Scottish High Court of Justiciary Decisons

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Cite as: 2007 SCCR 466, 2008 SCL 176, [2007] HCJ 12, [2007] ScotHC HCJ_12

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HIGH COURT OF JUSTICIARY

[2007] HCJ 12

OPINION BY LORD HODGE

in the cause

HER MAJESTY'S ADVOCATE

against

STEPHEN RONALD

________________

AD: McSporran, Solicitor Advocate

For Panel: Burns QC and Campbell, Advocate

27 April 2007

Introduction

[1] This is an application by minute raised as a preliminary issue at a continued preliminary hearing. The application is to exclude the concluding part of the police interview with the Minuter, Stephen Ronald, (Pro 5) which took place on 5 December 2005 towards the end of his period of detention which started at 1308 hours and ended at about 1908 hours, when he was arrested.

[2] The ground on which this application is made is that the answers which the Minuter gave at pages 65 to 68 of the transcript of that interview are inadmissible (a) because the information which the police used in questioning the Minuter at this stage was derived from inadmissible evidence and (b) because the answers were elicited in an unfair manner.

[3] The onus being on the Crown to satisfy the court that the evidence was admissible, the Advocate Depute led the evidence of two police witnesses. The first was PC Gordon Ross who spoke to the Minuter at Drylaw police station when he attended there voluntarily and who, in the company of PC Ewing and the Minuter, viewed photographs and video footage on the Minuter's mobile phone. The Advocate Depute also led the evidence of DS Duncan Morrison, who conducted the interview with the Minuter at St Leonard's Police Office. I also saw a video of the relevant part of that interview (pp.59-68 of the transcript). Mr Burns led the evidence of the Minuter. I was not shown the photographs or video footage from the Minuter's mobile phone.

[4] The Advocate Depute referred me to two authorities, namely Thompson v Crowe 1999 SCCR 1003 and Lord Advocate's Reference (No 1 of 1983) 1984 JC 52. Mr Burns QC referred me to those two authorities and also to Chalmers v HM Advocate 1954 JC 66, Hopes and Lavery v HM Advocate 1960 JC 104 and Steele v HM Advocate 1992 SCCR 30.

[5] The Advocate Depute founded principally on Thompson v Crowe but referred, as an alternative formulation of the appropriate test, to the statement by the Lord Justice General (Emslie) in Lord Advocate's Reference (No 1 of 1983) (above) at p.59 where he stated that a judge would normally be justified in withholding answers from a jury only if he were satisfied that no reasonable jury could hold upon the evidence that the answers had not been extracted from the suspect by unfair or improper means. I am satisfied that it is appropriate to apply the test in Thompson v Crowe. That is the decision of a Bench of five judges which overruled the case of Balloch v HM Advocate 1977 JC 23 from which the Lord Justice General derived the formulation which I have mentioned. On the authority of Thompson v Crowe, it is for the judge and not the jury to decide on the admissibility of statements made by a suspect to the police. Accordingly the "no reasonable jury" test has no place in the determination of the admissibility of evidence in this context.

[6] As Mr Burns submitted, there are two bases for exclusion of evidence of such a statement. First, the judge should exclude a statement if it was taken in circumstances which render it inadmissible under any rule laid down by the law. Secondly, he should exclude such a statement if he is not satisfied that it was obtained fairly. See Thompson v Crowe at p.1033 E-F.

[7] In relation to the second basis, the test is one of fairness in all the circumstances, having regard not only to the means by which the interview was conducted but also other circumstances which might place the accused in a position of such disadvantage that he could understand neither the situation he was in nor his right not to answer the questions which were put to him. See, for example, B v HMA 2003 SLT 662.

The facts

[8] Following a complaint of a sexual nature against him, the Minuter went voluntarily to Drylaw police station where he spoke to PC Ross and PC Ewing. The Minuter was very co-operative and gave them an account of what had occurred between him and the complainer on the previous night. In giving that account he explained that there were images of himself and the complainer on his mobile phone. He allowed the police officers to view the still photographs and three short sequences of video which he had recorded on his phone. These showed the Minuter performing various sexual acts on the complainer. PC Ross in his evidence explained that during the video scenes the complainer did not speak; the only noise recorded on the phone was the rustling of the bed clothes. The complainer was seen to be lying motionless and PC Ross expressed the view that she was asleep or unconscious when the sexual acts recorded on film, including penetrative sexual intercourse, occurred. After the police officers had viewed the pictures and video footage on the phone, PC Ewing detained the Minuter under section 14 of the Criminal Procedure (Scotland) Act 1995. The police officers then took the Minuter to St Leonard's police station where DS Morrison and Acting DC Angela Edmunds interviewed him. Before the interview began, PC Ross explained to DS Morrison his understanding what he had seen on the mobile phone.

