Appellant: Shead; Mason; Bruce & Co, Arbroath

Respondent: Bain, QC; Crown Agent

18 February 2011

[1] On 17 March 2009 after trial at Edinburgh High Court the appellant was convicted of rape. According to the libel, the offence was committed on an occasion between 20 August and 6 September 2007 at the appellant's flat at an address in Edinburgh. The complainer's evidence was that she became acquainted with the appellant through a colleague, JC. The complainer was 17 years old. The appellant was 46. On the day of the incident the complainer went to the appellant's flat to watch DVDs with him. The appellant dragged her into his bedroom, tied her to the bed with dressing gown cords and raped her. She repeatedly said "No" and tried to get away. She was bleeding and in pain. When the appellant untied her she got dressed and let her walk home. The complainer spoke to no-one about the incident until 6 September 2007 when she told JC, who then contacted the police.

[2] On medical examination the complainer was found to have a full length tear in her hymen. Her evidence was that she had been a virgin until the incident.

[3] The Crown also led evidence from two clinical psychologists, Dr Katherine Russell and Dr Erica Robb, who had assessed the complainer. There evidence was to the effect that she had an IQ of only 74, was socially naïve and sexually inexperienced, and had a complete lack of understanding of, or interest in, sexual matters. She was also highly suggestible, compliant and extremely immature emotionally.

[4] The appellant was detained at his flat under section 14 of the Criminal Procedure (Scotland) Act 1995 and cautioned. In reply to the caution he said "I'm flabbergasted. I have only slept with two people since I've been here." He then said "I've slept with Kirsty but she only came on Monday and another girl who lives over there, she's a care assistant. I can't remember her name, she's only 17 and a half years old." This latter description could be taken to refer to the complainer, who lived nearby and worked in a nursing home.

[5] The appellant was taken to St Leonards Police Station where he was interviewed under caution for nearly two hours. He admitted that he had tied up the complainer and had sex with her but said that he had done so with her consent and encouragement. That remained his position when he gave evidence. The police recovered two dressing gown cords in the appellant's flat.

[6] The appeal came before us on three grounds. The first was that in accordance with the decision of the Supreme Court in Cadder v HM Adv (2010 SLT 1125), the Crown's reliance on the appellant's statement at his police interview, given by him when he had not had access to legal advice, violated his right to a fair trial under article 6 of the Convention. The second was that if the evidence of that statement was admissible, (a) it was a mixed statement and (b) the trial judge misdirected the jury on the use that they could make of it. The third ground was that the evidence of the psychologists, and that of Dr Russell in particular, ought not to have been admitted.

[7] We have considered only the first of these grounds. The Crown has three answers to it, namely (1) that the appellant is precluded by section 118(8) of the 1995 Act from arguing that the evidence of his police interview was inadmissible, because counsel failed to object to it at the trial; (2) that the appellant has waived his right to found on Cadder because he told the police that he was "not bothered" about having a solicitor present; did not object to the leading of evidence of his statement at the time; and instead founded on the exculpatory parts of it; and (3) that even if evidence of the statement had not been led, there was still a sufficiency of evidence and no "real possibility" that the jury would have reached a different verdict (cf Cadder v HM Adv, supra, at para [64]).

[8] Counsel for the appellant has now moved us to receive two additional grounds of appeal that focus the Cadder point more clearly. The first of these widens the scope of the appeal by adding the contention that the Cadder principle applies also to the comments made by the appellant when he was detained and cautioned. The second raises a miscarriage of justice point relating to the failure of those acting for the appellant at the trial to "raise the appropriate objections." We do not read this as a narrow Anderson ground. We have doubts as to the relevancy of it. Nevertheless, in the circumstances, and particularly since the Crown does not oppose the motion, we shall allow these additional grounds to be received and argued.

[9] We understand that the questions raised as to the admissibility of the appellant's statements at the time of his detention and at the time of his police interview arise in 21 of the 44 current appeals on Cadder-related questions. There may be more cases where appeals on these points could yet be lodged. These questions are of critical importance. It is desirable in the interests of the due administration of justice that they should be resolved expeditiously.

[10] The section 118 and waiver points relating to the police interview, though separate, are closely linked. In our opinion, they raise logically prior questions that can and should be decided now. On the other hand, we consider that the point relating to the reply to caution should not be decided in advance of the decision of the Supreme Court on a closely related question in one of the fast-tracked appeals that have followed on the Cadder decision.

[11] We shall therefore order that the specific issues as to section 118 and waiver should be heard in this court by a bench of five judges. We think it desirable that the pending appeal in the case of Birnie v HM Adv ([2011] HCJAC 4), which appears to raise similar issues, should in due course be heard along with this appeal. The other questions in the present appeal will be held over meantime.