Scottish High Court of Justiciary Decisons

AD: Beardmore

Counsel for First Panel: Burns QC and Sayers

Counsel for Second Panel: Davidson QC

23 May 2006

Introduction

[1] This is an application by minute raised as a preliminary issue at this continued preliminary hearing. The application is to exclude the evidence of the police interview with the Minuter, Mr Duncan, on 3 March 2005 (Crown Production 4) and also a video tape (Crown Label no 6) and two photographs (Crown Productions 14 and 15) which were obtained following the interview.

[2] The ground on which this application is made is that the evidence at that interview is inadmissible having regard to Mr Duncan's mental capabilities and also the way in which DC Jason Robertson conducted the interview. Similarly it was submitted that the video and photographs were not admissible because their existence was disclosed only as a result of the inadmissible evidence at the interview.

[3] The Advocate Depute led the evidence of the following witnesses. I heard evidence from DC Robertson who conducted most of the interview and PC Webster who was the second police officer at the interview. I saw a video of the interview. I also heard the evidence of Mrs Lydia Munro, who was the appropriate adult who assisted Mr Duncan at the interview. I also heard the evidence of Sergeant James Robertson, PC Michael Mulloy and Dr John Marshall, a Consultant Forensic and Clinical Psychologist. Mr Burns QC led the evidence of Mr Duncan and parties agreed by Joint Minute that I should have regard to two reports by Dr Gary Macpherson, a Consultant Forensic Clinical Psychologist, and two reports by Dr Fergus Douds, a Consultant Psychiatrist, who has special responsibility for offenders with learning difficulties.

[4] The Advocate Depute referred me to the following authorities: Chalmers v HM Advocate 1954 JC 66, Lord Advocate's Reference (No 1 of 1983) 1984 SCCR 62, Thompson v Crowe 1999 SCCR 1003 and B v HM Advocate 2003 SLT 662 in relation to the admissibility of evidence given in a police interview and to Lawrie v Muir 1950 JC 19 in relation to information obtained by irregular means. Mr Burns QC referred me to Hartley v HM Advocate 1979 SLT 26 for Lord Avonside's definition of cross-examination at page 28.

[5] It is for the judge to decide the admissibility of statements made by a suspect to the police. The test is one of fairness in all the circumstances, having regard not only to the means by which the interview was conducted but also other circumstances which might place the accused in a position of such disadvantage that he could understand neither the situation he was in nor his right not to answer the questions which were put to him. See, for example, B v HM Advocate 2003 SLT 662.

[6] After receiving certain allegations against Mr Duncan of sexual misconduct with a ten year old child, VS, DC Robertson and PC Webster went to Mr Duncan's home on 3 March 2005 and at 1022 hours detained him under section 14 of the Criminal Procedure (Scotland) Act 1995. Mr Duncan suggested in his evidence that he had been manhandled and that he suffered bruising to his left arm when he was detained at his house but, having heard the evidence of DC Robertson and PC Webster, I do not accept Mr Duncan's evidence on that matter. DC Robertson was aware from his researches before detaining Mr Duncan that he had a learning disability. He therefore arranged for a social worker, Mrs Lydia Munro, to attend the interview of Mr Duncan as an appropriate adult to provide him with support, to ensure that he understood his rights and to assist him both in understanding the questions put to him and in explaining his answers to those questions. Before the interview commenced, Mr Duncan met Mrs Munro in an interview room in Elgin Police Office and Mrs Munro explained her role to him. She also explained to him that he did not have to answer any questions that the police asked him. Mr Duncan stated in evidence that he understood that he did not have to answer questions when Mrs Munro explained this to him.

