Scottish High Court of Justiciary Decisons

Act: Bain QC, AD; the Crown Agent

Alt: M C McKenzie; Aberdein Considine & Co, Aberdeen

15 June 2011

1.                 Procedure before the Sheriff

[1] The respondent is a chief inspector of police stationed at Aberdeen. He was charged on a summary complaint at the instance of the appellant with dangerous driving, in contravention of section 2 of the Road Traffic Act 1988. The specification was that, on 26 November 2008 on the B977 Belhelvie to Dyce Road, he instructed Constable Ashley Forbes: (i) to activate the warning lights and sirens on the car in which they were both travelling; and (ii) to move the car into the offside lane, thus precipitating a collision between two cars travelling in the opposite direction. Constable Forbes was charged with the same offence, and ultimately convicted of careless driving, contrary to section 3. The respondent was also charged with wilful neglect of duty by failing to prevent the dangerous driving and not reporting the nature of the driving to the appellant.

[2] The case called for trial against both accused on 19 August 2010. Evidence was led on that, and the following, day before the trial was adjourned until 2, and then 3, November 2010. The evidence was not completed over this four day span. However, it appears by then to have included testimony from the third police officer in the car, Inspector James Wood, which provided a first source of evidence that the respondent, who was head of Grampian roads policing, had indeed instructed the action libelled because he thought that he and Inspector Wood would otherwise be late for their flight to a police conference in Birmingham. Needless to say, their aircraft did not leave until over an hour after the scheduled take-off.

[3] On 9 December 2010 the case called again. Not surprisingly, the sheriff was anxious to know what progress was being made. He called the appellant's depute, counsel for the respondent and counsel for Constable Forbes into chambers. The depute advised the sheriff that, amongst other witnesses remaining to be called, there were the police officers who had investigated the incident and ultimately interviewed the respondent. Upon hearing this, the sheriff remarked: "Oh! That will be the Gestapo!" Perhaps sensing that others may not have shared his sense of humour, the sheriff added "I didn't say that". No action followed immediately upon the sheriff's remark. In particular, no objection to the sheriff's continued involvement in the case was taken when the trial proceeded on that day or on 10 December, when evidence of the interview of the respondent seems, according to the minutes, to have been adduced. Nothing was said by the appellant's depute about the effect of the remark when the trial again called on 13 and 16 December, when she answered the respondent's "no case to answer" submission. The submission was based, in part, upon the inadmissibility of the evidence of the interviews on the ground of unfairness (objection having been timeously taken earlier). It was only on 16 December that the sheriff sustained that submission and acquitted the respondent.

2.                 The Interview

[4] Over two months after the incident, a Detective Chief Superintendent (WG) was asked to assume the role of senior investigating officer. Along with a Chief Inspector, he elected to interview the respondent on 19 February 2009 at the respondent's police office in Bucksburn. This was the final component in a police investigation which had lasted some two weeks (stated case para [24]). By that time, the respondent was a suspect in relation to two crimes, said by the DCS to be "culpable and reckless conduct" and an "attempt to pervert the course of justice". The respondent was afforded the support of a colleague from the Police Federation at the interview.

[5] The interview commenced at about 10.30 am and, albeit that there were two 20 minute breaks, did not cease until 2.40 pm; a period in excess of four hours for what, ultimately, was a summary offence. The transcript runs to ninety two pages. It had been the appellant's depute's intention to play the video tapes of the whole of the interview; a course which, given the existence of transcripts, the sheriff was not inclined to permit. In that regard, it transpired that the depute had not viewed the video tapes and nothing appeared to turn upon the intonation of the respondent's voice or his facial or other expression in answering questions. The transcripts were subsequently agreed as accurate.

[6] Ultimately, the Sheriff ruled that the interview had been unfair and excluded it as evidence. Having set out the contentions of the parties at some length, he explains his reasoning over some three pages in the stated case (pp 15-17). First, he found that the evidence of the DCS was unsatisfactory. He considered that he had failed to answer certain questions posed in cross-examination, although he was not able to say if this was because of unwillingness or lack of comprehension. On the first day upon which he was cross-examined, the DCS had conceded that the interview had been unfair "in certain regards"; yet the following day, having re-read the transcript, he stated that it had been "absolutely fair". No satisfactory explanation had been given for this volte face. Accordingly, the Sheriff had doubts about the reliability of the DCS's testimony (see p 15).

[7] Secondly, the Sheriff concluded, having read the transcript, that the intention of the DCS in conducting the interview had not been for the purpose stated by him (infra). Rather, it had amounted to an effort to do what the Sheriff reports is said in Renton & Brown (Criminal Procedure (6^th ed) (para 24-43)) to be illegitimate in the context of police investigation; that is "...to press the accused into helping [the police] to make a case against himself...and ... to extract a confession". He held that the true object of the interview was to get the respondent to incriminate himself.