[9] The interview, which commenced at 1706 hours, lasted until 1904 hours. During most of the interview the Minuter gave a detailed account of the events of the previous evening and night. He explained how he had encountered the complainer and how they went drinking before taking a room in a hotel so that they could buy alcohol late at night. They had consensual sexual relations in a bedroom in the hotel in which she played an active role. The Minuter fell asleep and was woken by the complainer and again they had consensual sexual activity. On the third occasion when they had sexual relations the Minuter used his mobile phone to film part of the sexual activity to show off to his friends. The complainer felt unwell and in the morning they left the hotel by taxi. In the taxi the complainer took his mobile phone and refused to return it. When the Minuter was paying the taxi driver, the complainer ran into her flat and locked the door, refusing to return his phone. The Minuter attempted to get into the flat but, on failing to do so, he waited outside the block of flats where he encountered the police arriving to investigate the complaint. After the Minuter had given this account, DS Morrison put to him his understanding of what the police officers from Drylaw police station had told him they had seen on viewing the footage on the mobile phone. He explained that they interpreted the footage as showing that the complainer was unconscious. The Minuter denied that he had had penetrative sexual intercourse while the complainer was asleep. DS Morrison then suggested that he would find it strange if she were silent when he was videoing her and sexual activity was going on, asking him why there was no noise coming from her. The Minuter's response was that he probably did it while she was asleep. He then said she must have been asleep when he filmed her.

[10] Having seen the video of the last phase of the police interview, it is clear that DS Morrison in this phase chose, after hearing the Minuter's account of events, to put to him his understanding of what the video footage showed, from the information which the police officers had relayed to him. In questioning the Minuter he did not raise his voice or apply any pressure beyond that which would arise naturally from being asked to comment on the police officers' potentially incriminating interpretation of the video footage. While DS Morrison agreed with Mr Burns' description of his questions at this stage as being cross-examination, the Minuter in his evidence accepted that it was fair for the detective sergeant to ask him those questions and said that he thought that he had been treated fairly.

Submissions

[11] The Advocate Depute invited me to rule that the answers given in the challenged part of the interview were voluntarily made and were not extracted by unfair means. The police officer had fairly put to the Minuter his understanding of the evidence against him and had given him an opportunity to comment on that evidence. The Crown's position was that the description which DS Morrison gave of what the video showed was not inaccurate and the defence had not suggested otherwise.

[12] Mr Burns submitted, first, that the challenged evidence was inadmissible under a rule of law as the contention which DS Morrison put to the Minuter was based on the evidence of PC Ross but PC Ross's evidence of what he thought the video showed would not be admissible evidence before a jury. This was because it was for the jury and not the witness to decide what the video showed on the central issue of the case, namely whether the complainer was awake and conscious when sexual intercourse occurred. It was for the jury and not a police witness who had no particular expertise in interpreting video evidence to decide that question. He founded in particular on a dictum of Lord Sorn in Hopes and Lavery (above) at pp.112-113, where (in a case about the transcription of a recorded conversation) he stated that there was a general rule that it was inadmissible to put a witness into the witness box to tell the jury what the evidence they had been listening to ought to convey to them. In short, Mr Burns' submission was that, as PC Ross's evidence of what he saw on the video would be inadmissible in court, the Minuter's answers elicited by questions derived from his account of what he saw were inadmissible.

[13] He submitted, secondly, that I should, in any event, treat the potentially incriminating answers as inadmissible as they were unfairly obtained. The interview in the final phase had amounted to cross-examination designed to undermine the Minuter's assertion that he had not had sexual intercourse with the complainer while she was asleep or unconscious. The questioning was subtly designed to manoeuvre him into giving an incriminating answer and was thus unfair.

Decision
[14] I have decided that the answers given in the challenged part of the interview are admissible evidence.