[7] The interview, which commenced at 1158 hours, lasted until 1520 hours but it was interspersed by comfort breaks between 1226 and 1233 hours and between 1256 and 1304 hours and a lunch break between 1319 and 1509 hours. Thus the interview comprised four sessions of 28 minutes, 23 minutes, 15 minutes and 11 minutes respectively. After explaining that the police were to ask questions about an allegation of lewd and libidinous practices and explaining in layman's terms the meaning of the allegation, DC Robertson gave a common law caution and explained that this meant that Mr Duncan did not have to say anything to him even if he asked him a question. He repeated the common law caution on five further occasions during the interview and again when he arrested Mr Duncan at the end of the interview. On the first occasion when he repeated the caution early in the interview he again explained that it meant that Mr Duncan did not have to answer the questions. I am satisfied on the evidence of DC Robertson and Mrs Munro and also on Mr Duncan's own evidence that he understood this.

[8] Having seen the video, I am satisfied that DC Robertson questioned Mr Duncan in a restrained and polite way. He did not raise his voice, nor did he display any anger. It is clear that on several occasions during the interview, starting between the first and second comfort breaks, DC Robertson put pressure on Mr Duncan to tell the truth. In particular, on several occasions he told Mr Duncan that he did not believe him and that he had information that contradicted his account. Mr Duncan exhibited signs that he was under pressure and was seen to fidget. But this occurred in a context in which Mr Duncan was willing to speak to the police and initially admitted touching VS's bottom by accident, then after the first comfort break, asserted that she had made sexual advances to him which he had repelled and disclosed hearsay evidence that she had performed oral sex on another man. After DC Robertson first suggested to Mr Duncan that he was not telling the truth and then repeated that assertion Mr Duncan slowly disclosed more and more of his activity which revealed to DC Robertson that his earlier answers were untrue. Until the second comfort break Mr Duncan denied having had sexual intercourse with VS but on returning after the second break and after being cautioned and asked if there was anything he wanted to tell the police, he admitted having sexual intercourse with her. Initially he asserted that it occurred only on one occasion at Keith but later he stated that he had had sex with her on between four and six occasions every second Thursday at his house in Elgin.

[9] DC Robertson arrested Mr Duncan at the end of the interview and he was placed in a cell in the police station. He then went to interview Lisa Stuart, Mr Duncan's partner, who had been detained at 1350 hours. At about 1955 hours that evening Sergeant James Robertson, who was duty custody officer, carried out a routine check of the cells. Mr Duncan inquired if Lisa Stuart was being interviewed and said that he had something important to say to the reporting officer. Sergeant Robertson asked him what that was and Mr Duncan replied that he had a video at home that was connected with the case. Sergeant Robertson informed DC Robertson of this at about 2000 hours and he and PC Webster visited Mr Duncan in his cell. Mr Duncan informed them that he had a video tape at his home and that he was concerned about Lisa getting away with the offence but that the tape would show that she also was involved. They did not caution Mr Duncan but requested other officers to obtain the tape. PC Mulloy and another officer visited Mr Duncan in his cell at about 2155 hours in order to obtain the tape. He gave Mr Duncan the common law caution and also advised him that he did not have to authorise the search of his house, but Mr Duncan authorised the search and accompanied the officers to his house where the video tape was recovered along with other video tapes, a camcorder and a tripod.

[10] The Advocate Depute invited me to rule that both the answers given at the interview and the video were admissible evidence against Mr Duncan because they had been fairly obtained. He submitted that Mr Duncan's physical health and psychological status, the format of the interview and his level of comprehension were such that the interview was fair. Mr Duncan understood that he did not have to answer the questions but chose to speak. When DC Robertson encouraged him to tell the truth he slowly did so, without being coerced. In relation to the video, he submitted that its existence was first mentioned a considerable time after the interview had been completed. While Mr Duncan was not cautioned about his statement in relation to the video until PC Mulloy visited him, he had disclosed the existence of the video to Sergeant Robertson in the context of a routine check and not when the police were seeking information from him; it would have been difficult for Sergeant Robertson to have cautioned Mr Duncan before he told him about the video. If there were any irregularity in not cautioning him, it should be excused as in Lawrie v Muir. Even if Mr Duncan had not disclosed the existence of the video, the police would have searched Mr Duncan's house in the course of their investigation and PC Webster had explained that the videotapes would have been seized in the context of an investigation into sexual abuse. Both the admission of sexual intercourse in the interview and, arguably, the video were important pieces of evidence for the Crown to show that penetrative sexual intercourse had occurred. The importance of the evidence was, on the authorities, a factor to take into account when considering its admissibility.