[8] From a starting point of the respondent being under suspicion of two crimes, the DCS had accepted that he had a planned strategy for the interview, which involved four areas of questioning. At one point he had said that his purpose had been "to allow him to comment on allegations which I wish to make to him". But later he had conceded that it was to "fill in gaps" in the inquiry. Once the interview has been concluded, the DCS then felt that he could report the case to procurator fiscal. The sheriff had already noted that, although, prior to the interview, the respondent had been told that the enquiry concerned "two crimes" involving the use of the police car (para [21]), he had not been told of the allegations against him (para [17]). The sheriff reasoned that it was difficult to maintain that the purpose was to obtain comment on allegations, if these allegations were never put.

[9] Although the sheriff may not be accurate when he narrates that there were six occasions when the respondent asked for, but was not given, details on the nature of the allegations, it is striking to observe that, at the start of the interview, the respondent was only told that the inquiry was about "the circumstances of a culpable and reckless conduct and subsequent attempt to pervert the course of justice" at the time of the incident. Although cautioned generally at common law, the respondent was not told at the outset of the interview, or for some time thereafter, that he was the suspect in a criminal investigation. In particular, it is not until the eighty first page of the transcript that the allegation of fact, notably that it was the respondent who: "asked or instructed... activating blue lights, not stopping at the accident and getting yourself to the airport because you were going to be late", was put. Ultimately, as the sheriff notes, the respondent was not charged with culpable and reckless conduct and he was never told what the alleged attempt to pervert the course of justice amounted to.

[10] Finally, the sheriff also held that the interview was oppressive in terms of repetitive questioning and length. Given the failure to specify the nature of the allegation, the sheriff reached the view that the respondent had not been able to make an informed decision on whether he ought to have obtained the advice of a solicitor.

[11] It should be observed that it was only on the eighty first page of the interview that the respondent appeared to make an admission, capable of corroborating the evidence of Inspector Wood that he had instructed the action, to the effect that he had "made an error of judgment". He repeated that admission on the final page of the interview, by which time he was protesting of his strong ethical values and integrity and swearing on his daughters' lives that he had not done anything deliberate to put anyone in danger.

3.                 Submission

[12] The Advocate Depute contended that, on the basis of Allan v HM Advocate 2009 SCCR 331, the sheriff ought not to have communicated anything to parties in chambers. It was maintained that the remark made by the sheriff, had it been overheard by the informed and independent observer, would have carried with it an inference of bias on the part of the sheriff. On being pressed on where that bias was directed, it was said that it was against the police instructed to carry out the investigation of the respondent's actions. Furthermore, the eventual decision of the sheriff on the admissibility of the interview disclosed that he had actually been biased.

[13] The remark had not been a joke, it had been an insult to the professional integrity of the officers about to give evidence. It was in the public interest that trials were conducted in an independent and impartial manner and this had not been done. Reference was made to Walls v Heywood 2000 SCCR 21 and Bradford v McLeod 1985 SCCR 379. If the circumstances would lead a fair minded and informed observer to conclude that there was a real possibility, or a real danger, that the tribunal was biased, the decision ought to be set aside (Porter v McGill [2002] 2AC 357, Lord Hope of Craighead approving In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700, Lord Phillips of Worth Matravers MR at 726-727; Bryceland Ptnr 2006 SCCR 291).

[14] The Sheriff had failed to address the test of fairness and had not stated in what way the interview had been unfair. In terms of the test in Lord Advocate's Reference (No 1 of 1983) (1984 JC 52 (LJG (Emslie) at 59; approved in Mitchell v HM Advocate 2008 SCCR 469, LJG (Hamilton) at para [148]), answers to police questioning were admissible unless extracted by unfair or improper means. There had been nothing in the way of placing cross-examination, pressure and deception in close company as described in that case. There had been breaks in the interview, which the respondent had attended voluntarily.

4.                 Decision

[15] Allan v HM Advocate (supra) is concerned with pronouncements by a judge in solemn proceedings made in chambers concerning the substance of a case; in that instance, the potential sentence. It counsels against such pronouncements because they are not recorded and are made in the absence of the accused. It is not a prohibition against a sheriff making administrative enquiries of parties about a summary case prior to the calling of that case at a trial (or continued trial) diet. There is no dispute about what occurred in chambers in the present case and nothing turns upon what was said in Allan in that context. Both parties were present before the sheriff in chambers. The sheriff was not making any decisions on the substance of the case but enquiring informally about progress.

[16] In Wallace v Thomson 2009 SCCR 421, the sheriff had, in open court, made a flippant remark to a witness. This had prompted a ground of appeal concerning his assessment of credibility and reliability. This court said this:

"[18] Humour is not without its place in the criminal courts. No doubt, when used by a judge or sheriff, it requires to be used sparingly, with caution and not inappropriately. However, a Sheriff may consider that an element of levity might be temporarily introduced for a particular purpose; perhaps to put a nervous witness at his ease or to defuse a moment of unnecessary tension between procurators. No doubt, if the Court turned a trial into something akin to a comedy, an accused would have grounds of complaint were he to be convicted. Nothing of that kind has occurred in this case. The Sheriff appears to have made one flippant remark intended to be humorous. Perhaps it was; although it seems to have lost something in its translation to the printed page. The suggestion that an informed and reasonable observer would consider that this was an element demonstrating partiality is without foundation".