[15] In relation to Mr Burns' first ground of challenge, I am not satisfied that there is a rule of law that renders inadmissible evidence from a witness of his or her understanding of what video or CCTV footage shows, even where the matter shown on the video addresses the principal issue which the jury have to determine in a particular case. In any event, Lord Sorn made it clear that he was speaking of a general rule, that there were exceptions to that rule and that people without a technical qualification could be allowed to explain their understanding of a particular item of evidence. The issue was fairness to the accused and presiding judge could control such evidence to ensure that the giving of such evidence was fair to the accused.

[16] I am supported in my view by consideration of Steele v HM Advocate (a case which concerned video evidence from police surveillance tapes) in which the Lord Justice General (Hope) emphasised that questions of principle were likely to be overshadowed by what was practicable in each case. He stated that

"it is undesirable for a trial to be prolonged by a long series of replayings of the tape or of passages from it either at the request of the parties or of the jury ..... So it is likely to be of advantage for the witnesses to be asked to give their own opinions as to what is being shown on the tape in order that the jury's minds can be directed to the relevant points while the tape is being played. But, except in cases where some particular expertise is required to understand what is going on, the jury are free to make up their own minds about what the tape reveals. It is not necessary for them to be provided with a running commentary on every detail."

[17] On this approach a witness who expresses his view on what a tape shows is not usurping the function of the jury. His or her view is open to challenge on cross-examination. The presiding judge can intervene to ensure fairness, for example by clarifying with a witness that a part of the taped evidence which is ambiguous is open to different interpretations, by controlling the questions which the prosecutor puts to the witness or by emphasising in his directions that it is for the jury to determine what the tape showed and that while they can have regard to the witness's views they are not bound by them.

[18] As I am not persuaded that evidence from PC Ross as to what he thought he could see on the video would be inadmissible at a trial, I do not accept the starting point of Mr Burns' first ground of challenge. But even if PC Ross's evidence were inadmissible, that would not of itself prevent a police officer interviewing the Minuter from using information derived from PC Ross in questioning him. For I do not consider it to be a good ground of objection that the interviewing officer had not seen the video but was relying on the account given by another officer who had viewed it. If that were objectionable it would severely hamper police investigations as, by analogy, an interviewing officer could not rely on a report from another officer of what an eye witness had said to him to question a suspect where the other officer's evidence of the statement would be inadmissible as hearsay. I know of no rule of law which renders inadmissible answers to questions by an interviewing officer which are based on information derived from such hearsay reports. For those reasons I reject the first ground of challenge.

[19] In relation to the second ground of challenge, the modern law is that where a caution is given and understood, it is not of itself unfair for the police to ask questions of a suspect which might elicit answers which tend to incriminate: see the statement of the Lord Wheatley in Miln v Cullen 1967 JC 21, at pp.30-31 which was cited with approval by the Lord Justice General (Emslie) in Lord Advocate's Reference (No 1 of 1983) at p.58. The latter case also demonstrates that, where a caution is given and understood, it is not of itself unfair to ask leading questions which probe the suspect's account of events. What is not fair, as the Lord Justice General stated in that case, are questions which involve an element of bullying or pressure designed to break the will of the suspect or force from him a confession against his will. What is proscribed is what the Lord Justice Clerk (Thomson) described in Chalmers v HM Advocate as "bullying, pressure [and] third degree methods", what the Lord Justice Clerk (Grant) said in Miln v Cullen was "undue pressure, cajoling or trapping" and what Lord Ross described in Friel v HM Advocate 1978 SLT (Notes) 21 as "sustained and forceful questioning". Unsurprisingly, deception on the part of the police would normally amount to unfairness, particularly if combined with such forceful questioning.

[20] Having seen and heard the video of the relevant part of the interview, I can detect nothing in the way in which DS Morrison questioned the Minuter which involved bullying or pressure or deception. Nor was the questioning subtle in a way which was calculated to deceive. I consider it to be unobjectionable. I therefore reject the second ground of challenge.

[21] What was the Minuter's state of mind at the stage when the challenged questions were put to him, whether his answers are to be properly construed as being confessions to having had penetrative sexual intercourse while the complainer was asleep and what weight should be attached to those answers are matters which can be explored in front of a jury.

Scottish High Court of Justiciary Decisons

Introduction

The facts

Submissions

Decision [14] I have decided that the answers given in the challenged part of the interview are admissible evidence.

Decision
[14] I have decided that the answers given in the challenged part of the interview are admissible evidence.