[11] Mr Burns submitted that I should treat the incriminating answers that Mr Duncan gave in his interview as inadmissible because of the combination of his mental state at the time of the interview and the manner in which DC Robertson conducted the interview. Mr Duncan's low IQ, his tendency to be easily confused, his impulsiveness under stress and his tendency to be compliant when faced with subtle questioning made him vulnerable to DC Robertson's cross-examination in the later phases of the interview. The interview in those phases had amounted to cross-examination which Lord Avonside in Hartley v HM Advocate at page 28 had defined as "questioning an adverse witness in an effort to break down his evidence, to weaken or prejudice his evidence, or elicit statements damaging to him and aiding the case of the cross-examiner". While Mr Duncan was repeatedly cautioned, those cautions were undermined by DC Robertson's repeated demands that he tell the truth and statements that he was lying. As a result a man who had not wanted to speak had unfairly been made to make admissions. There was a nexus between the unfair interview and the disclosure of the video as, if Mr Duncan had not made the admissions, the police might not have had sufficient evidence to obtain a search warrant. The disclosure of the video was part and parcel of the interview process.

[12] I have decided that both the answers given in the interview and the video are admissible evidence.

[13] It is clear that, whatever the situation was when Chalmers v HM Advocate was decided, the modern law is that where a caution is given and understood, it is not of itself unfair for the police to ask questions of a suspect which might elicit answers which tend to incriminate: see the statement of the Lord Wheatley in Miln v Cullen 1967 JC 21, at pp.30-31 which was cited with approval by the Lord President (Emslie) in Lord Advocate's Reference (No 1 of 1983) at page 69. The latter case also demonstrates that, where a caution is given and understood, it is not of itself unfair to ask leading questions which probe the suspect's account of events. What is not fair, as the Lord President stated in that case, are questions which involve an element of bullying or pressure designed to break the will of the suspect or force from him a confession against his will. What is proscribed is what the Lord Justice Clerk (Thomson) described in Chalmers v HM Advocate as "bullying, pressure [and] third degree methods", what the Lord Justice Clerk (Grant) said in Miln v Cullen was "undue pressure, cajoling or trapping" and what Lord Ross described in Friel v HM Advocate 1978 SLT (Notes) 21 as "sustained and forceful questioning". Similarly and unsurprisingly, deception on the part of the police would normally amount to unfairness, particularly if combined with such forceful questioning. These tests apply to the nature of questioning in an interview of a suspect of normal robustness; as I mentioned in paragraph [5] above there may also be unfairness where the police question a suspect in a restrained and proper way but the suspect does not understand the position he is in or his right not to answer the questions.

[14] It is, as the Advocate Depute submitted, appropriate when reaching a decision on the admissibility of interview evidence to take into account the nature and importance of the evidence which has been disclosed. But it is important to be clear as to the relevance of such considerations. I consider that references in case law (e.g. Miln v Cullen 1967 JC 21, 26, and HM Advocate v Graham 1991 SCCR 56, 59B-C) to balancing fairness to the accused against the public interest in the detection of crime or "bilateral fairness" do not sanction the admission of evidence unfairly obtained merely because the evidence may have significant value in the prosecution of an accused person. A suspect is entitled to the protection of the court when he is interviewed by the police so that he may have a fair trial. What in my opinion the idea of balancing the interests of the suspect and the public interest amounts to is a recognition that the court is to have regard to the practicalities of the circumstances in which the questioning takes place and that the court should not impose unwarranted restrictions on the ascertainment of the truth and the detection of crime. In many cases it is not unfair for the police to ask probing questions of a suspect when investigating serious crime and seeking evidence that is highly relevant to ascertaining the truth. The context in which the questioning takes place is a relevant consideration in the assessment of fairness. But, as Lord McCluskey stated in B v HM Advocate (p.666K-L), "there is no legitimate public interest in allowing the jury to hear evidence that has been obtained by improper means or otherwise unfairly". The seriousness of a charge does not justify the admission of evidence unfairly obtained in a police interview.