Very similar considerations apply in this case. The remark made by the sheriff was in chambers. It was not delivered in an open public forum. It was spontaneous and flippant. It may, or may not, have been regarded as humorous by those in chambers, even if, with hindsight, it cannot now be seen as either witty or appropriate. But the suggestion, which appeared to be implicit in the submission presented to the court, that the sheriff was actually comparing the behaviour of the Grampian police, in questioning a fellow police officer in Bucksburn police station, with the tactics of the Gestapo during the Second World War, must be dismissed as bordering on the ludicrous.

[17] There is no prospect of a fair-minded and informed observer concluding, on hearing the words used in chambers in the context of the trial proceedings, that the sheriff was biased against the appellant (and in particular the police witnesses to be adduced). Furthermore, having regard to the way in which the sheriff approached the objection to the admissibility of the interview and the reasoning which he employed, there is equally no prospect of such an observer forming the view that the sheriff was biased when deciding that issue.

[18] An allegation that a judicial office holder is biased against the Crown, in the form of the local procurator fiscal, and investigating police officers is an extremely serious one. It should only be made where there is evidence to support it. Such evidence is not present in this case and the court is bound to comment that it is regrettable that the appellant appears to have lacked a sense of perspective in this matter. The court notes in this regard that the appellant's depute took no action at all in relation to the remark until after the sustaining of the respondent's submission. If the depute had seriously considered that the remark displayed bias, then she ought to have taken action at the time. Her failure to do so strongly suggests that no such bias was inferred and the court notes that the Advocate Depute did not submit that the appellant's depute had, in fact, so regarded the remark at any time.

[19] In relation to the interview itself, it is important to have firmly in mind that before an extra judicial admission of an accused person can be regarded as admissible in evidence, it must be proved by the Crown to have been fairly obtained. At the time of Lord Advocate's Reference (No 1 of 1983) (supra), the procedural position was that the assessment of fairness was primarily a matter for the jury. Thus, the dicta in that case, which related to solemn proceedings, were to the effect that it was only if the judge considered that no reasonable jury could have held that the answers had been fairly obtained that they could be excluded as inadmissible in law. That all changed with the Full Bench decision in Thompson v Crowe 2000 JC 173 which, overruling Balloch v HM Advocate 1977 JC 23, determined that admissibility was a matter for the judge's assessment as a matter of law. In the event of an objection, it was for the judge, in the first instance, to determine questions of disputed fact and thus whether, on a balance of probability, an admission was fairly obtained.

[20] In the present case, therefore, the issue is not whether it had been demonstrated before the sheriff that the answers at interview were unfairly obtained. It is one of whether the sheriff can be said to have erred in some way in determining that the Crown had failed to demonstrate that the interview process was fair and that the admissions were therefore made spontaneously and voluntarily. Even if the sheriff were demonstrated to have erred in his approach, the appeal cannot succeed unless the Crown can demonstrate on the evidence that, whatever the sheriff's errors, the interview was fair.

[21] The court does not consider that the sheriff can be said to have erred in the substance of his reasoning. At the heart of his decision is his rejection of the evidence of the DCS that his purpose in interviewing the respondent was, for example, to give him an opportunity to tell his side of events. The sheriff did not believe him. Quite the contrary, he concluded, from the manner in which the interview had been carried out and the surrounding circumstances, that the true intention had been to prompt the respondent into making an admission. Such an admission was ultimately essential for a sufficiency of evidence in circumstances where the Crown elected to prosecute two of the three occupants of the car on a single complaint. Once the sheriff had reached his conclusion on the motivation of the DCS, he was bound to sustain the objection. The basis for doing so is that it remains the law of Scotland that: "It is not the function of the police... to direct their endeavours to obtaining a confession from the suspect to be used as evidence against him at the trial" (Chalmers v HM Advocate 1954 JC 66, LJG (Cooper) at 78).

[22] In any event, there was adequate material for the sheriff to form the view that the manner in which the interview had been conducted had not been shown to be fair and to exclude the respondent's answers on that basis. Despite the submission to the contrary, the interview involved a degree of deception in that the respondent was not told of the nature of the criminal allegation against him. He was certainly not told that the interview concerned facts which would form the basis for charges of dangerous driving and neglect of duty. The interview undoubtedly involved repetitive and leading questioning over what was, for a relatively minor allegation of wrongful conduct, a prolonged and lengthy period. Given what might be viewed as the plea ad misericordia at the end of the interview, there was a strong basis for holding that what had taken place involved pressurising the respondent. Once these elements of pressure, cross-examination and deception were seen in close company, the sheriff was entitled to exclude the answers, notably the admissions made towards the end of the interrogation, not as the results of robust questioning but as not fairly obtained.

[23] The appeal must therefore be refused.