceedings is the failure to understand the caution and I think this goes to the heart of this particular objection ... I would therefore suggest ... that there is little doubt that he didn't understand the caution and if he didn't understand his right then what was followed was unfair".

It was not suggested that the police should have given him some warning to the effect that, if he lied at the interview, his lying might itself be a relevant matter at any subsequent trial. In our view, against the background of the evidence that the trial judge expressly accepted as credible, and in view of the terms of the submissions made to him, it cannot be successfully maintained that the trial judge did not consider the central issue as identified by counsel at the trial. He identified it in the passage at pages 442/3 where he announced his decision following the submissions:

"It was conceded ... that they (the police) were entitled to take him from his home at the time which they did. The only issue that has been argued in some detail to me was whether what thereafter took place was fair and more particularly whether the Panel understood the caution that was given to him. I propose to allow the interview to go to the jury."

It would no doubt have been better if, in his report to this Court, the trial judge had dealt expressly with what Mr Burns called "objective unfairness"; but as it is evident from the trial proceedings themselves that the trial judge concluded that the appellant understood the caution when it was given to him there is no reason to hold that the trial judge failed to address the fundamental issue of fairness in the correct way. We are not persuaded that the trial judge fell into any error in deciding to admit the evidence objected to. In the light of that conclusion, there is no basis for arguing that there has been a miscarriage of justice. The appeal must be refused.