[15] In this case I am satisfied that Mr Duncan understood the position he was in, the allegations he was being asked to comment on, and also his right not to answer the questions put to him. As I have said, I accept the evidence of DC Robertson, Mrs Munro and Mr Duncan himself that he understood that he did not have to answer the questions which DC Robertson put to him.

[16] It is clear from the psychological reports that Mr Duncan has a low IQ; the balance of the reports suggests that his full scale IQ falls within the range of 59 and 67, which indicates, as Dr Marshall stated, that he has significantly impaired intellectual functioning. However Dr Macpherson, Dr Douds and Dr Marshall agreed that he did not have a significant or abnormal propensity towards suggestibility during questioning and Dr Macpherson opined in his report that his tendency to change his answers under pressure of questioning or repeated questioning placed him in the average range in comparison to the general population. I therefore conclude that he does not have a significant propensity to change his account under pressure of questioning so as to make him unusually vulnerable to probing or challenging questioning.

[17] In my opinion, as I have said, DC Robertson's questioning of Mr Duncan was polite but firm. He conducted the interview in a low key manner and did not express anger or raise his voice. He used language appropriate for a person with a low IQ. He did ask leading questions in the later phases of the interview and he did state on several occasions that he did not believe Mr Duncan. He also repeatedly asked Mr Duncan to tell the truth. While this approach might have caused difficulty with a suspect who was highly suggestible, I do not consider it amounted to unfairness in this case. I am satisfied from Mr Duncan's evidence that he did not believe DC Robertson when he asserted that he could tell whether a person was lying. Thus this assertion, which was repeated in different forms and which could perhaps have swayed a suggestible person, did not have that effect on Mr Duncan.

[18] I am reinforced in this view by Dr Macpherson's report in which he records that Mr Duncan denied being coerced or bullied or offered a deal during his interview. Dr Macpherson also reviewed the video of the interview, commented on the fairly relaxed style of the interviewing officer and opined that the pace of the interview and use of language were appropriate to Mr Duncan's vulnerabilities. He also found no abnormalities of behaviour or absences or any significant problems in his understanding during the interview. Similarly I agree with Dr Douds' view that the tone of the police questioning was at times firm but it was not intimidating.

[19] During a break in the interview, Mrs Munro, the appropriate adult, said to Mr Duncan that he should just tell the truth. I agree with her when she said in evidence that she should probably not have said that but accept that she did so in a supportive way and on the understanding that, as Mr Duncan stated on several occasions in his interview, he was seeking to tell the truth. I do not consider that her comment significantly influenced Mr Duncan, who was, as I have said, aware that he did not have to answer the questions he was asked.

[20] In addition the interview took place in daytime; there were regular breaks; the suspect was given water when he required it; and the interview was interrupted to give him lunch. While it is clear from the video that after the first break Mr Duncan found the interview difficult, I agree with Dr Douds in attributing his discomfort to the subject matter being discussed rather than to the police applying any undue pressure.

[21] Having regard to all the circumstances of the interview and in particular to the evidence of Mr Duncan's disabilities, I am satisfied that the interview was fair and the admissions which Mr Duncan made at that interview may properly be admitted in evidence.

[22] As I have held the admissions which Mr Duncan made at the interview were not obtained unfairly, it follows that Mr Burns' challenge to the admissibility of the video as being part and parcel of an inadmissible interview falls away. For completeness, and although Mr Burns did not argue otherwise, I should add that I do not consider that the fact that neither Sergeant Robertson nor DC Robertson administered a caution to Mr Duncan before he revealed the existence of the videotape amounted to unfairness. Mr Duncan was aware from the cautions during his interview that he did not have to speak to the police on this or any other issue but chose to do so after the interview in order to implicate Lisa Stuart. Thereafter, when cautioned by PC Mulloy, he assented to the search of his house. I therefore do not have to consider the issue of the admission of irregularly obtained evidence.